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Fisher v. Lexington Health Care

December 09, 1998


Appeal from the Circuit Court of Du Page County. No. 97--L--510 Honorable Rodney W. Equi, Judge, Presiding.

The opinion of the court was delivered by: Justice Rapp


Plaintiffs, Felicia Fisher and Latisha Coleman, former employees of defendant Lexington Health Care, Inc. (Lexington), filed a complaint against Lexington and defendant Carmen Necum asserting an implied statutory cause of action pursuant to section 3--608 of the Nursing Home Care Act (210 ILCS 45/3--608 (West 1996)). Plaintiffs allege that they were victims of retaliatory harassment, intimidation, and demotion as a result of their reporting of and cooperation in the investigation of an elder abuse and neglect case. The trial court dismissed plaintiffs' case pursuant to section 2--615 of the Civil Practice Law (735 ILCS 5/2- -615 (West 1996)), holding that the Nursing Home Care Act (210 ILCS 45/1--101 et seq. (West 1996)) did not create a private cause of action for nursing home employees. The issue presented for decision is whether the Nursing Home Care Act impliedly creates a private cause of action for nursing home employees. We conclude that the implication of such a private cause of action is suggested by the legislative context of the Nursing Home Care Act and necessary to accomplish the legislature's purposes in enacting the statute. We therefore reverse and remand.

Although defendants dispute the facts alleged in plaintiffs' complaint, because this case comes before us after a motion to dismiss was granted, we must accept as true the well-pleaded factual allegations but not the legal Conclusions contained in plaintiffs' complaint. See Talbert v. Home Savings of America, F.A., 265 Ill. App. 3d 376, 379 (1994). Those alleged facts as necessary for this decision are repeated below.

Lexington owns and operates a nursing home located in Lombard, Illinois. Lexington is licensed by the Department of Public Health (the Department), pursuant to the Nursing Home Care Act. Defendant Carmen Necum (Necum) was employed by Lexington as its acting director.

Plaintiff Latisha Coleman (Coleman) is a licensed practical nurse who was employed by Lexington from May 1992 until October 17, 1996. Plaintiff Felicia Fisher (Fisher) is also a licensed practical nurse who was employed by Lexington from March 1992 until October 18, 1996. Throughout their employment, neither Coleman nor Fisher had ever been reprimanded or otherwise criticized about their job performance.

Plaintiffs were assigned to the same floor of Lexington's Lombard nursing home, and they were both on duty the morning of July 30, 1996. That morning, Alice Windt, an elderly resident of the nursing home, was removed from the dining room at the request of a supervisor who felt that she had been inordinately disruptive. Upon her removal from the dining room, Mrs. Windt was returned to her room, where she was left unattended with the door shut. Thereafter, a nurse's assistant discovered Mrs. Windt hanging from her lap bar. The nurse's assistant sought the assistance of plaintiffs, who immediately responded and attempted to resuscitate Mrs. Windt. Unfortunately, Mrs. Windt died.

In accordance with her duties pursuant to the Nursing Home Care Act, Coleman then began writing an incident report relating the facts and circumstances surrounding Mrs. Windt's death. As she did so, however, her supervisor demanded that she stop writing the report and take no further action until another supervisor arrived. Coleman had never before been instructed not to chart events as soon as possible.

Fisher contacted Mrs. Windt's son to inform him of her death. As she did so, however, the supervisor instructed Fisher and Coleman to have no further conversations with the Windt family. Shortly thereafter, Mrs. Windt's children arrived and inquired of Fisher and Coleman what had happened to their mother. Coleman informed Mrs. Windt's children that they could not discuss the circumstances of Mrs. Windt's death. Mrs. Windt's son later approached Coleman and Fisher privately and again asked what had happened. Fisher responded that he should order an autopsy.

Mrs. Windt's son then approached the nurse supervisor on duty but was told that he would have to wait until she finished talking to Fisher and Coleman. As he waited, the nurse supervisor summoned Coleman into her office and told her that they had to get their story straight and that they had to word the chart the right way. Coleman was further admonished to "act professional, and be a team player," because their "ass is in a sling." Coleman responded that she would not prepare a false report. As a result, Coleman was relieved of her chart-preparing duties, and the nurse supervisor prepared the incident report relating to Mrs. Windt's death, even though the supervisor had not been present. The nurse supervisor then advised Mrs. Windt's son that his mother's death appeared to have been the result of natural causes. Mrs. Windt's son then asked that an autopsy be performed on his mother's body.

Later that morning, one of Lexington's administrators, along with two supervisors, confronted Coleman and Fisher about Mrs. Windt's death and the impending investigation. Fisher and Coleman were advised not to say that when they found Mrs. Windt they found her "cold and stiff" because "it would make us look bad."

Mrs. Windt's family filed an administrative complaint with the Department against Lexington in connection with her death, and the Department investigated Mrs. Windt's death. Plaintiffs gave the Department and police officers statements and agreed to testify about Mrs. Windt's death at the coroner's inquest.

Plaintiffs allege that after they agreed to cooperate with the investigation Lexington's supervisors engaged in harassing conduct. This conduct included following them around the facility as they performed their rounds, scolding them, and berating them. They were accused of being unprofessional, doing a poor job, and working too slowly. During the pendency of the investigations, supervisors told Fisher and Coleman that they should be team players and not get anybody into trouble. Additionally, written reports that criticized their work were filed in their personnel records. Plaintiffs allege that prior to the death of Mrs. Windt no supervisor had ever criticized, complained of, or otherwise expressed dissatisfaction with their work but, rather, they had always been praised for their efforts and job performance. Fisher was also transferred to another floor of the nursing home.

Lexington fired Fisher on October 17, 1996. On October 18, 1996, Coleman resigned, allegedly due to the work conditions imposed by Lexington. On May 12, 1997, plaintiffs filed a complaint against defendants alleging that defendants violated section 3--608 of the Nursing Home Care Act by ...

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