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Fisher v. Lexington Health Care

December 16, 1999

FELICIA FISHER ET AL., APPELLEES, V. LEXINGTON HEALTH CARE, INC., ET AL., APPELLANTS.


The opinion of the court was delivered by: Justice Bilandic

Agenda 30-September 1999.

The plaintiffs, Felicia Fisher and Latisha Coleman, filed this action in the circuit court of Du Page County against their former employer, nursing home operator Lexington Health Care, Inc. (Lexington), and Carmen Necum. The plaintiffs sought to imply a private right of action under section 3-608 of the Nursing Home Care Act (Act) (210 ILCS 45/3-608 (West 1996)) for retaliatory conduct by a nursing home against its employees. The circuit court granted the defendants' motion to dismiss the complaint for failure to state a cause of action. The appellate court reversed. 301 Ill. App. 3d 547. We now affirm the circuit court and hold that there is no implied private right of action for nursing home employees under section 3-608 of the Nursing Home Care Act.

FACTS

This case comes to us from the circuit court's dismissal of the plaintiffs' complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1996)). The following factual allegations, taken from the plaintiffs' complaint, must therefore be accepted as true for purposes of this appeal.

The plaintiffs each worked as licensed practical nurses for Lexington at its Lombard, Illinois, nursing home facility. Defendant Carmen Necum was an acting director of that facility. On July 30, 1996, Alice Windt, an elderly resident of the nursing home, was left alone in her room by nursing home personnel. She was later discovered by a nurse's assistant hanging from her bed, stuck under her lap bar. The plaintiffs were both on duty when Mrs. Windt was discovered. They found Mrs. Windt with no pulse and efforts to resuscitate her failed. Coleman began writing an incident report concerning Mrs. Windt's death, but was instructed by her supervisor to stop writing the report and to take no further action until another supervisor arrived. The supervisor also instructed both Fisher and Coleman to have no conversations with the Windt family. When the family arrived and asked Fisher and Coleman what had happened, Fisher and Coleman informed the family that they could not discuss the circumstances of their mother's death. Later, however, Mrs. Windt's son approached the plaintiffs privately, and Fisher told him that he should order an autopsy.

The nurse supervisor then summoned Coleman into her office and told her that "they have to get their story straight," and that "they have to word the chart the right way." The supervisor further admonished Coleman to "act professional, and be a team player, because their ass is in a sling." Coleman told the supervisor that she would not prepare a false report. As a result, the supervisor prepared the incident report herself. The supervisor then informed Mrs. Windt's son that his mother's death appeared to have been the result of natural causes.

Shortly thereafter, the Windt family filed a complaint with the Illinois Department of Public Health (Department) against Lexington alleging violations of the Nursing Home Care Act. In conjunction with this complaint, Coleman and Fisher provided statements to Department investigators, Lombard police officers and the Du Page County coroner's office.

After Coleman and Fisher cooperated with the investigations into Mrs. Windt's death, they allegedly began to be subjected to harassment by their supervisors. Two nursing supervisors followed Coleman and Fisher around the facility as they performed their work, scolding and berating them. They were accused of being unprofessional, of doing a poor job, and of working too slowly. In addition to this harassment, defendant Carmen Necum prepared reports criticizing the plaintiffs' work. Throughout most of this period, Coleman and Fisher continued to work together. On October 14, 1996, however, Fisher was transferred to duties on another floor. Three days later, on October 17, 1996, Fisher was fired. Coleman resigned the next day, allegedly as a result of the continued harassment and intimidation.

On May 12, 1997, Coleman and Fisher filed this action against Lexington, Necum, and other defendants. The sole count of the complaint purported to allege an implied private right of action for damages pursuant to section 3-608 of the Nursing Home Care Act. The plaintiffs sought damages under this section for the defendants' alleged retaliatory conduct, which culminated in Fisher's discharge and Coleman's resignation.

The defendants moved to dismiss the complaint for failure to state a cause of action. The circuit court granted the motion, ruling that no private right of action could be implied for these plaintiffs under the Nursing Home Care Act. The circuit court granted the plaintiffs leave to amend their complaint. The plaintiffs did not file an amended complaint.

The appellate court reversed, with one justice dissenting. 301 Ill. App. 3d 547. The appellate court majority held that section 3-608 implied a private right of action for retaliatory conduct by a nursing home against its employees.

We allowed the defendants' petition for leave to appeal. 177 Ill. 2d R. 315. We now reverse the judgment of the appellate court.

ANALYSIS

The plaintiffs seek to pursue an action for damages under section 3-608 of the Nursing Home Care Act. Section 3-608 of the Act provides as follows:

"A [nursing home facility] licensee or its agents or employees shall not transfer, discharge, evict, harass, dismiss, or retaliate against a resident, a resident's representative, or an employee or agent who makes a report under Section 2-107, brings or testifies in an action under Sections 3-601 through 3-607, or files a complaint under Section 3-702, because of the report, testimony, or complaint." 210 ILCS 45/3-608 (West 1996).

Section 2-107 requires agents and employees of nursing home facilities who become aware of abuse or neglect of a resident to report that abuse to the Department. 210 ILCS 45/2-107 (West 1996). Sections 3-601 through 3-607 address the right of nursing home residents to sue for damages and other relief. 210 ILCS 45/3-601 through 3-607 (West 1996). Section 3-702 sets forth the procedures for requesting an investigation by the Department into suspected violations of the Act. 210 ILCS 45/3-702 (West 1996).

Section 3-608 does not expressly grant nursing home employees the right to seek damages for a violation of this provision. Neither does any other provision of the Act expressly provide nursing home employees with the right to pursue an action for damages under section 3-608. The lack of such explicit language, however, is not necessarily dispositive. A court may determine that a private right of action is implied in a statute. Rodgers v. St. Mary's Hospital, 149 Ill. 2d 302, 308 (1992); Sawyer Realty Group, Inc. v. Jarvis Corp., 89 Ill. 2d 379, 386-87 (1982). The plaintiffs contend that section 3-608 implies a private right of action for nursing home employees who are retaliated against by their employer.

This court has delineated four factors to be considered in determining if a private right of action may be implied from a statute. Implication of a private right of action is appropriate if: (1) the plaintiff is a member of the class for whose benefit the statute was enacted; (2) the plaintiff's injury is one the statute was designed to prevent; (3) a private right of action is consistent with the underlying purpose of the statute; and (4) implying a private right of action is necessary to provide an ...


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