Larsen v. Provena Hospitals

Illinois Official Reports

Appellate Court

Larsen v. Provena Hospitals, 2015 IL App (4th) 140255

Appellate Court L. ROYCE LARSEN, M.D., Plaintiff-Appellant, v. PROVENA

Caption HOSPITALS, d/b/a PROVENA UNITED SAMARITANS

MEDICAL CENTER, Defendant-Appellee.–L. ROYCE LARSEN,

M.D., Plaintiff-Appellee, v. PROVENA HOSPITALS, d/b/a

PROVENA UNITED SAMARITANS MEDICAL CENTER,

Defendant-Appellant.

District & No. Fourth District

Docket Nos. 4-14-0255, 4-14-0261 cons.

Filed February 26, 2015

Held In action arising from a staff physician’s complaint alleging that

(Note: This syllabus defendant hospital declined to renew plaintiff’s staff membership and

constitutes no part of the clinical privileges in violation of the Whistleblower Act, the appellate

opinion of the court but court, in response to four questions certified by the trial court for

has been prepared by the interlocutory review pursuant to Illinois Supreme Court Rule 308(a),

Reporter of Decisions answered that a physician is required to plead actual or deliberate

for the convenience of intention to harm his person to state a claim for willful and wanton

the reader.) misconduct under the Hospital Act and Lo, a physician does not state a

claim for willful and wanton misconduct under the Hospital Act and

Lo by pleading actual or deliberate intention to harm his professional

reputation, a physician’s claim for violation of the Whistleblower Act

does not constitute a claim for civil damages subject to peer review

immunity afforded by the Hospital Act, and the payment to a hospital

under assignment from a Medicaid recipient, pursuant to the Social

Security Act, is not funding by the state as defined by the

Whistleblower Act.

Decision Under Appeal from the Circuit Court of Vermilion County, No. 11-L-88; the

Review Hon. Steven L. Garst, Judge, presiding.

Judgment Certified questions answered; cause remanded.

Counsel on Michael K. Goldberg (argued), Robert A. Bauerschmidt, and Jenna E.

Appeal Milaegar, all of Goldberg Law Group, LLC, of Chicago, for L. Royce

Larsen.

David B. Honig (argued) and Christopher C. Eades (argued), both of

Hall, Render, Killian, Heath & Lyman, P.C., of Indianapolis, Indiana,

for Provena Hospitals.

Panel JUSTICE STEIGMANN delivered the judgment of the court, with

opinion.

Justices Knecht and Turner concurred in the judgment and opinion.

OPINION

¶1 In May 2011, defendant, Provena Hospitals, d/b/a Provena United Samaritans Medical

Center (Provena), declined to renew the medical staff membership and clinical privileges of

plaintiff, L. Royce Larsen, M.D. In July 2013, Larsen filed a four-count first amended

complaint, alleging, in part, that Provena retaliated against him in violation of the

Whistleblower Act (740 ILCS 174/1 to 40 (West 2010)). In addition to injunctive relief, Larsen

sought damages as a result of Provena’s “willful and wanton misconduct” in harming his

medical practice and professional reputation.

¶2 In August 2013, Provena filed a motion to dismiss Larsen’s complaint under section 2-615

of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)). Provena alleged that

because Larsen failed to sufficiently plead willful and wanton misconduct as defined by

section 10.2 of the Hospital Licensing Act (Hospital Act) (210 ILCS 85/10.2 (West 2010))–a

provision that provides Provena immunity against civil damages absent such misconduct–he

failed to state a cause of action upon which the trial court could grant relief. Provena also urged

the court to dismiss Larsen’s retaliation claim, alleging that the protections afforded by the

Whistleblower Act did not apply because Larsen failed to allege that Provena received state

funding, which was required to invoke such protection.

¶3 Following a December 2013 hearing, the trial court partially granted Provena’s motion to

dismiss Larsen’s complaint. Relying on Lo v. Provena Covenant Medical Center, 356 Ill. App.

3d 538, 826 N.E.2d 592 (2005), the court found that harm to a physician’s medical practice and

professional reputation was “not the type of harm required to state a claim for willful and

wanton misconduct” under the Hospital Act. The court, however, denied Provena’s motion to

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dismiss Larsen’s retaliation claim, finding, in pertinent part, that (1) the immunity provided by

section 10.2 of the Hospital Act did not preclude that claim and (2) the Whistleblower Act

applied because Provena received state funding in the form of Medicaid payments.

¶4 In May 2014, the trial court certified the following four questions for interlocutory review

pursuant to Illinois Supreme Court Rule 308(a) (eff. Feb. 26, 2010):

“[1.] Is a doctor required to plead actual or deliberate intention to harm his person

[to] state a claim for willful and wanton misconduct under the *** [Hospital Act] ***

and Lo?

[2.] Alternatively, does a doctor state a claim for willful and wanton misconduct

under the *** [Hospital Act] *** and Lo *** by pleading actual or deliberate intention

to harm his professional reputation?

***

[3.] Does plaintiff’s claim for violation of the *** Whistleblower [Act] constitute a

claim for civil damages subject to peer review immunity afforded by the *** [Hospital

Act]?

[4.] Is payment to a hospital under assignment from a Medicaid recipient, pursuant

to the Social Security Act, § 1902(a)(32), ‘funding’ by the State as defined by the ***

[Whistleblower Act]?”

¶5 We answer the first certified question in the affirmative, the remaining three certified

questions in the negative, and remand for further proceedings.

¶6 I. BACKGROUND

¶7 The following facts were gleaned from the supporting record provided pursuant to Illinois

Supreme Court Rule 328 (eff. Feb. 1, 1994).

¶8 In May 2011, Provena–specifically, the Provena Central Illinois Region Board–denied

Larsen’s application to renew his medical staff membership and clinical privileges, which

Provena and its predecessors had renewed essentially biennially for the past 31 years.

¶9 In July 2013, Larsen filed a first amended complaint, alleging that Provena (1) violated the

Whistleblower Act (count I); (2) tortiously interfered with his prospective business advantages

(count II); (3) breached contractual medical-staff bylaws by neither providing a statement of

charges nor conducting a hearing prior to the denial of Larsen’s application (count III); and (4)

violated his fundamental rights (count IV). With the exception of count I, Larsen claimed that

Provena’s denial was “willful and wanton” because it violated contractual bylaws and

tarnished his unblemished reputation as a general surgeon and physician. In count I, Larsen

claimed that Provena denied his application to renew his clinical privileges in retaliation for

reports he made to government agencies that revealed Provena’s violations of various state and

federal laws. In his prayer for relief, Larsen sought (1) declaratory and injunctive relief; (2)

economic, consequential, and punitive damages; and (3) attorney fees.

¶ 10 In August 2013, Provena filed a motion to dismiss Larsen’s complaint under section 2-615

of the Code. Provena claimed that because Larsen did not sufficiently plead willful and wanton

misconduct under section 10.2 of the Hospital Act, Larsen failed to state a cause of action upon

which the trial court could grant relief. Provena also urged the court to dismiss Larsen’s

retaliation claim, asserting that because Larsen failed to allege that Provena received state

funding, he was not a protected employee as defined by the Whistleblower Act.

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¶ 11 In response, Larsen argued that because he alleged harm to his medical practice and

professional reputation as a result of Provena’s denial, which (he asserts) occurred without a

hearing, in violation of the contractual medical-staff bylaws, he sufficiently pleaded willful

and wanton misconduct as defined by section 10.2 of the Hospital Act. Larsen also averred that

he sufficiently pleaded violations of the Whistleblower Act.

¶ 12 Following a December 2013 hearing, the trial court entered a March 19, 2014, order,

dismissing counts II and IV of Larsen’s first amended complaint. (At the December 2013

hearing, Provena informed the court that it was not seeking to dismiss Larsen’s prayer for

injunctive relief as to count III.) Relying on this court’s decision in Lo, the trial court found that

harm to a physician’s medical practice and professional reputation “was not the type of harm

required to state a claim for willful and wanton misconduct” under section 10.2 of the Hospital

Act. The court, however, denied Provena’s motion to dismiss Larsen’s retaliation claim,

finding, in pertinent part, that (1) the immunity provided by section 10.2 of the Hospital Act

did not preclude that claim and (2) the Whistleblower Act applied because Provena received

state funding in the form of Medicaid payments.

¶ 13 That same day, the trial court entered an order pursuant to Rule 308(a), finding the

existence of substantial grounds for differences of opinion on questions of law and that an

immediate appeal of its order may materially advance the termination of the litigation. The

court sua sponte granted (1) Larsen leave to appeal the first two certified questions (case No.

4-14-0255) and (2) Provena leave to appeal the final two certified questions (case No.

4-14-0261). In April 2014, the parties timely filed their respective applications for leave to

appeal pursuant to Illinois Supreme Court Rule 308(b) (eff. Feb. 26, 2010). Later that month,

this court allowed both applications, and, on our own motion, we have consolidated these

cases.

¶ 14 II. ANALYSIS

¶ 15 A. The Standard of Review

¶ 16 “The scope of review in an interlocutory appeal brought under Rule 308 is limited to the

certified question.” Spears v. Association of Illinois Electric Cooperatives, 2013 IL App (4th)

120289, ¶ 15, 986 N.E.2d 216. A reviewing court should restrict its review to certified

questions of law and decline to answer when the ultimate disposition depends upon resolution

of factual predicates. Id. “With rare exceptions, we do not expand the question under review to

answer other, unasked questions.” Giangiulio v. Ingalls Memorial Hospital, 365 Ill. App. 3d

823, 829, 850 N.E.2d 249, 255 (2006). “A certified question pursuant to Rule 308 is reviewed

de novo.” Spears, 2013 IL App (4th) 120289, ¶ 15, 986 N.E.2d 216.

¶ 17 B. Section 10.2 of the Hospital Act

¶ 18 Because a majority of the certified questions posed concern section 10.2 of the Hospital

Act, we provide the language of that statutory provision, as follows:

“Because the candid and conscientious evaluation of clinical practices is essential to

the provision of adequate hospital care, it is the policy of this State to encourage peer

review by health care providers. Therefore, no hospital and no individual who is a

member, agent, or employee of a hospital, hospital medical staff, hospital

administrative staff, or hospital governing board shall be liable for civil damages as a

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result of the acts, omissions, decisions, or any other conduct, except those involving

[willful] or wanton misconduct, of a *** credential committee, peer review committee,

or any other committee or individual whose purpose, directly or indirectly, is *** for

improving patient care within a hospital, or the improving or benefiting of patient care

and treatment, whether within a hospital or not, or for the purpose of professional

discipline including institution of a summary suspension in accordance with Section

10.4 of this Act and the medical staff bylaws. *** For the purposes of this Section,

‘[willful] and wanton misconduct’ means a course of action that shows actual or

deliberate intention to harm or that, if not intentional, shows an utter indifference to or

conscious disregard for a person’s own safety and the safety of others.” (Emphasis

added.) 210 ILCS 85/10.2 (West 2010).

¶ 19 C. The Certified Questions in Case No. 4-14-0255

¶ 20 The trial court certified the following two questions for interlocutory review:

“[1.] Is a doctor required to plead actual or deliberate intention to harm his person

[to] state a claim for willful and wanton misconduct under the *** [Hospital Act] ***

and Lo?

[2.] Alternatively, does a doctor state a claim for willful and wanton misconduct

under the *** [Hospital Act] *** and Lo *** by pleading actual or deliberate intention

to harm his professional reputation?”

¶ 21 1. This Court’s Decision in Lo

¶ 22 In Lo, 356 Ill. App. 3d at 538, 826 N.E.2d at 595, the plaintiff sued the defendant for breach

of contract, alleging that the defendant involuntarily restricted his clinical privileges without a

hearing, thereby violating the contractual agreement between the parties as provided by the

medical-staff bylaws. The defendant later filed a motion to dismiss the plaintiff’s suit under

section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2002)), claiming, in pertinent

part, immunity from civil damages under section 10.2 of the Hospital Act. Lo, 356 Ill. App. 3d

at 538-39, 826 N.E.2d at 595. The trial court later granted the defendant’s motion to dismiss.

Id. at 539, 826 N.E.2d at 595.

¶ 23 This court affirmed the trial court’s judgment, noting that section 10.2 of the Hospital Act

provided a statutory definition of the phrase “willful and wanton misconduct” that differed

from the “ordinary definition” of “great carelessness or gross negligence.” Id. at 544-45, 826

N.E.2d at 599-600. We continued our analysis, as follows:

“In this case *** we are dealing not with the ordinary meaning of ‘[willful] and

wanton misconduct’ but with a statutory definition. ‘In construing statutes the ordinary,

usual[,] and commonly accepted definitions of the words employed therein are to be

taken as the correct definitions of such words, unless the statute gives special

definitions to the contrary ***.’ (Emphasis added.) Wahlman v. C. Becker Milling Co.,

279 Ill. 612, 622, 117 N.E. 140, 144 (1917). Plaintiff has alleged no facts, and has

offered no evidence, from which we could reasonably infer that defendant ‘actual[ly]

or deliberate[ly] inten[ded] to harm’ him. See 210 ILCS 85/10.2 (West 2002). His ‘own

safety’ was never at issue in this case. See 210 ILCS 85/10.2 (West 2002). Because

plaintiff’s cause of action does not fit within the specialized definition of ‘[willful] and

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wanton misconduct’ in section 10.2, the statute bars him from recovering damages for

defendant’s breach of contract.” Id. at 545, 826 N.E.2d at 600.

¶ 24 2. This Court’s Response to the Certified Questions

¶ 25 Larsen argues that the trial court’s interpretation of the phrase “willful and wanton

misconduct” disregards the two-part definition contained within section 10.2 of the Hospital

Act. Specifically, Larsen contends that the court incorrectly conflated “the issue of utter

indifference or conscious disregard for ‘a person’s own safety or the safety of others’ with the

issue of actual or deliberate intention ‘to harm,’ making allegations of physical harm required

*** to show willful and wanton misconduct under section 10.2” of the Hospital Act. Larsen

then asserts that the first definition does not require a showing of a specific type of harm

because “the ‘actual’ or ‘deliberate’ intent of the actor is the primary focus.” We disagree.

¶ 26 “Our primary objective in construing a statute is to ascertain and give effect to the

legislative intent, and the surest most reliable indicator of that intent is the plain and ordinary

meaning of the statutory language itself.” People v. Chapman, 2012 IL 111896, ¶ 23, 965

N.E.2d 1119. When the statutory language is clear and unambiguous, this court will apply the

statute without aid of statutory construction. Id. “In determining the plain meaning of the

statutory terms, we consider the statute in its entirety, keeping in mind the subject it addresses

and the apparent intent of the legislature in passing it.” Id.

¶ 27 The legislative objective of section 10.2 of the Hospital Act is to “foster effective

self-policing by members of the medical profession in matters unique to that profession and to

thereby promote the legitimate State interest in improving the quality of health care in Illinois.”

(Internal quotation marks omitted.) Szczerbaniuk v. Memorial Hospital for McHenry County,

180 Ill. App. 3d 706, 711, 536 N.E.2d 138, 142 (1989). In pursuit of that goal, section 10.2

places “limitation[s] on the remedies available to physicians aggrieved by a hospital’s

peer-review process.” Frigo v. Silver Cross Hospital & Medical Center, 377 Ill. App. 3d 43,

68, 876 N.E.2d 697, 720 (2007). Specifically, section 10.2 grants immunity from “civil

damages as a result of the acts, omissions, decisions, or any other conduct” of specific

peer-review committees tasked with the goal of improving patient care. 210 ILCS 85/10.2

(West 2010). An exception to the immunity afforded occurs if the aggrieved physician can

show that the peer-review committee at issue engaged in “ ‘[willful] and wanton

misconduct,’ ” defined as (1) “a course of action that shows actual or deliberate intention to

harm” or (2) “if not intentional, shows an utter indifference to or conscious disregard for a

person’s own safety and the safety of others.” Id.

¶ 28 Larsen essentially urges this court to construe the statutory definition of willful and wanton

misconduct into two separate parts. Specifically, that the unintentional harm to a “person’s

own safety” is distinct from the intentional “harm,” which Larsen claims encompasses a loss or

diminution of professional reputation. We reject this construction. Instead, we construe section

10.2 of the Hospital Act in harmony with its clearly stated overarching purpose and conclude

that the unintentional harm–that is, the “utter indifference to or conscious disregard for a

person’s own safety and the safety of others” clarifies the type of intentional “harm” the

legislature contemplated. The parsing that Larsen advocates would render meaningless the

immunity intended by section 10.2 of the Hospital Act given the following unavoidable

consequences that flow from a credentialing committee’s denial of a physician’s application

requesting renewal of clinical privileges.

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¶ 29 A hospital credentialing committee is primarily tasked with determining whether

approving a physician’s hospital privileges for an additional term is in the best interest of the

hospital and its patients. To perform this core function, a credentialing committee will

inevitably deny some renewals for valid reasons. Such action cannot be viewed reasonably as

an unintentional act. The committee members, many of whom may well be physicians

themselves, are presumed to know and accept the consequences of such a denial for the

physician whose privileges are not renewed. As Larsen stated in his July 2013 first amended

complaint, the decision not to renew a physician’s clinical privileges requires mandatory

self-reporting to current and potential employers, providers, and insurers. Such reporting

would–at a minimum–negatively impact the physician’s professional reputation and future

income. In other words, a credentialing committee’s decision not to renew a physician’s

privileges necessarily involves reputational harm to that physician. Indeed, we cannot envision

an instance where such a denial would not result in at least a modicum of such harm in the short

term.

¶ 30 Notwithstanding the aforementioned negative consequences, a credentialing committee’s

decision not to renew a physician’s hospital privileges is precisely the determination that

section 10.2 of the Hospital Act protects. If we were to agree with Larsen that the phrase

“actual or deliberate intention to harm” does not require a showing of a specific type of harm,

the immunity afforded Provena and members of the Provena Central Illinois Region Board

would cease immediately upon the denial of clinical privileges, given that such a

determination, as we have described, would (1) be intentional and (2) undoubtedly result in

some reputational harm to the aggrieved physician. Larsen’s stance also conflicts with the

clearly stated legislative intent of section 10.2 of the Hospital Act to facilitate the “candid and

conscientious evaluation of clinical practices” to improve patient care by encouraging “peer

review by health care providers.” Id. Plainly put, if merely denying a physician hospital

privileges could result in civil liability for the medical facility or members of a credentialing

committee, candid reviews would likely cease.

¶ 31 Larsen asserts that under the trial court’s interpretation of Lo, an aggrieved physician

would be precluded from seeking civil damages under any set of facts unless the harm alleged

was physical harm. Larsen’s assertion is correct, but we reject his claim that the court

incorrectly interpreted Lo. As previously noted, in Lo–a case substantially similar to the instant

case–this court held that absent allegations of intentional physical harm or a showing that the

committee at issue consciously disregarded the aggrieved physician’s safety, the immunity

afforded by that section remains intact. Lo, 356 Ill. App. 3d at 545, 826 N.E.2d at 600.

¶ 32 Essentially, Larsen’s argument is premised on his belief that the legislature–in crafting the

willful-and-wanton-misconduct exception–could not have intended that physical harm only

would overcome the immunity otherwise provided, which would never occur as a result of a

credentialing committee’s decision to deny clinical privileges. This court, however, “will not

depart from the plain language of a statute by reading into it exceptions, limitations[,] or

conditions that conflict with the express legislative intent.” Carver v. Sheriff of La Salle

County, 203 Ill. 2d 497, 507, 787 N.E.2d 127, 133-34 (2003). We find support for our

conclusion in Lo in the legislature’s silence since Lo’s publication.

¶ 33 In Szczerbaniuk, 180 Ill. App. 3d at 710-11, 536 N.E.2d at 141, the Second District

concluded that a prior version of section 10.2 of the Hospital Act did not provide immunity for

individuals “acting only pursuant to an informal delegation of authority by an uninformed

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committee.” As we noted in Lo, 356 Ill. App. 3d at 544, 826 N.E.2d at 599, shortly after the

Second District decided Szczerbaniuk, the legislature amended section 10.2 of the Hospital Act

by adding the words “or individual,” which extended immunity to the acts or omissions of any

individual tasked with internal quality control. See Pub. Act 91-448, § 5 (eff. Aug. 6, 1999).

We also note that at the time the legislature amended section 10.2 of the Hospital Act to

include the phrase “or individual,” it further amended the statute by adding the definition of

willful and wanton misconduct that is at issue in this case. Id.

¶ 34 In the almost 10 years since this court’s decision in Lo, the legislature has not seen fit to

further amend section 10.2 of the Hospital Act. The legislature’s silence implies that–at a

minimum–it is not displeased with our conclusion in Lo that an allegation of reputational harm

does not “fit within the specialized definition of ‘[willful] and wanton misconduct’ in section

10.2 [of the Hospital Act].” Lo, 356 Ill. App. 3d at 545, 826 N.E.2d at 600. Given that the

medical profession is well-represented and influential within the legislative halls of the

General Assembly, we would expect that if our interpretation in Lo of section 10.2 of the

Hospital Act were erroneous, as Larsen contends, legislative action to correct that

misinterpretation would have been forthcoming, just as the legislature acted after

Szczerbaniuk. See Provena Health v. Illinois Health Facilities Planning Board, 382 Ill. App.

3d 34, 45, 886 N.E.2d 1054, 1065 (2008) (“The legislature is presumed to know how courts

have interpreted a statute and may amend the statute if it intended a different construction.”).

¶ 35 Accordingly, we adhere to our decision in Lo and answer the second certified question in

the negative. That answer requires our answer to the first certified question to be in the

affirmative.

¶ 36 D. The Certified Questions in Case No. 4-14-0261

¶ 37 1. This Court’s Scope of Review

¶ 38 Prior to considering the third and fourth certified questions presented in case No.

4-14-0261, we first explain our scope of review.

¶ 39 Citing Bright v. Dicke, 166 Ill. 2d 204, 208, 652 N.E.2d 275, 277 (1995), Provena contends

that “this [c]ourt is not strictly limited by the scope of the questions certified for review” and

“may consider the propriety of an underlying decision in the ‘interests of judicial economy and

the need to reach an equitable result.’ ” Relying on its interpretation of Bright, Provena then

disregards the actual question for review certified by the trial court and purports to then present

the following two issues for our review, as follows:

“I. Whether the trial court erred by denying [Provena’s section] 2-615 motion to

dismiss *** Larsen’s allegations of reputational harm because [the court] found that

the *** [Hospital Act’s] immunity provision did not apply to claims brought under the

*** Whistleblower Act.

II. Whether the trial court erred by denying [Provena’s section] 2-615 motion to

dismiss because it found that [Provena’s] acceptance of payments from Medicare

patients makes it a state-funded hospital, subject to the *** Whistleblower Act.”

Contrary to Provena’s claim, Bright does not permit Provena to disregard the questions

certified by the court and instead rewrite those questions as it sees fit. At most, Bright stands

for the proposition that after answering those questions, this court may go beyond the certified

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questions presented and consider the propriety of the trial court’s underlying order. Bright does

not authorize either ignoring or altering the certified questions.

¶ 40 Accordingly, we will consider the certified questions as presented. If–after considering

each certified question–the “interest of judicial economy and the need to reach an equitable

result” so warrant, we will consider the propriety of the trial court’s underlying order.

¶ 41 2. The Pertinent Portions of the Whistleblower Act

¶ 42 Section 15(b) of the Whistleblower Act outlines the following prohibited activity:

“(b) An employer may not retaliate against an employee for disclosing information

to a government or law enforcement agency, where the employee has reasonable cause

to believe that the information discloses a violation of a State or federal law, rule, or

regulation.” 740 ILCS 174/15(b) (West 2010).

¶ 43 Section 5 of the Whistleblower Act defines employee, as follows:

“ ‘Employee’ means any individual who is employed on a full-time, part-time, or

contractual basis by an employer. ‘Employee’ also includes, but is not limited to, a

licensed physician who practices his or her profession, in whole or in part, at a hospital,

nursing home, clinic, or any medical facility that is a health care facility funded, in

whole or in part, by the State.” 740 ILCS 174/5 (West 2010).

¶ 44 Section 30 of the Whistleblower Act, entitled, “Damages,” outlines the following remedies

available to an aggrieved employee:

“If an employer takes any action against an employee in violation of Section 15 ***,

the employee may bring a civil action against the employer for all relief necessary to

make the employee whole ***.” 740 ILCS 174/30 (West 2010).

Section 30 continues by outlining specific remedies available to an aggrieved employee, which

include, but are not limited to, (1) “reinstatement with the same seniority status”; (2) “back

pay, with interest”; and (3) “compensation for any damages sustained as a result of the

violation, including litigation costs, expert witness fees, and reasonable attorney’s fees.” Id.

¶ 45 3. The Third Certified Question

¶ 46 The trial court certified the following question for interlocutory review:

“[3.] Does plaintiff’s claim for violation of the *** Whistleblower [Act] constitute

a claim for civil damages subject to peer review immunity afforded by the ***

[Hospital Act]?”

¶ 47 As phrased, the third certified question requires this court to consider the interaction, if

any, between the Hospital Act and the Whistleblower Act. As already discussed, the intent of

section 10.2 of the Hospital Act is to provide immunity from civil liability to hospitals and

certain identified committee members for decisions made in furtherance of the legitimate state

interest in improving the quality of health care in Illinois. In contrast, the purpose of the

Whistleblower Act is to protect statutorily defined employees who report violations of state or

federal laws, rules, or regulations “because the reported wrongful conduct or unsafe condition

affected the heath, safety[,] or welfare of Illinois residents as a whole.” Sutherland v. Norfolk

Southern Ry. Co., 356 Ill. App. 3d 620, 627, 826 N.E.2d 1021, 1027 (2005).

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¶ 48 Provena argues that Larsen’s retaliation claim is barred by section 10.2 of the Hospital Act.

Specifically, Provena contends that because Larsen based his retaliation claim on Provena’s

peer-review determination, which denied Larsen’s application for clinical privileges, Larsen

was required to allege willful and wanton misconduct to maintain his cause of action under the

Whistleblower Act. Provena asserts that to conclude otherwise would essentially create an

additional exception to the immunity afforded by section 10.2 of the Hospital Act. We

disagree.

¶ 49 In January 2004–approximately 4 1/2 years after amending section 10.2 of the Hospital Act

to include a definition of willful and wanton misconduct–the legislature enacted the

Whistleblower Act. See Pub. Act 93-544 (eff. Jan. 1, 2004) (adding 740 ILCS 174/1 to 35).

Section 5 of the Whistleblower Act specifically notes that a physician who practices his or her

profession in a health care facility funded by the state is an “employee” who “may bring a civil

action against the employer for all relief necessary to make the employee whole.” (Emphasis

added.) 740 ILCS 174/5, 30 (West 2010). Thus, by its plain language, the legislature clearly

intended that the Whistleblower Act would apply to physicians who satisfied the statutory

definition of employee. We presume that when enacting new legislation, the legislature

“envisions a consistent body of law” and “is aware of all previous enactments.” Illinois Native

American Bar Ass’n v. University of Illinois, 368 Ill. App. 3d 321, 327-28, 856 N.E.2d 460,

467 (2006). Given their differing purposes and the legislature’s clear expression that the

Whistleblower Act would apply to physician employees as defined therein, we conclude the

Whistleblower Act and Hospital Act are separate and distinct laws.

¶ 50 The Whistleblower Act contains no immunity provision, as does the Hospital Act, and this

court, under the guise of statutory interpretation, cannot simply rewrite the Whistleblower Act

to include such a provision. Our doing so would be particularly improper where the very

immunity provision at issue was subject to legislative scrutiny just 4 1/2 years earlier, when the

legislature amended the immunity provision of the Hospital Act. This sequence of events

compels the conclusion that the absence of this immunity provision in the Whistleblower Act

is no legislative oversight.

¶ 51 We acknowledge that the relief available to an employee under section 30 of the

Whistleblower Act includes damages that would not be recoverable under the Hospital Act

absent willful and wanton misconduct. However, in any supposed conflict between the two

respective acts as a result of a retaliatory claim based on a denial of clinical privileges, the

older act must yield to the more recent legislation. See Village of Chatham v. County of

Sangamon, 216 Ill. 2d 402, 431, 837 N.E.2d 29, 46 (2005) (“[W]hen two statutes appear to be

in conflict, the one which was enacted later should prevail, as a later expression of legislative

intent.”).

¶ 52 Accordingly, we answer the third certified question in the negative.

¶ 53 4. The Fourth Certified Question

¶ 54 Having concluded that Larsen’s retaliation claim was not precluded by the Hospital Act,

we consider the next and last certified question, which concerns Larsen’s status as an employee

under the Whistleblower Act:

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“[4.] Is payment to a hospital under assignment from a Medicaid recipient, pursuant

to the Social Security Act, § 1902(a)(32), ‘funding’ by the State as defined by the ***

[Whistleblower Act]?”

¶ 55 As previously noted, section 5 of the Whistleblower Act defines employee, as follows:

“ ‘Employee’ means any individual who is employed on a full-time, part-time, or

contractual basis by an employer. ‘Employee’ also includes, but is not limited to, a

licensed physician who practices his or her profession, in whole or in part, at a hospital,

nursing home, clinic, or any medical facility that is a health care facility funded, in

whole or in part, by the State.” (Emphasis added.) 740 ILCS 174/5 (West 2010).

Thus, the fourth certified question requires this court to interpret the phrase, “a health care

facility funded, in whole or in part, by the State.”

¶ 56 Section 1396a(a)(32)(A) of the Social Security Act provides, as follows:

“(a) Contents.

A State plan for medical assistance must–

***

(32) provide that no payment under the plan for any care or service provided

to an individual shall be made to anyone other than such individual or the

person or institution providing such care or service, under an assignment or

power of attorney or otherwise; except that–

(A) in the case of any care or service provided by a physician, dentist, or

other individual practitioner, such payment may be made (i) to the

employer of such physician, dentist, or other practitioner if such physician,

dentist, or practitioner is required as a condition of his employment to turn

over his fee for such care or service to his employer, or (ii) (where the care

or service was provided in a hospital, clinic, or other facility) to the facility

in which the care or service was provided if there is a contractual

arrangement between such physician, dentist, or practitioner and such

facility under which such facility submits the bill for such care or service[.]”

42 U.S.C. § 1396a(a)(32)(A) (2006).

¶ 57 “In 1965, Congress enacted title XIX of the Social Security Act (42 U.S.C. §§ 1396 to

1396v (2006)), commonly known as the Medicaid Act.” Tjaden v. State of Illinois, 2013 IL

App (4th) 120768, ¶ 34, 11 N.E.3d 812. “The statute created a cooperative program in which

the federal government reimburses state governments for a portion of the costs to provide

medical assistance to two low-income groups known as ‘the categorically needy’ and ‘the

medically needy.’ ” Id. “State participation in the Medicaid program is voluntary, but if a state

elects to participate, it must comply with the requirements of the Medicaid Act and the

regulations promulgated thereunder.” Biekert v. Maram, 388 Ill. App. 3d 1114, 1119, 905

N.E.2d 357, 362-63 (2009). “At its heart, Medicaid is a taxpayer-funded program intended to

provide medical care to the truly poor and needy ***.” Tjaden, 2013 IL App (4th) 120768,

¶ 35, 11 N.E.3d 812.

¶ 58 Provena essentially argues that Medicaid benefits are not state funds as contemplated by

section 30 of the Whistleblower Act. In their respective briefs to this court, the parties argue

that resolution of the fourth certified question depends on the manner in which Provena

received Medicaid payments–that is, directly from the state or by assignment from the

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Medicaid beneficiary. We do not find this distinction dispositive. Instead, we compare the

terms “fund,” as used in section 5 of the Whistleblower Act, and “payment,” as used in the

Social Security Act. We find this distinction dispositive.

¶ 59 The definition of “fund” is “[t]o furnish money to (an individual, entity, or venture),

[especially] to finance a particular project.” Black’s Law Dictionary 697 (8th ed. 2004).

“Payment” is defined as the “money or other valuable thing so delivered in satisfaction of an

obligation.” Id. at 1165.

¶ 60 As noted, the purpose of the Medicaid program is to defray the cost of providing medical

care to the poor and needy by providing payment in satisfaction or partial satisfaction for the

medical services provided. Payments such as these cannot reasonably be considered funding as

contemplated by the Whistleblower Act. For example, if a person underwent a medical

procedure that was covered by her private medical insurance policy, no reasonable person

would conclude that the insurance company was privately “funding” the hospital by directly or

indirectly tendering payment for the medical service provided. Similarly, a person who pays

for his prescription at the hospital’s pharmacy is not “funding” that entity. In each example, the

payee is making a payment in satisfaction for a service performed. In other words, payment

contemplates an exchange. In this case, a Medicaid payment is for medical services rendered.

We see no meaningful distinction between the aforementioned examples and a payment made

by the state on behalf of a Medicaid beneficiary for medical services rendered.

¶ 61 In contrast, we view the phrase, “funding, in whole or in part, by the State” as used in

section 5 of the Whistleblower Act as a term of art, which contemplates public funding that is

allocated–for example–to financially support a particular program, experimental medical trial,

or project offered by a health care facility. See 105 ILCS 5/14A-30 (West 2010) (explaining

the funding available through the Illinois Board of Education for qualified programs focused

on the education of gifted and talented children). In the examples provided, the funds allocated

do not represent a direct exchange but, rather, finances provided to advance a project, program,

or other laudable endeavor that the state has determined is in the public’s best interest.

¶ 62 Accordingly, we answer the fourth certified question in the negative, noting that a

Medicaid payment–made either directly by the state or by assignment by a Medicaid

beneficiary–is not funding as contemplated by section 5 of the Whistleblower Act.

¶ 63 III. CONCLUSION

¶ 64 For the reasons stated, we answer the first certified question in the affirmative, the

remaining three questions in the negative, and we remand for further proceedings.

¶ 65 Certified questions answered; cause remanded.

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