# Lucas v. The County of Cook

> Appellate Court of Illinois · March 5, 2013 · 987 N.E.2d 56

URL: https://www.frixlaw.com/law-library/cases/3148469

## Case

- **Court:** Appellate Court of Illinois
- **Decided:** March 5, 2013
- **Citations:** 987 N.E.2d 56; 2013 IL App (1st) 113052
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3148469

## Opinion text

ILLINOIS OFFICIAL REPORTS
Appellate Court

Lucas v. County of Cook, 2013 IL App (1st) 113052

Appellate Court DOROTHY J. LUCAS, Plaintiff-Appellant, v. THE COUNTY OF
Caption COOK, Defendant-Appellee.

District & No. First District, Second Division
Docket No. 1-11-3052

Filed March 5, 2013

Held Summary judgment was properly entered for defendant county in
(Note: This syllabus plaintiff’s action alleging a violation of the Whistleblower Act and
constitutes no part of retaliatory discharge, since she did not establish that, with her training,
the opinion of the court the county’s request that she treat male patients with sexually transmitted
but has been prepared diseases as part of her employment with the county’s health department
by the Reporter of would violate any rule or regulation, and no violation of a clearly
Decisions for the mandated public policy was set forth in support of the retaliatory
convenience of the discharge count.
reader.)

Decision Under Appeal from the Circuit Court of Cook County, No. 09-L-11982; the
Review Hon. Raymond Mitchell, Judge, presiding.

Judgment Affirmed.
Counsel on Law Office of Denise M. Mercherson, of Chicago (Denise M.
Appeal Mercherson, of counsel), for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr.,
Gregory Vaci, and Andrew J. Creighton, Assistant State’s Attorneys, of
counsel), for appellee.

Panel PRESIDING JUSTICE HARRIS delivered the judgment of the court,
with opinion.
Justices Quinn and Simon concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, Dorothy J. Lucas, M.D., filed a two-count amended complaint against
defendant, County of Cook (Cook County). Cook County terminated Dr. Lucas from the
Cook County department of public health (CCDPH)1 after she refused to treat male patients
or to attend training to treat male patients that had sexually transmitted diseases (STD).
Count I of her complaint alleged that Cook County violated section 20 of the Illinois
Whistleblower Act (Act) (740 ILCS 174/20 (West 2010)), while count II of her complaint
contained a claim for common law retaliatory discharge.2 Under both counts of her
complaint, Dr. Lucas alleged that Cook County terminated her for reporting violations of title
68, section 1285.240, of the Illinois Administrative Code3 (Administrative Code) (68 Ill.
Adm. Code 1285.240 (2005)) to “the Illinois Office of Professional Regulations.” Cook
County filed a motion for summary judgment pursuant to section 2-1005(c) of the Illinois
Code of Civil Procedure (Code) (735 ILCS 5/2-1005(c) (West 2010)), which the circuit court
granted as to both counts of Dr. Lucas’s complaint. At issue is whether the circuit court

1
We will refer to defendant generally as “Cook County.” Where necessary, we will refer to
the more specific subsection of Cook County, the CCDPH.
2
Dr. Lucas titled count II of her amended complaint as “Common Law–Whistleblower.” In
pleadings before the circuit court and in her briefs before this court, she refers to the count as a
retaliatory discharge claim even though her complaint does not use the term “retaliatory discharge.”
Based on the pleadings and the briefs, and the substance of Dr. Lucas’s allegations, we will refer to
count II of her complaint as a common law claim for retaliatory discharge.
3
In her complaint, Dr. Lucas refers to title 68, section 1285.240, of the Administrative Code
as the “Medical Practices Act of 1987, Section 1285.240.” Based on our review of the record, and
the fact that the Medical Practices Act of 1987 does not have a section titled “1285.240,” we assume
Dr. Lucas meant title 68, section 1285.240, of the Administrative Code.

-2-
properly entered summary judgment in favor of Cook County. We hold that the circuit court
properly entered summary judgment in Cook County’s favor on count I of Dr. Lucas’s
amended complaint because Dr. Lucas failed to establish that the activity Cook County
wanted her to engage in, i.e., the treating of male patients or to attend training to treat male
patients, violated any rule, law or regulation. The circuit court properly entered summary
judgment in Cook County’s favor on count II of Dr. Lucas’s amended complaint because Dr.
Lucas failed to articulate a clearly mandated public policy to support her claim of retaliatory
discharge.

¶2 JURISDICTION
¶3 On July 27, 2011, the circuit court granted Cook County’s motion for summary
judgment. On October 3, 2011, the circuit court denied Dr. Lucas’s motion for
reconsideration. On October 17, 2011, Dr. Lucas timely filed her notice of appeal. On
October 31, 2011, Dr. Lucas filed an amended notice of appeal. Accordingly, this court has
jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from
final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30,
2008).

¶4 BACKGROUND
¶5 Dr. Lucas, a board-certified obstetrician and gynecologist, filed a two-count amended
complaint against Cook County alleging that it retaliated against her for her reporting “the
violation of state or federal law, rule or regulations by the [CCDPH].” Dr. Lucas began
working for Cook County as the assistant medical director of the CCDPH and medical
director of family planning and noncommunicable disease in September of 2001. In
December of 2001, she was appointed as the medical director of the CCDPH, a position she
held concurrently with her position as medical director of family planning and
noncommunicable disease. In 2006, she “was demoted to the position of Medical Director
in Family Planning and then to Clinic Physician.”
¶6 According to Dr. Lucas, on August 24, 2008, CCDPH told her “that unless she agreed[ ]
to provide [STD] services to male clients and to complete training for male clients by
October 31, 2008, she could face disciplinary action up to and including termination.” Dr.
Lucas alleged she performed her four-year residency in obstetrics and gynecology without
male patient contact. She notified CCDPH “that 10 days of training at the County’s Core
Center would not qualify an obstetrician and gynecologist to examine or treat male or female
patients for STD medical services.” Dr. Lucas alleged further that CCDPH wanted her to
work in the “Core Clinic,” which she explained was a “specialty clinic for patients who are
HIV positive, impacted with AIDS and other STD’s.” Dr. Lucas asserted that 10 days of
training would be inadequate preparation for her to treat patients of different ages and sexes,
and that this could result in substandard medical care and malpractice in the Core Clinic.
¶7 On September 4, 2008, Dr. Lucas notified CCDPH that she objected to treating male
patients with only 10 days of training and that CCDPH “was exposing her to potential
litigation for medical malpractice due to a demand that she practice outside her training and

-3-
the usual and customary practice of medicine for an OB/GYN.” On that same day, Dr. Lucas
notified the “Illinois Office of Professional Regulations” that CCDPH “was in violation of
the Medical Practices Act of 1987, section 1285.240 by requiring her to perform services as
a physician without adequate training” and for offering her inadequate training. Dr. Lucas
did not attend the 10-day training for treating males with STDs, which was held on October
30, 2008. CCDPH terminated Dr. Lucas on November 7, 2008.
¶8 Count I of Dr. Lucas’s complaint alleged Cook County violated section 20 of the Act.
740 ILCS 174/20 (West 2010). Specifically, Dr. Lucas alleged Cook County took adverse
action against her for reporting Cook County’s “failure to comply with the Medical Practice
Act of 1987, section 1285.240 and related rules or regulations.” In count II of her complaint,
Dr. Lucas made a claim of common law retaliatory discharge. Specifically, she alleged that
her “employment ended on November 7, 2008 in retaliation for her engagement in protected
activity by reporting violations of the Medical Practice Act of 1987, section 1285.240.” She
further alleged that her “discharge for reporting medical practice, safety, and health violations
to the office of Professional Regulations is against clear mandated public policy which
protects the health and safety of the citizens of Illinois.” Dr. Lucas sought a declaratory
judgment against Cook County for its violation of the Act. She also sought reinstatement to
her position as a clinician physician, and damages, including front and back pay, future
earnings, and an award of lost employee benefits. Additionally, she sought payment of her
fees, costs, and prejudgment interest.
¶9 Cook County filed a motion for summary judgment pursuant to section 2-1005(c) of the
Code. 735 ILCS 5/2-1005(c) (West 2010). Cook County argued that it was entitled to
judgment on count I of Dr. Lucas’s amended complaint because CCDPH never asked Dr.
Lucas to participate in any illegal activity. Specifically, the treatment of both male and
female patients for STDs did not violate any rule or regulation. Cook County also pointed
out that section 20 of the Act did not provide Dr. Lucas with a cause of action against it.
Additionally, Cook County asserted that the CCDPH’s repeated requests that Dr. Lucas
attend training to expand her practice to include treatment of male patients did not violate
any law or regulation. Regarding count II of Dr. Lucas’s amended complaint, Cook County
argued there was no evidence that Dr. Lucas’s termination was based on retaliation. Cook
County attached numerous documents as exhibits to its motion, which we will address in turn
below.
¶ 10 Exhibit A of Cook County’s motion contained both an affidavit from Dr. Linda Rae
Murray, the chief medical officer at the CCDPH, and a letter Dr. Murray wrote to Dr. Lucas.
In her affidavit, Dr. Murray explained that Dr. Lucas provided services to female patients at
the family planning clinic at CCDPH. Dr. Murray averred that the “scope of services” of the
family planning clinic changed in 2008 by merging with the STD clinic. This was done “so
that the physicians and other clinicians could provide care to both female and male patients”
and because it “allowed the more efficient use of limited staff resources.” One year before
the merger occurred, all clinic physicians were notified of the changes. Dr. Lucas repeatedly
stated she would not treat male patients as it was outside her area of training. Dr. Murray
attested further that “[t]raining in the treatment of male patients for STD was repeatedly
offered to Dr. Lucas, but she refused to even attend any such training.” Dr. Lucas was the

-4-
only physician to refuse to treat patients of both sexes. Dr. Murray stated that they “explored
the idea of allowing Dr. Lucas to continue to treat only female patients, but it required the
scheduling of two practitioners at a time, which did not allow for a full integration of the new
service model.” Dr. Murray attested that there is “[n]othing in the Medical Practices Act, the
relevant Illinois Administrative Code, or other public policy that prohibits a physician from
treating” patients of both sexes. Dr. Murray additionally stated that the physical examination
is the only different aspect of treating male patients. On November 7, 2008, Dr. Lucas was
terminated “[a]fter given a final opportunity and again refusing to be trained in the treatment
of male patients.” Dr. Murray attested that Dr. Lucas’s termination was not made in
retaliation and that “[t]he sole reason for Dr. Lucas’ termination was that she could not
provide medical services to both male and female patients as required by the Family Planning
and STD clinic merger.” The letter Dr. Murray wrote to Dr. Lucas, dated September 22,
2008, informed Dr. Lucas that she had to “complete the training *** on or before Friday,
October 31, 2008.” The letter informed Dr. Lucas, “[i]f you elect not to change your scope
of practice you will have the sincere thanks of the Department for your years of service. Your
last day of work will be Friday, November 7, 2008.”
¶ 11 Exhibit B contained an affidavit from Helen Hayes, who served as special counsel for
CCDPH in 2008, and a letter Hayes sent to Dr. Lucas. In her affidavit, Hayes attested that
the family planning and STD clinics merged to allow “more efficient use of limited staff
resources and was designed to be more convenient for clients, in that it allowed sexual
partners to be seen during the same clinic session and to receive both Family Planning and
STD services.” Hayes reiterated that Dr. Lucas informed her supervisors that she would
refuse to treat male patients and that she repeatedly refused to attend any of the training being
offered. Hayes met with Dr. Lucas on November 6, 2008, whereupon Dr. Lucas “indicated
that under no circumstances would she expand her scope of services to include male
patients.” The letter contained in Exhibit B was from Hayes to Dr. Lucas, and was dated
February 20, 2009. The letter explained to Dr. Lucas the circumstances that led to her
termination.
¶ 12 Exhibit C contained a discovery deposition of Dr. Lucas, and several letters and emails
referred to in the deposition. In her deposition, Dr. Lucas was shown a letter she sent to “Dr.
Martin” and “Mr. Barnes” dated April 6, 2007, in which she refers to a meeting with Dr.
Murray on the merger of the family planning and the STD clinics. Dr. Lucas stated that she
had not been trained to treat male patients. She also was shown a letter addressed to her from
Dr. Williams, the clinical supervisor for STD and family planning clinics, dated August 29,
2008. In the letter, Dr. Williams reiterated to Dr. Lucas that the STD and family planning
clinics would merge “by year-end” and that training was being offered for “clinicians who
have not done STD clinic work.” Dr. Williams explained that “[a]t the most recent federal
audit of the Title X contract affecting Family Planning Clinics we were informed that we
must offer family planning to males, as well as females.” The letter also referred to Dr.
Lucas’s refusal to see male patients and informed her that she needed to complete training
by October 31, 2008. Dr. Lucas attested that title X is a program that allocates funding for
family planning clinics operated by the Department of Health and Human Services. Dr.
Lucas was also shown a letter she sent to Dr. Williams, dated September 4, 2008. In that

-5-
letter, Dr. Lucas explained that she had only been trained to treat female patients. She did not
think that “[a] few weeks of mandatory STD training” was adequate preparation to treat male
patients. Dr. Lucas stated in her letter that she would contact and seek counsel from several
medical boards because she feared malpractice litigation. During her deposition, Dr. Lucas
testified that she communicated with the American Medical Association, the American
Board of Medical Specialists, American Board of Obstetricians and Gynecologists, the
American College of Obstetrics and Gynecology, the Office of Professional Regulation, and
the Chicago Medical Society. She did not have a copy of the letters she sent to the various
boards during her deposition, but stated she would be willing to produce them. She could
recall that a representative of “ISMIE” told her to get an attorney. Dr. Lucas admitted that
she did not ever attend any STD training.
¶ 13 During her deposition, Dr. Lucas was also shown a letter she sent to Warran Batts, the
chairman of the Cook County health and hospital board, dated October 6, 2008, in which she
explained her training and why she believed that 10 days or 2 weeks of STD training was not
sufficient to prepare her to treat male patients. After being shown the letter, Dr. Lucas
testified that 10 days of training was inappropriate. She also testified that she never treated
male patients during the course of her career, except under supervision for six weeks during
medical school. When asked whether anyone from the CCDPH ever informed her that her
termination was for retaliation for disclosing information in violation of the Medical Practice
Act of 1987 (225 ILCS 60/1 et seq. (West 2010)), she answered, “No.” She also answered,
“No” when asked whether anyone had told her not to disclose any information to a
government agency. Dr. Lucas did not have any conversations with anyone regarding what
would be adequate training for the treatment of male patients. She did state that the Office
of Professional Regulation, the American Medical Association, the American Board and the
American College of Medical Specialist mandate that physicians practicing medicine
incompetently should be reported. Dr. Lucas opined that six months to a year of training
would have been adequate for her to treat male patients.
¶ 14 In response to Cook County’s motion for summary judgment, Dr. Lucas argued that she
was discharged for complaining to management and reporting unlawful or unethical behavior
such that she stated a valid claim of retaliatory discharge. Therefore, Dr. Lucas asserted that
her claim raised a genuine issue of material fact precluding summary judgment. Dr. Lucas
also asserted that she raised sufficient issues of fact to support her claim under section 20 of
the Act. Dr. Lucas attached excerpts from the deposition testimony of Dr. James Arthur
Threatte to her response.4 Dr. Threatte testified he is a board-certified obstetrician and
gynecologist whose practice is limited to treating female patients.5 He has known Dr. Lucas

4
Dr. Lucas also attached to her response documents that Cook County had already attached
to its motion, including Dr. Lucas’s deposition testimony and correspondence either sent to or by
Dr. Lucas.
5
Dr. Lucas only attached excerpts from Dr. Threatte’s deposition. However, Cook County
attached the entire transcript from Dr. Threatte’s deposition to its reply in support of its motion for
summary judgment. The facts recited here are from the full transcript of Dr. Threatte’s deposition

-6-
for 34 years. They met in medical school while they were both students. Since medical
school, they have been friends, but have not had any professional relationship or worked
together. He sees Dr. Lucas “infrequently” and was not compensated for his testimony. He
agreed that neither the Medical Practices Act nor the Administrative Code prohibits doctors
from treating patients of the opposite sex. He has never treated males for STDs, nor has he
taught others how to treat STDs. He did, however, opine that 10 days of training for the
treatment of male patients with STDs was inadequate. When asked what he believed would
be adequate training for treating males with STDs, Dr. Threatte answered that he could only
speak for what training he would need to treat males. He then answered that he thought three
to six months of a combination of classroom and on-the-job training would be needed. He
did not speak to anyone at the CCDPH about what training was being offered to Dr. Lucas.
¶ 15 In reply in support of its motion for summary judgment, Cook County argued that it was
entitled to summary judgment because there was no violation of the Act. Specifically, Dr.
Lucas did not show any law, rule, or regulation that prohibited a physician from treating
patients of the opposite sex. In regard to Dr. Lucas’s retaliatory discharge count, Cook
County argued Dr. Lucas failed to demonstrate a violation of a public policy and that Dr.
Lucas’s decision to not treat male patients was her own personal choice which did not create
a cause of action for retaliatory discharge. Cook County disputed that there was a genuine
issue of fact concerning the adequacy of the training being offered to Dr. Lucas; arguing that
it was not the court’s role to review an employer’s business decisions. Cook County pointed
out that there is no rule against requesting an employee to attend training and asserted that
Dr. Lucas could not possibly know whether the training being offered to her was adequate
because she refused to attend. Cook County asserted that Dr. Threatte was not an expert as
he does not treat male patients and has never taught the treatment of STDs. Cook County
stressed that Dr. Lucas presented no evidence that CCDPH’s decision to consolidate clinics
violated any laws nor did she show that her termination was made in retaliation. Cook
County attached to its reply a copy of Dr. Lucas’s amended complaint and the full transcript
of Dr. Threatte’s deposition.
¶ 16 The circuit court granted Cook County’s motion for summary judgment on both counts
of Dr. Lucas’s complaint. In its written order, the circuit court noted that for count I of her
complaint, Dr. Lucas did not specify which parts of title 68, section 1285.240, of the
Administrative Code Cook County allegedly asked her to violate. The circuit court found,
however, that Dr. Lucas testified during her deposition “she was asked to violate sections 1,
1A, 1B, 1C, E, 2C, 2E, and F, which she alleges require a doctor to be competent to provide
medical care.” Accordingly, the circuit court found that the sections cited by Dr. Lucas do
not prohibit a physician from treating patients of both sexes. The circuit court further found
that Dr. Lucas repeatedly refused to attend the training as requested by Cook County. Dr.
Lucas’s termination did not violate the Act because “CCDPH’s request that Dr. Lucas
provide treatments she had previously provided to female patients to males and females after
attending training was not a violation of the Medical Practice Act and Administrative Code

as opposed to the excerpts attached to Dr. Lucas’s response.

-7-
§ 1285.240, and because CCDPH did not ask Dr. Lucas to do anything in violation of a law,
rule, or regulation.”
¶ 17 The circuit court found Cook County was entitled to summary judgment on count II of
Dr. Lucas’s complaint because Dr. Lucas failed to establish that the reporting of illegal
activity caused her termination. The circuit court noted that “[e]ven if being asked to perform
care without adequate training violates public policy, Dr. Lucas does not provide evidence
that she was terminated for reporting this violation to a governmental agency or supervisor.”
The circuit court found that the pleadings showed that CCDPH restructured the clinics for
efficiency reasons, and that Dr. Lucas knew of the restructuring in April of 2007. Dr. Lucas
alleged that she was informed on August 24, 2008, that she would be terminated if she did
not complete training. She did not report CCDPH until September 4, 2008, and October 6,
2008, respectively. The circuit court found that “CCDPH informed Dr. Lucas before she
reported them that she might be disciplined for failing to complete training.”
¶ 18 Dr. Lucas filed a motion to reconsider, which the circuit court denied. Dr. Lucas timely
filed her notice of appeal.

¶ 19 ANALYSIS
¶ 20 Before this court, Dr. Lucas argues that the sufficiency of the training she was offered is
a question of fact precluding summary judgment in this matter. Dr. Lucas argues further that
she was terminated in retaliation for reporting violations committed by the CCDPH. She
maintains that the competency of medical treatment provided by physicians is a matter of
public interest.
¶ 21 Cook County argues before this court that the circuit court correctly entered summary
judgment in its favor on count I of Dr. Lucas’s complaint because Dr. Lucas was never asked
to participate in any illegal activity. Specifically, Cook County asserts that Dr. Lucas has not
shown any rule, regulation, law, or public policy that would prohibit a physician from
treating patients of both sexes. Therefore, Cook County argues that Dr. Lucas cannot show
that section 20 of the Act was violated. Cook County argues that the circuit court properly
entered summary judgment on count II of Dr. Lucas’s complaint because Dr. Lucas failed
to establish a cause of action for retaliatory discharge. Namely, she failed to show a violation
of a public policy or establish any proof of retaliation. Cook County maintains that the
merging of the family planning clinic and the STD clinics was a medically sound business
decision that is a valid and nonpretextual reason for Dr. Lucas’s termination.
¶ 22 Initially, we note that before the circuit court, Dr. Lucas argued, under count I of her
amended complaint, that Cook County violated section 20 of the Act. 740 ILCS 174/20
(West 2010). However, before this court, she argues that Cook County also violated section
22(A)(5) of the Medical Practice Act of 1987 (225 ILCS 60/22(A)(5) (West 2010)). After
reviewing the record, we hold that Dr. Lucas has waived her contention that Cook County
violated section 22(A)(5) of the Medical Practices Act of 1987 for failing to raise it in the
circuit court. Haudrich v. Howmedica, Inc.,169 Ill. 2d 525, 536 (1996) (“It is well settled that
issues not raised in the trial court are deemed waived and may not be raised for the first time
on appeal.”). Accordingly, under count I of Dr. Lucas’s complaint, the only issue properly

-8-
before this court is whether Cook County violated section 20 of the Act by asking Dr. Lucas
to violate title 68, section 1285.240, of the Administrative Code.
¶ 23 Summary judgment is proper where “the pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c)
(West 2010). In ruling on a motion for summary judgment, the circuit court is to determine
whether a genuine issue of material fact exists, not try a question of fact. Williams v.
Manchester, 228 Ill. 2d 404, 417 (2008). A party opposing a motion for summary judgment
“must present a factual basis which would arguably entitle him to a judgment.” Allegro
Services, Ltd. v. Metropolitan Pier & Exposition Authority, 172 Ill. 2d 243, 256 (1996).
Pleadings are to be liberally construed in favor of the nonmoving party when determining
whether a genuine issue of material fact exists. Williams, 228 Ill. 2d at 417. Summary
judgment in favor of a defendant is proper where the plaintiff fails to establish an element
of a cause of action. Pyne v. Witmer, 129 Ill. 2d 351, 358 (1989). We review summary
judgment rulings de novo. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113
(1995).

¶ 24 Count I: Section 20 of the Act
¶ 25 Section 20 of the Act provides, in relevant part, that “[a]n employer may not retaliate
against an employee for refusing to participate in an activity that would result in a violation
of a State or federal law, rule, or regulation.” 740 ILCS 174/20 (West 2010). This court has
held that the language of section 20 is unambiguous and that a “plaintiff must actually refuse
to participate” in an activity that would violate a law or regulation. Sardiga v. Northern Trust
Co., 409 Ill. App. 3d 56, 62 (2011). Additionally, this court has further held that the term
“ ‘refusing’ ” under section 20 of the Illinois Whistleblower Act “means refusing; it does not
mean ‘complaining’ or ‘questioning.’ ” Id.
¶ 26 Dr. Lucas, in her complaint, asserted that she refused to participate in an activity that
would violate title 68, section 1285.240, of the Administrative Code. 68 Ill. Adm. Code
1285.240 (2005). Title 68, section 1285.240, provides:
“a) Dishonorable, Unethical or Unprofessional Conduct
1) In determining what constitutes dishonorable, unethical or unprofessional
conduct of a character likely to deceive, defraud or harm the public, the Disciplinary
Board shall consider whether the questioned activities:
A) Are violative of ethical standards of the profession (such as safeguard
patient confidence and records within the constraints of law; respect the rights of
patients, colleagues and other health professionals; observe laws under the Act
and pertaining to any relevant specialty; to provide service with compassion and
respect for human dignity);
B) Constitute a breach of the physician’s responsibility to a patient;
C) Resulted in assumption by the physician of responsibility for delivery of
patient care that the physician was not properly qualified or competent to render;

-9-
D) Resulted in a delegation of responsibility for delivery of patient care to
persons who were not properly supervised or who were not competent to assume
such responsibility;
E) Caused actual harm to any member of the public; or
F) Are reasonably likely to cause harm to any member of the public in the
future.
2) Questionable activities include, but are not limited to:
A) Being convicted of any crime an essential element of which is larceny,
embezzlement, obtaining money, property or credit by false pretenses or by
means of a confidence game, dishonesty, fraud, misstatement or moral turpitude;
B) Delegating patient care responsibility to any individual when the physician
has reason to believe that the person may not be competent;
C) Misrepresenting educational background, training, credentials,
competence, or medical staff memberships;
D) Failing to properly supervise subordinate health professional and
paraprofessional staff under the licensee’s supervision and control in patient care
responsibilities; or
E) Committing of any other act or omission that breaches the physicians
responsibility to a patient according to accepted medical standards of practice.
b) Immoral Conduct
1) Immoral conduct in the commission of any act related to the licensee’s practice
means conduct that:
A) Demonstrates moral indifference to the opinions of the good and
respectable members of the profession;
B) Is inimical to the public welfare;
C) Abuses the physician/patient relationship by taking unfair advantage of a
patient’s vulnerability; and
D) Is committed in the course of the practice of medicine.
2) In determining immoral conduct in the commission of any act related to the
licensee’s practice, the Disciplinary Board shall consider, but not be limited to, the
following standards:
A) Taking advantage of a patient’s vulnerability by committing an act that
violates established codes of professional behavior expected on the part of the
physician;
B) Unethical conduct with a patient that results in the patient engaging in
unwanted personal, financial or sexual relationships with the physician;
C) Conducting human experimentation or utilizing unproven drugs, medicine,
surgery or equipment to treat patients, except as authorized for use in an
approved research program pursuant to rules of the Illinois Department of Public
Health authorizing research programs (77 Ill. Adm. Code 205.130) or as

-10-
otherwise expressly authorized by law;
D) Committing an act, in the practice of persons licensed under the Act, of
a flagrant, glaringly obvious nature, that constitutes conduct of such a distasteful
nature that accepted codes of behavior or codes of ethics are breached;
E) Committing an act in a relationship with a patient so as to violate common
standards of decency or propriety; or
F) Any other behavior that violates established codes of physician behavior
or that violates established ethical principles commonly associated with the
practice of medicine.
c) In determining what constitutes gross negligence, the Disciplinary Board shall
consider gross negligence to be an act or omission that is evidence of recklessness or
carelessness toward or a disregard for the safety or well-being of the patient, and that
results in injury to the patient.” 68 Ill. Adm. Code 1285.240 (2005).
¶ 27 When reviewing a statute, we must “ascertain and give effect to the legislature’s intent.”
Andrews v. Kowa Printing Corp., 217 Ill. 2d 101, 106 (2005). “The most reliable indicator
of such intent is the language of the statute, which is to be given its plain and ordinary
meaning.” Solon v. Midwest Medical Records Ass’n, 236 Ill. 2d 433, 440 (2010). The
statutory language’s plain and ordinary meaning must be used where such language is clear.
Vancura v. Katris, 238 Ill. 2d 352, 378 (2010). Our review of a statute is de novo. Blum v.
Koster, 235 Ill. 2d 21, 29 (2009).
¶ 28 In this case, we hold that the circuit court properly entered summary judgment on count
I of Dr. Lucas’s amended complaint because Dr. Lucas failed to establish that the activity
Cook County wanted her to engage in, i.e., the treating of male patients or to attend training
to treat male patients, violated any law, rule or regulation. In her complaint, Dr. Lucas cites
title 68, section 1285.240, of the Administrative Code as the law Cook County wanted her
to violate. Title 68, section 1285.240, of the Administrative Code does not prohibit Cook
County’s request to Dr. Lucas to either treat male patients or to attend training to treat male
patients. Rather, title 68, section 1285.240, lists standards that the Medical Disciplinary
Board considers when disciplining physicians licensed under the Medical Practice Act of
1987. 68 Ill. Adm. Code 1285.240 (2005); 68 Ill. Adm. Code 1285.200 (2005) (“The Medical
Disciplinary Board *** shall be responsible for all discipline for physicians licensed under
the Medical Practice Act of 1987 ***.”). We hold Dr. Lucas’s reliance on title 68, section
1285.240, is misplaced because it does not prohibit Cook County’s request that Dr. Lucas
treat male patients or attend training to treat male patients. Dr. Lucas did not rely on any
other authority to show that Cook County asked her to perform an activity that would be
illegal.
¶ 29 In her briefs before this court, Dr. Lucas argues that a genuine issue of material fact exists
because of her assertion that the training Cook County offered was not adequate. The facts,
however, show that Dr. Lucas repeatedly refused to attend training and, therefore, could not
know whether the training was adequate or not. She did not attend the training as ordered and
then refuse to treat male patients based on her asserted belief that the offered training would

-11-
not qualify her to treat male patients.6 Dr. Lucas’s argument that the amount of training Cook
County offered her was a genuine issue of fact is irrelevant because she did not attend the
training offered.
¶ 30 Accordingly, to sustain a cause of action under section 20 of the Act, Dr. Lucas had to
establish that she refused to participate in an activity which would result in the violation of
either a state or federal law, rule or regulation; and that Cook County, her employer,
retaliated against her because of her refusal to participate. Sardiga, 409 Ill. App. 3d at 61
(citing 740 ILCS 174/20 (West 2004)); 740 ILCS 174/20 (West 2010). Summary judgment
is proper where a plaintiff fails to establish an element of a cause of action. Pyne, 129 Ill. 2d
at 358. Here, Dr. Lucas failed to establish that either treating male patients or attending
training to treat male patients violated a law, rule, or regulation. Accordingly, the circuit
court properly entered summary judgment in Cook County’s favor on the first count of Dr.
Lucas’s complaint.

¶ 31 Count II: Common Law Retaliatory Discharge
¶ 32 Illinois follows the general rule that an at-will employee may be discharged “ ‘for any
reason or no reason.’ ” Turner v. Memorial Medical Center, 233 Ill. 2d 494, 500 (2009)
(quoting Zimmerman v. Buchheit of Sparta, Inc., 164 Ill. 2d 29, 32 (1994)). Our supreme
court, however, recognizes an exception to the general rule in an action for retaliatory
discharge. Hartlein v. Illinois Power Co., 151 Ill. 2d 142, 159 (1992). “To state a valid
retaliatory discharge cause of action, an employee must allege that (1) the employer
discharged the employee, (2) in retaliation for the employee’s activities, and (3) that the
discharge violates a clear mandate of public policy.” Turner, 233 Ill. 2d at 500. Our supreme
court has described the exception as “a limited and narrow cause of action.” Id. If the
employer has a valid, non-pretextual basis for discharging the employee, the element of
causation is not met. Hartlein, 151 Ill. 2d at 160. An employee must identify a clear and
specific mandate of public policy as opposed to a broad, general, or vague statement that
does not provide specific guidance or is prone to multiple interpretations. Turner, 233 Ill. 2d
at 503. “Unless the employee identifies a clear mandate of public policy that is violated by
the employee’s discharge, the complaint will not state a cause of action for retaliatory
discharge.” Id. Generally, the issue of retaliation is a question for the trier of fact to resolve.
Id. at 501 n.1. The issue of whether a public policy exists, and the related issue of whether
the employee’s discharge undermines the stated public policy, is a question of law for the
court to decide. Id. at 501.
¶ 33 In Turner v. Memorial Medical Center, our supreme court addressed a similar scenario
to the case at bar. Id. at 496-99. In Turner, the plaintiff was a respiratory therapist at a
community hospital. Id. at 497. The Joint Commission on Accreditation of Healthcare
Organizations (Joint Commission) conducted a survey at the hospital to determine whether

6
We express no opinion on whether a physician who refuses to treat a patient due to
inadequate training would constitute a cause of action. We merely point out that in this case, Dr.
Lucas repeatedly refused to attend any training to become qualified to treat male STD patients.

-12-
the hospital would receive accreditation. Id. Federal Medicare and Medicaid funding was
dependent on the Joint Commission’s accreditation. Id. The plaintiff, in a meeting with the
Joint Commission and the vice president of patient care services at the hospital, informed the
Joint Commission that there was a discrepancy between how the hospital charted a patient’s
file and the standard for charting set by the Joint Commission. Id. The hospital allowed its
therapists to chart a patient’s file at any point during the therapist’s shift. Id. The Joint
Commission, however, required a therapist to chart a patient’s care immediately after care
was given to the patient. Id. at 498. The plaintiff told the Joint Commission that the
hospital’s “deviation from the Joint Commission standard was jeopardizing patient safety.”
Id. The hospital thereafter terminated the plaintiff. Id. The plaintiff alleged the following
public policies: a patient’s right to “ ‘sound nursing and medical practices’ ” under the
Medical Patient’s Rights Act; that the hospital’s charting policies were inconsistent “ ‘with
sound medical practices,’ ” which “ ‘jeopardized the safety of patients,’ ” and that his
termination “ ‘violated public policy that encourages employees to report actions that
jeopardize patient health and safety.’ ” Id. Our supreme court held the plaintiff’s complaint
failed “to set forth a specific public policy, much less a clearly mandated public policy.”
(Emphasis in original.) Id. at 504. Our supreme court stated that “[b]ased on the narrow
scope of a retaliatory discharge action, the general concept of ‘patient safety,’ by itself, is
simply inadequate to justify finding an exception to the general rule of at-will employment.”
Id. at 507.
¶ 34 In this case, we hold that Dr. Lucas failed to set forth a clearly mandated public policy
to support her claim of retaliatory discharge. Under count II of her amended complaint, like
in count I of her amended complaint, Dr. Lucas alleged that she was terminated for reporting
violations of title 68, section 1285.240, of the Administrative Code “and related rules or
regulations *** to the Office of Professional Regulation.” The public policy violated,
according to Dr. Lucas, was that her “discharge for reporting medical practice, safety, and
health violations to the Office of Professional Regulation is against clear mandated public
policy which protects the health and safety of the citizens of Illinois.” Similar to the plaintiff
in Turner, Dr. Lucas in this case fails to set forth a clearly mandated public policy to support
her claim. It is broad and general as opposed to clear and specific. See Id. at 502 (“A broad,
general statement of policy is inadequate ***.”). Like we stated in our discussion of count
I of Dr. Lucas’s amended complaint, title 68, section 1285.240, of the Administrative Code
lists considerations that the Medical Disciplinary Board considers when disciplining
physicians licensed under the Medical Practices Act of 1987. 68 Ill. Adm. Code 1285.240
(2005). We cannot say based on the length and amount of topics covered in title 68, section
1285.240, of the Administrative Code that Dr. Lucas properly articulated a clear mandate of
public policy. Additionally, we cannot even say that the actions Dr. Lucas was terminated
for, the refusal to treat male patients and the refusal to attend training to treat male patients,
are even covered by title 68, section 1285.240, of the Administrative Code. Accordingly, Dr.
Lucas failed to set forth a clear mandate of public policy to support her claim. The circuit
court did not err when it granted Cook County’s motion for summary judgment on count II
of Dr. Lucas’s amended complaint.

-13-
¶ 35 CONCLUSION
¶ 36 The judgment of the circuit court is affirmed.

¶ 37 Affirmed.

-14-

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3148469. Public record. Not legal advice.