# Berlin v. Sarah Bush Lincoln Health Center

> Illinois Supreme Court · October 23, 1997 · 179 Ill. 2d 1

URL: https://www.frixlaw.com/law-library/cases/9521294

## Case

- **Full name:** RICHARD B. BERLIN, JR., M.D., Appellee, v. SARAH BUSH LINCOLN HEALTH CENTER, Appellant
- **Court:** Illinois Supreme Court
- **Decided:** October 23, 1997
- **Citations:** 179 Ill. 2d 1; 227 Ill. Dec. 769; 688 N.E.2d 106; 13 I.E.R. Cas. (BNA) 727; 1997 Ill. LEXIS 463
- **Precedential status:** Published
- **Opinion:** Dissent by Harrison
- **Judges:** Nickels, Harrison, Miller
- **Cited by:** 96 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/9521294

## How later opinions describe it (automated extraction)

- stating that “where a decision ‘could have a direct impact on the rights and duties of the parties’ there is life in the appeal”

## Opinion text

JUSTICE HARRISON, dissenting:
In People ex rel. Kerner v. United Medical Service, Inc., 362 Ill. 442 (1936), this court held that a corporation cannot employ physicians and collect fees for their services because such conduct constitutes the practice of medicine and the practice of medicine by corporations is prohibited. The court based its conclusion on the Medical Practice Act, reasoning that under the statute, a license is required to practice medicine and
"[t]he legislative intent manifest from a view of the entire law is that only individuals may obtain a license thereunder. No corporation can meet the requirements of the statute essential to the issuance of a license.” Kerner, 362 Ill. at 454 .
More than 60 years have passed since Kerner was decided. If the legislature believed that our construction of the Act was erroneous or that the rule announced in Kerner should be changed, it could have amended the law to authorize the practice of medicine by entities other than individuals. With limited exceptions not applicable here, it has not done so. To the contrary, it has continued to adhere to the requirements that medicine can only be practiced by those who hold valid licenses from the state (225 ILCS 60/3 (West 1994)) and that only individuals can obtain such licenses (225 ILCS 60/9, 11 (West 1994); 68 Ill. Adm. Code § 1285.20 et seq. (1997)).
The legislature is presumed to know the construction the courts have placed upon a statute. When it amends a statute but does not alter a previous interpretation by this court, we assume that the legislature intended for the amendment to have the same interpretation previously given. Williams v. Crickman, 81 Ill. 2d 105, 111 (1980). Moreover, where the legislature has acquiesced in a judicial construction of the law over a substantial period of time, as it did here, the court’s construction becomes part of the fabric of the law, and a departure from that construction by the court would be tantamount to an amendment of the statute itself. Charles v. Seigfried, 165 Ill. 2d 482, 492 (1995). The power to make such amendments does not lie in the courts. Independent Voters v. Illinois Commerce Comm’n, 117 Ill. 2d 90, 100 (1987).
That the legislature has acquiesced in the judiciary’s construction of the Medical Practice Act is especially clear given recent developments in the law. Under section 4.9 of the Regulatory Agency Sunset Act (5 ILCS 80/4.9 (West 1994)), the Medical Practice Act was scheduled for repeal on December 31, 1997, unless the General Assembly enacted legislation providing for its continuation (5 ILCS 80/4 (West 1994)). On April 12, 1996, the appellate court filed its opinion in this case, holding under Kerner that the Medical Practice Act bars the corporate practice of medicine by hospitals. Subsequent to that decision, the General Assembly passed and the Governor signed new legislation extending the Medical Practice Act until January 1 of the year 2007. The new legislation made no substantive changes to the licensing requirements and included no provisions contrary to the appellate court’s holding. See 225 ILCS 60/1 et seq. (West 1996). Because the legislature is presumed to know the construction the statute has been given by the courts, its reenactment of the law can only be understood as an endorsement of the construction followed by the appellate court here. The corporate practice of medicine by hospitals is prohibited.
As previously indicated, the Medical Practice Act does contain certain exemptions. By its terms, it does not apply to:
"persons lawfully carrying on their particular profession or business under any valid existing regulatory Act of this State, nor to persons rendering gratuitous services in cases of emergency, nor to persons treating human ailments by prayer or spiritual means as an exercise or enjoyment of religious freedom.” 225 ILCS 60/4 (West 1994).
In addition, the Act provides that
"a physician who holds an active license in another state or a second year resident enrolled in a residency program accredited by the Liaison Committee on Graduate Medical Education or the American Osteopathic Association Committee on Post-Graduate Education may provide medical services to patients in Illinois during a bonafide emergency in immediate preparation for or during interstate transit.” 225 ILCS 60/3 (West 1994). Hospitals do not fall within any of these exceptions.
The majority argues that additional exceptions can be implied based on other statutes enacted by the General Assembly. It is a fundamental rule of statutory construction, however, that the enumeration of certain things in a statute implies the exclusion of all other things. In re Estate of Leichtenberg, 7 Ill. 2d 545, 552 (1956). Expressio unius est exclusio alterius. Where, as here, a statute specifies exceptions to a general rule, no exceptions other than those designated will be recognized. In re Estate of Tilliski, 390 Ill. 273, 283 (1945); Allen v. Conken, 39 Ill. 2d 427, 429-30 (1968).
Wholly aside from this problem, none of the other statutes invoked by my colleagues supports their position. The most that can be said of those statutes is that they authorize hospitals to operate facilities for the diagnosis and care of patients (see 210 ILCS 85/3 (West 1994)) and to make emergency service available (210 ILCS 80/1 (West 1994)) regardless of ability to pay (210 ILCS 70/1 (West 1994)). Hospitals may also employ physician’s assistants, provided such assistants function under the supervision of a licensed physician. 225 ILCS 95/7 (West 1994). None of those endeavors, however, requires that hospitals have the power to employ physicians directly or to charge patients for the physicians’ services. All may be accomplished by granting staff privileges to duly licensed private physicians, and the Hospital Licensing Act presumes that hospitals will staff their facilities in precisely that way. See 210 ILCS 85/ 10.4 (West 1994).
As noted earlier, the Medical Practice Act provides that it is inapplicable to "persons lawfully carrying on their particular profession or business under any valid existing regulatory Act of this State.” 225 ILCS 60/4 (West 1994). Through this exemption, the statute recognizes that activities and enterprises otherwise in violation of the Medical Practice Act may be sanctioned by the General Assembly through separate enactments. In accordance with the exemption, the General Assembly has expressly authorized the employment of physicians by Health Maintenance Organizations (HMOs) under the Health Maintenance Organization Act (215 ILCS 125/1 — 1 et seq. (West 1994)). If the General Assembly had intended to grant the same authority to hospitals, I believe that it would have been similarly straightforward and unambiguous in doing so.
In addition to creating special rules for HMOs, the General Assembly has also decided to allow physicians to employ various forms of business organizations in practicing their profession. Physicians may incorporate in accordance with the Professional Service Corporation Act (805 ILCS 10/1 et seq. (West 1994)), they may form corporations to provide medical services under the Medical Corporation Act (805 ILCS 15/1 et seq. (West 1994)), they have the right to practice in a professional association organized pursuant to the Professional Association Act (805 ILCS 305/1 et seq. (West 1994)), and they can organize and operate limited liability companies to practice medicine under the recently amended Limited Liability Company Act (805 ILCS 180/1 — 1 ét seq. (West 1996)). Again, however, none of these provisions pertains to hospitals, and no inference can be drawn from any of them that the General Assembly intended to alter the prohibition against the corporate practice of medicine by hospitals.
For the foregoing reasons, I agree with the appellate court that the corporate practice doctrine prohibited defendant, Sarah Bush Lincoln Health Center, from entering into an employment agreement with Dr. Berlin. That agreement, including its restrictive covenant, was void and unenforceable. Dr. Berlin’s motion for summary judgment was therefore properly granted, and the judgment of the appellate court should be affirmed.
JUSTICE MILLER joins in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9521294. Public record. Not legal advice.