Illinois Official Reports
Appellate Court
Davis v. Kewanee Hospital, 2014 IL App (2d) 130304
Appellate Court ALBERT R. DAVIS, Plaintiff-Appellant, v. KEWANEE
Caption HOSPITAL, Defendant-Appellee.
District & No. Second District
Docket No. 2-13-0304
Filed February 25, 2014
Held The trial court properly dismissed plaintiff anesthesiologist’s action
(Note: This syllabus seeking declaratory and injunctive relief based on defendant hospital’s
constitutes no part of the alleged violations of the Medical Studies Act and the Health Care
opinion of the court but Professional Credentials Data Collection Act, including the disclosure
has been prepared by the of information obtained during the credentialing process the hospital
Reporter of Decisions used in processing its offer of employment to plaintiff before that offer
for the convenience of was withdrawn, since neither Act provided plaintiff with a private
the reader.) right of action for an alleged violation of the confidentiality
exceptions in the Acts; however, plaintiff had the right to pursue
common-law remedies.
Decision Under Appeal from the Circuit Court of Du Page County, No. 12-MR-1552;
Review the Hon. Bonnie M. Wheaton, Judge, presiding.
Judgment Affirmed.
Counsel on Thomas A. Zimmerman, Jr., Adam T. Tamburelli, and Frank J. Stretz,
Appeal all of Zimmerman Law Offices, P.C., of Chicago, for appellant.
John A. Simon and Arthur M. Scheller III, both of Drinker, Biddle &
Reath LLP, of Chicago, for appellee.
Panel JUSTICE SPENCE delivered the judgment of the court, with opinion.
Justices Hudson and Birkett concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Dr. Albert R. Davis, filed suit against defendant, Kewanee Hospital (the
Hospital), seeking declaratory and injunctive relief based on alleged violations of section
8-2101 of the Code of Civil Procedure, commonly known as the Medical Studies Act (735
ILCS 5/8-2101 (West 2008)), and the Health Care Professional Credentials Data Collection
Act (Credentials Act) (410 ILCS 517/15(h) (West 2008)). After the Hospital withdrew its offer
of employment to Dr. Davis, Dr. Davis requested from the Hospital information related to its
credentialing process. In particular, Dr. Davis sought information obtained by the Hospital
during its process of assessing and validating his qualifications. The Hospital refused to
provide the information, and Dr. Davis filed his complaint, seeking disclosure of the
information. Dr. Davis alleged that exceptions to the confidentiality provisions in the Medical
Studies Act and the Credentials Act required the Hospital to disclose the information. The
Hospital moved to dismiss the complaint on the basis that neither of the confidentiality
exceptions applied. The trial court agreed and granted the Hospital’s motion to dismiss. Dr.
Davis appeals, and we affirm.
¶2 I. BACKGROUND
¶3 Dr. Davis was a licensed physician, surgeon, and anesthesiologist. In August 2008, he
pursued a full-time position as an anesthesiologist at the Hospital. The Hospital’s chief
executive officer (Margaret Gustafson), its chief nursing officer (Jennifer Junis), and its
medical staff assistant (Mary Schlindwein) expressed interest in employing Dr. Davis. On
November 10, 2008, Gustafson extended to Dr. Davis an offer of employment that was
contingent on credentialing by the Hospital.
¶4 In December 2008, the Hospital initiated its credentialing process and review of Dr.
Davis’s qualifications. On December 10, 2008, Schlindwein wrote Dr. Davis a letter thanking
him for his completed “Request for Application Questionnaire” and enclosing further
-2-
documents for him to complete. The letter stated that, upon the Hospital’s receipt of the
completed documents, Dr. Davis’s “credentials [would] be reviewed further.” On December
16, 2008, Dr. Davis completed the Hospital’s “Release of Liability and Practitioner’s
Statements,” which authorized the Hospital to consult with anyone who had been associated
with Dr. Davis, so the Hospital could obtain information bearing on his competence and
qualifications. On December 18, 2008, the Hospital sent Dr. Davis an employment agreement.
¶5 Throughout January 2009, Dr. Davis, Gustafson, and Schlindwein engaged in e-mail and
telephone conversations relating to his “ongoing credentialing process.” The Hospital
contacted Dr. Davis’s professional references and received information from them. Then, on
January 29, 2009, the Hospital withdrew its offer of employment.
¶6 Nearly three years later, on February 11, 2012, Dr. Davis wrote to the Hospital a letter
requesting copies of all data from all sources used by the Hospital in reaching its decision to
withdraw its employment offer. On March 16, 2012, the Hospital sent to Dr. Davis a letter
advising him that neither the Hospital’s “Medical Staff nor its Board of Trustees reached a
conclusion” on his application for employment. The letter stated that Dr. Davis’s application
file had been “closed prior to the commencement of the credentialing review process.”
¶7 Based on the Hospital’s refusal to disclose the information, Dr. Davis filed a complaint
against the Hospital on October 17, 2012. In his complaint, Dr. Davis alleged that the
Hospital’s decision to withdraw its employment offer was based on defamatory remarks made
by one or more individuals employed by a hospital where Dr. Davis was previously employed.
Dr. Davis alleged that the Hospital’s refusal to disclose the information violated both the
Credentials Act and the Medical Studies Act.
¶8 Counts I and II of Dr. Davis’s complaint were premised on the Credentials Act. Count I
sought a declaratory judgment that section 15(h) of the Credentials Act (410 ILCS 517/15(h)
(West 2008)) required the Hospital to disclose all information obtained by the Hospital in its
process of assessing and validating his qualifications. Dr. Davis alleged that he was prejudiced
by the Hospital’s refusal to disclose the information, because he believed that one of his prior
employers was falsely disparaging him during the credentialing process at hospitals at which
he subsequently applied for employment. Count II sought preliminary and permanent
injunctions requiring the Hospital to disclose all information obtained during its process of
assessing and validating Dr. Davis’s qualifications. Dr. Davis alleged in count II that he lacked
any other means to assert his disclosure rights under the Credentials Act.
¶9 Counts III and IV of Dr. Davis’s complaint mirrored the above two counts but were
premised on the Medical Studies Act. Count III sought a declaratory judgment that section
8-2101 of the Medical Studies Act (735 ILCS 5/8-2101 (West 2008)) required the Hospital to
disclose the information, and count IV sought preliminary and permanent injunctions to that
effect. In addition, Dr. Davis alleged that the Hospital had “actually reached a decision
regarding” his application for employment.
¶ 10 On December 10, 2012, the Hospital moved to dismiss Dr. Davis’s complaint under
section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West
2012)). In its motion to dismiss, the Hospital explained its credentialing process as follows.
Schlindwein would gather all of the applying physician’s credentialing information and then
-3-
give the credentialing file to the Hospital’s medical executive committee (MEC). The MEC
would then review the information and make a recommendation to the Hospital’s board of
trustees on whether to accept or reject the physician’s application. With respect to Dr. Davis,
the Hospital had contacted his professional references in order to assess his competence and
qualifications for membership on its medical staff. However, the MEC had not met on,
reviewed, or considered Dr. Davis’s credentialing information before the Hospital withdrew its
employment offer.
¶ 11 Attached to the Hospital’s motion to dismiss was Schlindwein’s affidavit, dated December
6, 2012, which stated as follows. Schlindwein’s duties included processing physicians’
applications for medical staff membership and clinical privileges. Schlindwein was
responsible for collecting credentialing information and then turning the credentialing file over
to the MEC. On November 10, 2008, the Hospital extended to Dr. Davis an offer of
employment that was subject to credentialing by the Hospital. During the process of collecting
Dr. Davis’s credentialing information, Schlindwein was informed that the Hospital had
withdrawn its contingent offer of employment to Dr. Davis. At the time the Hospital withdrew
the offer, the MEC had not met on, reviewed, or considered Dr. Davis’s credentialing
information or his application for employment. Therefore, the MEC had never made a decision
regarding his application. In denying Dr. Davis’s request for copies of all data used by the
Hospital to reach a conclusion on his application, Schlindwein sent a letter advising Dr. Davis
that the Hospital had never reached a decision on his application, because his file was closed
prior to the commencement of the credentialing review process.
¶ 12 In its motion to dismiss the Hospital argued that its “credentialing file” was privileged
under both the Medical Studies Act and the Credentials Act. In particular, under section
8-2101 of the Medical Studies Act, all information used by hospital committees “to decide
upon a physician’s staff privileges” was “strictly confidential.” 735 ILCS 5/8-2101 (West
2008). The only exception to the rule of confidentiality, according to the Hospital, was that the
“claim of confidentiality shall not be invoked to deny such physician access to or use of data
upon which such a decision was based.” (Emphasis added.) Id. The Hospital argued that,
because the MEC had not met on, reviewed, or considered Dr. Davis’s credentialing
information, or made a decision regarding his application for employment, the above
exception did not apply to Dr. Davis.
¶ 13 In a similar vein, the Hospital argued that the Credentials Act also provided that all
credentials data collected by a hospital was confidential. See 410 ILCS 517/15(h) (West 2008)
(“Any credentials data collected or obtained by the *** hospital shall be confidential ***
except that in any proceeding to challenge credentialing or recredentialing, or in any judicial
review, the claim of confidentiality shall not be invoked to deny a health care professional ***
access to or use of credentials data.”). Again, the Hospital argued that the exception did not
apply because the Hospital made no credentialing decision to challenge.
¶ 14 Dr. Davis filed a response to the Hospital’s motion to dismiss, including a request for
discovery pursuant to Illinois Supreme Court Rule 191(b) (eff. July 1, 2002). The discovery
request sought leave to depose Schlindwein and obtain all documents pertaining to the
Hospital’s credentialing procedures and policies. To support his discovery request, Dr. Davis
-4-
attached his own affidavit, which stated that he believed that Schlindwein would testify
regarding who informed her of the Hospital’s decision to withdraw its employment offer and
when she was informed. Dr. Davis also believed that Schlindwein would testify that the
decision was based on defamatory remarks made by one or more individuals employed by a
hospital where Dr. Davis was previously employed.
¶ 15 The Hospital filed a reply to Dr. Davis’s request for discovery, including a supplemental
affidavit by Schlindwein. In her supplemental affidavit, Schlindwein averred that she was
processing Dr. Davis’s credentialing information when she was instructed by Junis in February
2009 to stop work on his file, due to the Hospital’s withdrawal of its employment offer.
Schlindwein averred that she never gave Dr. Davis’s credentialing file to the MEC or the board
of trustees, because the file was not completed before his employment offer was withdrawn.
Schlindwein further averred that she had sole custody of Dr. Davis’s credentialing file at all
times and had never disclosed any of its information to anyone.
¶ 16 A hearing was held on the Hospital’s motion to dismiss. The Hospital argued that there was
a difference between an employment decision and a credentialing decision. According to the
Hospital, its decision not to employ Dr. Davis had nothing to do with the credentialing
information it received. Based on Schlindwein’s affidavit, no one but her had access to the
credentialing file, meaning that there was no way it could have been used to make an
employment decision. Dr. Davis responded that it was unclear whether the Hospital’s
employment decision was based on the credentialing information, which was why he wanted
to depose Schlindwein.
¶ 17 The court granted the Hospital’s motion to dismiss, reasoning as follows. The court agreed
that there was a distinction between an employment decision and a credentialing decision.
Because Schlindwein’s affidavit made clear that no credentialing decision was ever made and
that the credentialing process was still “going forth at the time that she was instructed to stop
gathering information,” the credentialing exceptions in the Medical Studies Act and the
Credentials Act did not apply. In other words, Dr. Davis was not challenging a credentialing
decision, because no such decision had been made by the Hospital. The court believed that the
Medical Studies Act and the Credentials Act had to be read in pari materia and that public
policy dictated that “if a credentialing process had not gone through to a decision, *** those
materials submitted in that process [were] confidential under the terms of both of the acts as
read together.”
¶ 18 Dr. Davis timely appealed.
¶ 19 II. ANALYSIS
¶ 20 Dr. Davis appeals the dismissal of his complaint under section 2-619(a)(9) of the Code
(735 ILCS 5/2-619(a)(9) (West 2012)). A section 2-619(a)(9) motion admits the legal
sufficiency of the complaint but asserts some affirmative matter that avoids the legal effect of
or defeats the claim. Dewan v. Ford Motor Co., 363 Ill. App. 3d 365, 368 (2005). An
affirmative matter is a type of defense that negates the cause of action completely or refutes
crucial conclusions of law or conclusions of material fact contained in or inferred from the
complaint. Id. We review a dismissal under section 2-619(a)(9) de novo. Smith v. Waukegan
-5-
Park District, 231 Ill. 2d 111, 115 (2008).
¶ 21 A. Medical Studies Act
¶ 22 Dr. Davis argues that the confidentiality exception in the Medical Studies Act applies in
this case and therefore compels the Hospital to disclose its credentialing information. Section
8-2101 of the Medical Studies Act provides, in pertinent part:
“All information, interviews, reports, statements, memoranda, recommendations,
letters of reference or other third party confidential assessments of a health care
practitioner’s professional competence, or other data of *** committees of licensed or
accredited hospitals or their medical staffs, including *** Credential Committees ***
used in the course of internal quality control or of medical study for the purpose of
reducing morbidity or mortality, or for improving patient care or increasing organ and
tissue donation, shall be privileged, strictly confidential and shall be used only for
medical research, increasing organ and tissue donation, *** or granting, limiting or
revoking staff privileges or agreements for services, except that in any health
maintenance organization proceeding to decide upon a physician’s services or any
hospital or ambulatory surgical treatment center proceeding to decide upon a
physician’s staff privileges, or in any judicial review of either, the claim of
confidentiality shall not be invoked to deny such physician access to or use of data
upon which such a decision was based.” (Emphases added.) 735 ILCS 5/8-2101 (West
2008).
¶ 23 Dr. Davis does not dispute that under section 8-2101 the confidentiality exception is not
triggered unless, following a credentialing process, a “decision” upon staff privileges is made.
However, he points out that the Hospital, in claiming that its decision to withdraw its
employment offer was not based on the information it received during the credentialing
process, relied exclusively on Schlindwein’s “self-serving” affidavits. The veracity of these
affidavits, according to Dr. Davis, was never tested, because the trial court denied his Rule
191(b) request to depose Schlindwein. Thus, Dr. Davis argues, the court erred by denying his
request to depose her. Dr. Davis also argues that the Hospital should not be allowed to insulate
itself from the confidentiality exception by proffering an affidavit stating that its decision was
based on something other than credentialing information without having to identify what that
basis was.
¶ 24 The Hospital initially responds that the Medical Studies Act does not give Dr. Davis a
private right of action for an alleged violation of its confidentiality exception. Because the
Hospital raises this argument for the first time on appeal, Dr. Davis urges this court to deem it
forfeited. However, the argument is not forfeited, because an appellee, as opposed to an
appellant, may raise a defense for the first time on appeal so long as the facts upon which the
defense is predicated are in the trial record. See Cambridge Engineering, Inc. v. Mercury
Partners 90 BI, Inc., 378 Ill. App. 3d 437, 454 (2007) (although an appellant may not raise an
issue for the first time on appeal, it is well settled that an appellee may raise a defense for the
first time on appeal, as long as the factual basis appears in the record). The facts upon which
-6-
this defense is predicated are in the record. Accordingly, the Hospital’s defense that Dr. Davis
has no private right of action under the Medical Studies Act is not forfeited.
¶ 25 The Hospital’s argument is premised on a recent case, Tunca v. Painter, 2012 IL App (1st)
110930, ¶ 19, in which the court held that the Medical Studies Act did not apply and also did
not give a “peer reviewed physician” a private right of action for an alleged violation of its
confidentiality provision.
¶ 26 In Tunca, the plaintiff surgeon filed a complaint against the defendant doctor, both
employed at the same hospital, for allegedly violating the Medical Studies Act. Id. ¶ 4. The
complaint was based on the defendant’s statements to other doctors that the plaintiff had
negligently performed a surgery. Id. The defendant’s statements, according to the plaintiff,
became widely disseminated and injured his professional reputation. Id. The plaintiff alleged
that the defendant’s statements constituted disclosure of privileged information, in violation of
the Medical Studies Act. Id. The court rejected the plaintiff’s argument because the Medical
Studies Act did not protect against disclosure of information generated outside of a peer review
process and, as the plaintiff conceded, the statements by the defendant were not made during a
peer review process. Id. ¶¶ 13, 15. In other words, the hospital committee had to be engaged in
the peer review process for the statutory privilege to apply, and because it was not, the
confidentiality provision in the Medical Studies Act did not apply to the defendant’s
statements. Id. ¶¶ 15-16.
¶ 27 The Tunca court continued that, even assuming, arguendo, that the Medical Studies Act
did apply in that case, the Medical Studies Act provided no private right of action for the
plaintiff. Regarding an express right, the court noted that the Medical Studies Act contained
“no language granting anyone a private right of action for a violation of its confidentiality
provisions.” Id. ¶ 19. Thus, there was no express right of action for an alleged violation of the
Medical Studies Act.
¶ 28 The court then considered whether such a right could be implied under the Medical Studies
Act, and it applied the relevant four-part test. Id. Under that test, 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 adequate remedy for violations of the statute.
Id. In applying this test, the court found that no implied private right of action existed. The
court reasoned as follows.
¶ 29 First, the purpose of the Medical Studies Act was “ ‘to ensure that members of the medical
profession [would] effectively engage in self-evaluation of their peers in the interest of
advancing the quality of health care.’ ” Id. ¶ 21 (quoting Roach v. Springfield Clinic, 157 Ill.
2d 29, 40 (1993)). In addition, the Medical Studies Act served “ ‘to encourage candid and
voluntary studies and programs used to improve hospital conditions and patient care or to
reduce the rates of death and disease.’ ” Id. (quoting Niven v. Siqueira, 109 Ill. 2d 357, 366
(1985)). As a result, the class of persons that the Medical Studies Act was enacted to benefit
was the general public, as opposed to physicians whose performance was under review. Id.
Second, the injury it was designed to prevent was the increased rates of death and illness that
-7-
could occur in the absence of candid self-evaluation; the Medical Studies Act was not designed
to prevent the loss of referrals that could result from the dissemination of information
generated during a physician’s peer review process. Id.
¶ 30 Third, the court recognized that, without the confidentiality provision of the Medical
Studies Act, doctors could be reluctant to engage in strict peer review for fear of malpractice
suits or the loss of referrals. Id. ¶ 22. Still, the main purpose of the Medical Studies Act was to
provide better health care through candid self-evaluation, and any benefit that physicians
derived from the confidentiality provision was incidental. Id. Finally, the court noted that the
Medical Studies Act contained a provision making it unlawful to disclose privileged
information (see 735 ILCS 5/8-2105 (West 2008)) and that the common law provided the
plaintiff with a remedy in the form of a slander action. Tunca, 2012 IL App (1st) 110930, ¶ 22.
¶ 31 Dr. Davis responds that Tunca is distinguishable, that the above reasoning is dicta, and that
application of the four-part test in this case gives him an implied private right of action.
According to Dr. Davis, he is not seeking to keep information confidential, as was the situation
in Tunca; rather, he seeks to enforce the confidentiality exception under the Medical Studies
Act. Dr. Davis asserts that, whereas Tunca considered only the confidentiality provision when
determining that the Medical Studies Act was enacted to benefit the general public, the
exception shows that he is among the class of persons the Medical Studies Act was intended to
benefit. According to Dr. Davis, the Medical Studies Act seeks to protect physicians from
wrongful actions by hospitals during the credentialing process by providing that, when a
physician challenges a hospital on this basis, the physician can obtain the credentialing
information to ensure that the process was fair. Finally, Dr. Davis argues that the Medical
Studies Act contains no remedy for a violation of its confidentiality exception. We disagree.
¶ 32 First, in arguing that he is a member of the class that the Medical Studies Act was intended
to benefit, Dr. Davis focuses exclusively on the confidentiality exception and ignores the
overall purpose of the statute. As illustrated in Fisher v. Lexington Health Care, Inc., 188 Ill.
2d 455 (1999), such an approach is incorrect.
¶ 33 In Fisher, the plaintiffs, former employees of the defendant nursing home, sued for alleged
retaliatory conduct, under section 3-608 of the Nursing Home Care Act (210 ILCS 45/3-608
(West 1996)). Fisher, 188 Ill. 2d at 456. The plaintiffs asserted that they had an implied private
right of action by arguing that they were within the class that section 3-608 was designed to
benefit and that their injuries were those that section 3-608 was designed to prevent. Id. at 462.
In particular, the plaintiffs argued that section 3-608 prohibited retaliation by a nursing home
against, inter alia, employees who reported abuse or neglect of a nursing home resident or who
aided in the investigation of such a report. Id. The plaintiffs thus argued that section 3-608 was
designed to protect nursing home employees, such as themselves, who had suffered retaliation
by their employer as a result of aiding an investigation of their employer. Id.
¶ 34 The supreme court rejected that argument, noting that the plaintiffs had erroneously
focused on a single provision of the Nursing Home Care Act, rather than looking at the statute
as a whole. Id. at 462-63. The supreme court reasoned that the Nursing Home Care Act, when
viewed as a whole, was not designed to protect nursing home employees from retaliatory
conduct, despite the fact that section 3-608 prohibited retaliation against nursing home
-8-
employees who reported mistreatment of residents. Id. at 463. Indeed, the express language of
section 3-608 revealed that it was not primarily concerned with protecting nursing home
employees from retaliatory conduct by their employers, but rather sought “first and foremost to
protect nursing home residents.” Id. at 464.
¶ 35 In the case at bar, Dr. Davis similarly relies on a single provision, actually an exception
within a single provision, to put him in the class of people the Medical Studies Act was
intended to benefit. However, as in Fisher, the existence of the confidentiality exception does
not alter the overall purpose of the Medical Studies Act. As Tunca correctly noted, the purpose
of the Medical Studies Act is to ensure that members of the medical profession will effectively
engage in self-evaluation of their peers in the interest of advancing the quality of health care.
Tunca, 2012 IL App (1st) 110930, ¶ 21. Consistent with this purpose, the Tunca court
specifically rejected the plaintiff’s argument that he was part of the class that the Medical
Studies Act was enacted to benefit. Id. Rather, it is the general public who stands to gain from
higher quality health care. Id. Though Dr. Davis tries to distinguish Tunca, the fact remains
that he, like the plaintiff in Tunca, is not part of the class that the Medical Studies Act was
enacted to benefit. The Medical Studies Act protects the general public, not doctors. Thus, the
presence of the confidentiality exception does not elevate Dr. Davis into the class of people the
Medical Studies Act was intended to benefit.
¶ 36 Second, the injury that the Medical Studies Act was designed to prevent is the increased
rates of death and illness that could occur without candid self-evaluation, not the loss of
referrals that could result from the dissemination of information generated during a physician’s
peer review process. Id. Therefore, the loss of an employment prospect for whatever reason,
including a negative peer review, is not the type of injury that the Medical Studies Act was
designed to prevent.
¶ 37 Third, a private right of action under the circumstances here is not consistent with the
underlying purpose of the statute. The purpose of the Medical Studies Act is to ensure honest
peer evaluation to advance the quality of health care for the general public, and confidentiality
encourages such honesty. Giving Dr. Davis a private right of action pursuant to the
confidentiality exception would have the opposite effect, deterring honest peer evaluation. See
Jenkins v. Wu, 102 Ill. 2d 468, 480-81 (1984) (doctors seem to be reluctant to engage in strict
peer review due to a number of apprehensions, including loss of referrals, respect, and friends,
possible retaliations, vulnerability to torts, and fear of malpractice actions). Indeed, Dr.
Davis’s goal of identifying the individual or individuals who he believes have wrongly
disparaged him would discourage the very information the statute is intended to promote.
Reading the confidentiality exception to give an implied private right of action would swallow
the protection afforded by the Medical Studies Act.
¶ 38 Fourth, our supreme court has found an implied private right of action under a statute only
in cases where the statute would be ineffective, as a practical matter, unless such an action
were implied. Fisher, 188 Ill. 2d at 464. This is not the situation here, as section 8-2105 of the
Medical Studies Act provides that the improper disclosure of privileged information is
punishable as a Class A misdemeanor (735 ILCS 5/8-2105 (West 2008)).
-9-
¶ 39 In arguing that the Medical Studies Act contains no remedy for a violation of its
confidentiality exception, Dr. Davis again mistakenly assumes that he is a member of the class
the statute was intended to benefit. See Fisher, 188 Ill. 2d at 464 (while encouragement of
honesty and candor among the plaintiffs was certainly consistent with the underlying purpose
of the Nursing Home Care Act, an implied private right of action for employees was not
necessary in order to achieve that purpose, because the statute contained numerous
mechanisms to encourage the reporting of violations). As the Tunca court noted, Dr. Davis
may pursue a common-law remedy such as a slander action. See Tunca, 2012 IL App (1st)
110930, ¶ 22.
¶ 40 Finally, although Dr. Davis characterizes Tunca’s resolution as to an implied private right
of action as dicta, such a distinction is meaningless because we are not bound to follow
appellate court decisions outside of our district. See Appelhans v. McFall, 325 Ill. App. 3d 232,
239 (2001) (one district of the appellate court is not bound to follow the decisions of other
districts, even though there may be compelling reasons to do so when addressing factually
similar cases). For the reasons stated, we are persuaded by the analysis in Tunca. Thus, we
determine that the Medical Studies Act does not give Dr. Davis an implied private right of
action for an alleged violation of its confidentiality exception.
¶ 41 B. Credentials Act
¶ 42 Next, Dr. Davis argues that another confidentiality exception, that in section 15(h) of the
Credentials Act, also requires the Hospital to disclose its credentialing information. Section
15(h) provides, in relevant part:
“Any credentials data collected or obtained by the health care entity, health care plan,
or hospital shall be confidential, as provided by law, and otherwise may not be
redisclosed without written consent of the health care professional, except that in any
proceeding to challenge credentialing or recredentialing, or in any judicial review, the
claim of confidentiality shall not be invoked to deny a health care professional, health
care entity, health care plan, or hospital access to or use of credentials data.”
(Emphases added.) 410 ILCS 517/15(h) (West 2008).
¶ 43 Again, the Hospital responds that the Credentials Act does not give Dr. Davis a private
right of action, either express or implied, for an alleged violation of its confidentiality
exception. For the reasons previously stated, the Hospital’s defense that the Credentials Act
provides no private right of action is not forfeited.
¶ 44 There is no case law articulating the purpose of the Credentials Act, so we begin with a
summary of the statute’s provisions. See Metzger v. DaRosa, 209 Ill. 2d 30, 34-35 (2004) (in
construing a statute, the primary objective of this court is to ascertain and give effect to the
intent of the legislature, and the plain language of the statute is the best indicator of the
legislature’s intent). The Credentials Act provides for the establishment of a 13-member
Health Care Credentials Council (410 ILCS 517/10 (West 2008)); the development and use of
uniform health care and hospital credentials forms (410 ILCS 517/15 (West 2008)); a single
credentialing cycle and a single site survey for the collection of credentials data of all health
care professionals in a group (410 ILCS 517/20, 25 (West 2008)); a study by the Department of
- 10 -
Public Health and the Health Care Credentials Council of the need for coordinated credentials
data verification (410 ILCS 517/30 (West 2008)); the adoption of rules by the Department of
Public Health and the Health Care Credentials Council to enforce the above requirements (410
ILCS 517/35 (West 2008)); the enforcement of the statute’s requirements by the Department of
Public Health (410 ILCS 517/40 (West 2008)); and the adoption of the Illinois Administrative
Procedure Act and the Administrative Review Law such that all final administrative decisions
of the Department of Public Health are subject to judicial review (410 ILCS 517/45, 50 (West
2008)).
¶ 45 The Credentials Act requires that specific information be collected from health care
professionals, including physicians, by hospitals, health care entities, and health care plans
(collectively “health care entities”) as part of the credentialing and recredentialing process. See
410 ILCS 517/5 et seq. (West 2008); 22 Robert John Kane et al., Illinois Practice § 22:18 (3d
ed. 2007). The Credentials Act defines “credentialing” as “the process of assessing and
validating the qualifications of a health care professional.” 410 ILCS 517/5 (West 2008).
“Recredentialing” is “the process” by which a health care entity ensures that “a health care
professional who is currently credentialed” by the health care entity “continues to meet the
credentialing criteria” used by the health care entity “no more than once every 2 years.” Id.
“Credentials data” refers to “data, information, or answers to questions required by a health
care entity, health care plan, or hospital to complete the credentialing or recredentialing of a
health care professional.” Id.
¶ 46 The Credentials Act streamlines the process of credentialing and recredentialing by
requiring health care entities to use the “uniform” form created by the Department of Public
Health and the Health Care Credentials Council. See 410 ILCS 517/15 (West 2008). The
uniform form includes the credentials data commonly requested by health care entities and
minimizes the need for the collection of additional credentials data. Id. The Credentials Act
also requires health care professionals to provide any corrections, updates, and modifications
to their credentials data to ensure that all credentials data remains current. Id.
¶ 47 The Credentials Act contains no express private right of action. Regarding an implied
private right of action under the Credentials Act, we agree with the Hospital that none exists
here.
¶ 48 First, Dr. Davis is not a member of the class for whose benefit the statute was enacted. In
looking at the Credentials Act as a whole, we believe that its purpose is to standardize and
regulate the collection of credentials data by health care entities during the credentialing and
recredentialing processes. The adoption of a uniform form ensures accuracy, completeness,
efficiency, and current information, which in turn ensures that health care entities correctly
assess and validate the qualifications of health care professionals. Like the Medical Studies
Act, the Credentials Act provides that credentials data is confidential. Making this information
confidential further ensures its accuracy through honest peer review. By isolating the
confidentiality exception, Dr. Davis repeats the mistake of ignoring the overall purpose of the
statute. The purpose of the statute is to standardize and regulate the collection of credentials
data to ensure that health care entities correctly assess and validate health care professionals’
qualifications. The correct assessment and validation of health care professionals’
- 11 -
qualifications benefits the general public, as opposed to physicians, by ensuring that only
qualified health care professionals treat patients. Cf. Metzger, 209 Ill. 2d at 38 (the Personnel
Code (20 ILCS 415/19c.1 (West 2002)) was designed primarily to benefit the general public by
ensuring competent employees for government bodies). Therefore, Dr. Davis is not among the
class for whose benefit the Credentials Act was enacted.
¶ 49 Second, the injury that the Credentials Act was designed to prevent is the incorrect
assessment and validation of a health care professional’s qualifications. It is impossible to
accurately assess and validate a health care professional’s qualifications if the data collected is
inaccurate, incomplete, or not up to date. The obvious risk is the credentialing and
recredentialing of unqualified health care professionals, which would affect the quality of
health care that patients receive. By regulating and standardizing the credentialing and
recredentialing processes, the Credentials Act was designed to prevent this sort of injury.
Contrary to Dr. Davis’s assertion, the statute was not designed to allow access to confidential
credentials data or prevent the injury of the loss of an employment offer.
¶ 50 Third, a private right of action under the circumstances here is not consistent with the
underlying purpose of the Credentials Act. As stated, the purpose of the statute is to
standardize and regulate the collection of credentials data to ensure that health care entities
correctly assess and validate health care professionals’ qualifications. Honest peer evaluation
is critical to the collection of accurate credentials data, and giving Dr. Davis access to such
confidential information would deter honesty and run counter to the purpose of the statute.
¶ 51 Fourth, there is no need to imply a private right of action to remedy a violation of the
Credentials Act, because the statute provides a comprehensive enforcement scheme. The
Credentials Act expressly gives the Department of Public Health the authority to enforce its
provisions. See 410 ILCS 517/40 (West 2008) (“In addition to any other penalty provided by
law, any health care entity, health care plan, hospital, or health care professional that violates
any Section of this Act shall forfeit and pay to the Department a fine in an amount determined
by the Department of not more than $1,000 for the first offense and not more than $5,000 for
each subsequent offense.”). To this end, the Department of Public Health has promulgated
rules enforcing the Credentials Act. See 77 Ill. Adm. Code 965.210 (2008) (filing of
complaints under the Credentials Act); 77 Ill. Adm. Code 965.230 (2008) (determining
whether the Department of Public Health should take adverse action).
¶ 52 In addition, the Credentials Act adopts both the Administrative Procedure Act and the
Administrative Review Law. See 410 ILCS 517/45, 50 (West 2008). “Where the statute
creating or conferring power on an administrative agency expressly adopts the Administrative
Review Law, a circuit court has no authority to entertain an independent action.” Metzger, 209
Ill. 2d at 42. As in Metzger, where the Personnel Code similarly provided that the
Administrative Review Law was applicable, the legislature has demonstrated its intent not to
imply a private right of action to enforce the Credentials Act. See id. at 43 (in providing that the
Administrative Review Law was applicable to the Personnel Code, the legislature had
demonstrated its intent that no private right of action existed). Further, as noted above, Dr.
Davis may pursue a common-law remedy.
- 12 -
¶ 53 III. CONCLUSION
¶ 54 For the reasons stated, Dr. Davis has no private right of action for alleged violations of the
confidentiality exception under either the Medical Studies Act or the Credentials Act. The
judgment of the Du Page County circuit court is affirmed.
¶ 55 Affirmed.
- 13 -