No. 3-05-0774
Filed February 16, 2007.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2007
SUE RAMIREZ, individually ) Appeal from the Circuit Court
and on behalf of a class of ) of the 10th Judicial Circuit,
similarly situated individuals, ) Peoria County, Illinois,
)
Plaintiff-Appellant, )
)
v. )
) No. 01-L-385
SMART CORPORATION, a )
California corporation )
authorized to do business )
in the State of Illinois, ) Honorable
) Joe Vespa,
Defendant-Appellee. ) Judge, Presiding.
_________________________________________________________________
JUSTICE LYTTON delivered the opinion of the court:
_________________________________________________________________
Plaintiff Sue Ramirez obtained copies of her hospital medical
records from Smart Corporation, a company that provides record
retrieval and copying service. She later filed a four-count
complaint against Smart, alleging that the company overcharged
hospital patients for such services and requesting class action
certification. The trial court granted summary judgment on all
four counts and denied certification of the class. We affirm in
part, reverse in part and remand for further proceedings.
In 1993, Pekin Hospital contracted with Smart to respond to
requests from patients and their agents for copies of patient
records. When a request was received, the hospital would turn it
over to Smart which maintained its own employees and copying
machine on the hospital premises. A Smart employee retrieved the
patient’s records from the record storage area and copied them.
The Smart employee then returned the file to a hospital employee
who returned the records to the storage area. After copying the
patient’s records, Smart delivered the records to the patient,
along with a bill for the copying charges.
Ramirez sustained injuries and was treated in the emergency
room at Pekin Hospital. Shortly thereafter, Ramirez retained the
law firm of Hamm & Hanna, Ltd. and, in January 1999, filed a
workers compensation claim. To prepare the claim, attorney Robert
Hanna sent a letter to the hospital requesting copies of Ramirez’
records of her treatment. Smart responded to the request and sent
her hospital records, which totaled six pages, with a bill for
$34.78 to Hanna’s office. The charges on the bill were itemized as
follows:
"Basic fee $15.00
Per page charge $1.00 (x 6)
Photocopy Charge $21.00
Facility Retrieval/Search Fee $10.00
Shipping/Handling $3.78"
A cover letter stated:
2
"Smart will continue to copy records that you request
from this facility or, if you prefer, you may make
arrangements for one of your own personnel or an
independent copy service to copy the requested records.
However, you must obtain prior permission and schedule an
appointment with the medical records department in
advance."
Hanna’s secretary, Diana McPherson, reviewed the bill and
authorized payment. Hanna’s office paid the bill without objecting
to the amount or nature of the charges. Ramirez did not review the
invoice prior to the firm’s payment of the bill.
In an affidavit, Brenda Bouris, a hospital supervisor
responsible for records, stated that the hospital never permitted
patients or patients’ attorneys to personally handle their own
medical records or copy the records themselves. While the hospital
was under contract with Smart, the only way a patient could obtain
a copy of the patient’s records was for Smart to perform the
copying.
Ramirez filed a complaint "seeking to represent a class of all
persons in Illinois who had been victimized by Smart’s excessive
charges to obtain copies of their own records." Count I alleged
that Smart charged an unreasonable price under the common law.
Count II contended that Smart violated the Inspection of Hospital
Records Act (Hospital Records Act) (735 ILCS 5/8-2001 (West 1998)).
3
Count III alleged that Smart’s fees were deceptive and misleading
and violated the Consumer Fraud and Deceptive Business Practices
Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1998)).
Count IV claimed that Smart was unjustly enriched because of the
excessive fees.
Ramirez also filed a motion for class certification. The
court denied the request, finding that Ramirez was not an adequate
representative of the class because Hanna’s office, not Ramirez,
had reviewed the Smart invoice and paid the bill.
Smart moved for summary judgment on all counts. The court
granted judgment in favor of Smart, concluding that Ramirez’ claims
were barred by the voluntary payment doctrine. The trial court
also held that Ramirez was precluded from suing for damages under
the Hospital Records Act because the Act contains an express right
of action compelling a hospital to permit copying of records with
an award of attorney fees. Finally, the court concluded that
Smart’s charges were not deceptive or unfair under the Consumer
Fraud Act.
I. Summary Judgment
Summary judgment is a drastic method of disposing of
litigation. It is proper only when the pleadings, depositions,
and admissions clearly demonstrate that there are no genuine issues
of material fact and the moving party is entitled to judgment as a
matter of law. 735 ILCS 5/2-1005(c) (West 2004); Pennsylvania Life
4
Insurance Co. v. Pavlick, 265 Ill. App. 3d 526 (1994). In
reviewing an order for summary judgment, all of the facts must be
viewed in a light most favorable to the nonmoving party. Eyrich v.
Johnson, 279 Ill. App. 3d 1067 (1996). Thus, on examination of the
record, if it can be fairly stated that a triable issue of fact
exists, the motion should be denied. Bellmer by Bellmer v. Charter
Security Life Insurance Co., 140 Ill. App. 3d 752 (1986). When a
trial court grants summary judgment, we review de novo. Courson ex
rel. Courson v. Danville School District No. 118, 301 Ill. App. 3d
752 (1998).
A. Voluntary Payment Doctrine
Ramirez claims that the trial court erred in granting summary
judgment on the basis that her claims were barred by the voluntary
payment doctrine. Ramirez argues that the doctrine does not apply
to this case because she had no "reasonable alternative" for
obtaining her medical records from any other source.
Under the voluntary payment doctrine, absent fraud, duress or
mistake of fact, money voluntarily paid on a claim of right to the
payment cannot be recovered on the ground that the claim was
illegal. King v. First Capital Financial Services Corp., 215 Ill.
2d 1 (2005). The voluntary payment doctrine applies to any cause
of action which seeks to recover payment of a claim of right,
whether that claim is premised on a contractual relationship or a
statutory obligation. Smith v. Prime Cable of Chicago, 276 Ill.
5
App. 3d 843 (1995). Though payment under protest is the typical
means by which a plaintiff signifies his contention that a tax or
charge is improper, the absence of such a protest does not, without
more, require the application of the voluntary payment doctrine.
Getto v. City of Chicago, 86 Ill. 2d 39 (1981). It must also be
shown that the plaintiff had knowledge of the facts upon which to
base a protest and that the payments were not made under duress or
compulsion. Getto, 86 Ill. 2d at 48-49.
1.
In this case, Ramirez does not dispute that she paid the
invoices without protest. However, she claims that the exception
of duress has been adequately set forth and raises a question of
fact sufficient to defeat a motion for summary judgment.
To defeat the voluntary payment doctrine on the basis of
duress, the plaintiff must show that the payment was not voluntary
because there was some necessity that amounted to compulsion and
that the payment was made under the influence of that compulsion.
King, 215 Ill. 2d 1. Whether the plaintiff had to protest the
charge is irrelevant to the issue of duress. Geary v. Dominick’s
Finer Foods, Inc., 129 Ill. 2d 389 (1989). A plaintiff must prove
duress by demonstrating both that the service is a necessity and
that no reasonable alternative exists. Geary, 129 Ill. 2d 389. To
establish that "no reasonable alternative exists," plaintiffs need
not plead that they attempted to obtain the product or services
6
elsewhere or that they had actual knowledge of defendant’s policy
of refusal to provide the product or services if the charge was not
paid. Geary, 129 Ill. 2d 389. Moreover, plaintiffs do not have to
plead an actual threat; implied duress is sufficient. See Geary,
129 Ill. 2d 389; Getto, 86 Ill. 2d 39; Illinois Glass v. Chicago
Telephone Co., 234 Ill. 535 (1908). The issue of duress and
compulsory payment generally is one of fact to be judged in light
of all the circumstances surrounding the transaction. Smith, 276
Ill. App. 3d 843 (1995).
As set forth above, there are two prongs to the application of
the duress exception: necessity and the lack of a reasonable
alternative. Smart does not dispute that Ramirez’ medical records
were a necessity. Thus, the sole issue is whether Ramirez had a
reasonable alternative of obtaining her medical records without
paying Smart’s charges.
In her complaint, plaintiff alleged that to obtain the
requested copies of her medical records, she had to pay the charges
to Smart. She claimed that those records were not available to her
from any other source without payment of the charges. She also
submitted an affidavit which stated that the hospital did not
permit patients or their attorneys to copy the records themselves
but rather required them to use Smart. These allegations are
sufficient to raise a material issue of fact regarding duress.
Smart claims that Ramirez’ failure to protest the charges
7
prior to payment and her failure to seek access to the records
directly from the hospital precludes application of the duress
exception. However, courts have generally held that plaintiffs are
allowed to use duress as an exception to the voluntary payment
doctrine regardless of protest or actual denial of the product or
services. See Geary, 129 Ill. 2d at 407 (citing Getto, 86 Ill. 2d
39, and Illinois Glass, 234 Ill. 535). Ramirez does not have to
allege that she actually tried to obtain her records without paying
the charge and that the hospital or Smart refused to provide them.
See Getto, 86 Ill. 2d at 53 (courts will not require plaintiff to
perform a useless act to demonstrate duress); Geary, 129 Ill. 2d at
400 (taxpayer claiming tax on tampons was illegal did not have to
allege that they tried to purchase items without paying tax at
another retail store). Even if Ramirez had attempted to obtain the
records through the hospital, Bouris’s affidavit strongly suggests
that she would have been denied access and referred to Smart.
Thus, viewing the evidence liberally in favor of Ramirez, factual
questions exist regarding the availability of reasonable
alternative services.
Smart argues that the holding in Harris v. Chartone, 362 Ill.
App. 3d 878 (2005), requires the application of the voluntary
payment doctrine. We disagree.
In Harris, the plaintiffs alleged that defendant's company was
charging an unreasonable fee for copying medical records. The
8
plaintiffs’ complaint did allege that a named party had gone to the
hospital to inspect the medical records and "was not offered an
opportunity to see the records." The plaintiffs did not allege
that they had made a request in writing as required under section
8-2001 of the Hospital Records Act. The appellate court applied
the voluntary payment doctrine to dismiss the complaint, noting
that "plaintiffs’ allegations do not show that the plaintiffs were
compelled to accept the records from the defendants and pay the
defendants’ invoices." Harris, 362 Ill. App. 3d at 884.
Unlike the plaintiffs in Harris, Ramirez provided an affidavit
signed by hospital personnel which verified her allegation that she
would have been compelled to accept the records from Smart.
Plaintiff’s allegations of duress supported by affidavit are
sufficient to create a material issue of fact.
2.
Alternatively, we also consider whether the statute requiring
hospitals to provide medical records to patients precludes the
application of the voluntary payment doctrine. See Pratt v. Smart
Corporation, 968 S.W. 2d 868 (Tenn. App. 1997). Section 8-2001 of
the Hospital Records Act obligates every hospital in Illinois to
enable patients to obtain copies of their medical records. 735
ILCS 5/8/2001 (West 1998). The purpose of the statute is to allow
patients access to their medical records in a timely manner. See
Rodgers v. St. Mary’s Hospital, 149 Ill. 2d 302 (1992).
9
The statute leaves implementation of that duty to those who
are most intimately involved. It has been generally accepted that
hospitals can compel a patient to obtain their records by paying an
outside copying service. Clay v. Little Company of Mary Hospital,
227 Ill. App. 3d 175 (1995). In Clay, the court construed the
statute to imply a reasonableness standard in both the charges to
the patient as well as the manner of photocopying, finding that the
intent of the statute could not be otherwise. Thus, in order to
implement the Hospital Records Act, hospitals can use copying
services, but they must act reasonably in its implementation.
Clay, 227 Ill. App. 3d at 180. We agree with Clay that a proper
construction of the statute necessarily implies reasonableness in
the billing of patients for the service. Clay, 227 Ill. App. 3d at
180.1
In Pratt, the court held that a patient could recover
excessive charges for copies of her medical records that she had
remitted to Smart "but which were in derogation of the public
1
We note that section 8-2001 of the Hospital Records Act was
substantially amended in September of 2001. The statute now
imposes specified monetary limits on the various charges a hospital
may impose, including the costs of independent copy service
companies, for "reasonable expenses." 735 ILCS 5/8-2001 (West
2002) (amended by P.A. 92-228, eff. September 1, 2001).
10
policy behind a specific statute." Pratt, 968 S.W. 2d at 872. In
that case, the court found that Smart’s alleged actions violated
the policy established by a legislative enactment requiring that
the charges for such photocopying services be reasonable. Thus,
the company’s conduct was subject to review by the courts even
though it was fully consummated. Pratt, 968 S.W. 2d 868.
The purpose of section 8-2001, as construed, leads us to agree
with Pratt that, like Tennessee, this state has an interest in
transactions that violate "statutorily-defined public policy."
Pratt, 968 S.W. 2d at 872. The effect of such transgressive acts,
generally speaking, is that the voluntary payment rule will not be
applicable. Pratt, 968 S.W. 2d 868; see, for example, Great Lakes
Mortgage Co., v. Collymore, 14 Ill. App. 3d 68, 71 (1973) (statute
in derogation of common law abrogates common law rule to extent
expressed by words of the statute or necessarily implied from what
is expressed). Here, if proved, Smart’s allegedly excessive
charges might well violate the intent of the Hospital Records Act,
i.e., that a party must act reasonably when fulfilling its mandate.
See Clay, 277 Ill. App. 3d 175. Therefore, the voluntary payment
doctrine would not impede Ramirez’ cause of action and does not
provide an adequate basis for sustaining the trial court’s grant of
summary judgment.2
2
In her complaint, Ramirez alleges that Smart’s charges were
11
3.
We find that another exception to the voluntary payment rule,
mistake of fact, exists in this case. While a mistake of law is
sufficient to bar plaintiff’s recovery, a mistake of fact is not.
Kerr Steamship Co. v. Chicago Title & Trust Co., 120 Ill. App. 3d
998 (1983); Hartford v. Doubler, 105 Ill. App. 3d 999 (1982). The
voluntary payment doctrine provides that, absent fraud,
misrepresentation or mistake of fact, money that is voluntarily
paid under a claim of right to the payment and with full knowledge
of the facts by the payer cannot be recovered unless the payment
unfair and deceptive under the Consumer Fraud Act. The intent and
purpose of that Act lend additional support to our refusal to apply
the voluntary payment doctrine to this case. See 815 ILCS 505/1 et
seq. (West 1998). The Consumer Fraud Act is a regulatory and
remedial statute intended to give broad protection to consumers,
borrowers, and business people against fraud, unfair methods of
competition, and other unfair and deceptive business practices.
815 ILCS 505/2 (West 1998); Robinson v. Toyota Motor Credit Corp.,
201 Ill. 2d 403 (2002); Johnson v. Matrix Financial Service Corp.,
354 Ill. App. 3d 684 (2004). The object of the statute is the
protection of the public interest. Zazove v. Pelikan, Inc., 326
Ill. App. 3d 798 (2001). Thus, Smart’s allegedly excessive charges
would violate the fairness requirements of the Consumer Fraud Act
as well.
12
was made as a result of compulsion. Illinois Graphics Co. v.
Nickum, 159 Ill. 2d 469 (1994) (noting that a cause of action for
the recovery of voluntary payments made because of a mistake of
fact has long been recognized). Incomplete knowledge of facts can
contribute to the mistake of fact exception to the voluntary
payment doctrine. Alexian Brothers Heath Providers Assoc. Inc. v.
Humana Health Plan, Inc., 277 F. Supp. 2d 880 (2003). The
determination as to why the payments were made is generally an
issue of material fact not properly decided as a matter of law.
Cf. Kerr, 120 Ill. App. 3d at 1008 (mistake of fact not properly
decided on a motion to dismiss).
In this case, plaintiff alleges that some of the fees charged
by Smart were for services provided by the hospital and that she
did not know that the itemized fees included charges for services
not actually rendered by Smart when she made the payment. In her
complaint, Ramirez claims that Smart charged for services that it
did not provide and double billed fees for essentially the same
services. She also claims, based on McPherson’s deposition, that
she paid the bill based on the assumption that the charges were for
work actually performed by Smart. Plaintiff’s allegations indicate
that a mistake of fact existed concerning what services she was
paying for when she paid the bill. See Illinois Graphics, 159 Ill.
2d at 490 (inferred a mistake of fact claim based on detailed
allegations in complaint). In its motion for summary judgment,
13
Smart failed to establish that Ramirez had full knowledge of all
the circumstances relating to the charges she agreed to pay. Thus,
a genuine issue of material fact exits which precludes summary
judgment.
B. Consumer Fraud Claim
Next, plaintiff argues that the court erred in concluding, as
a matter of law, that Smart’s conduct was neither deceptive nor
unfair under the Consumer Fraud Act.
The Consumer Fraud Act is intended to protect consumers
against fraud, unfair methods of competition and other unfair and
deceptive business practices. Cripe v. Leiter, 184 Ill. 2d 185
(1998). The policy of the Act is to give broader protection than
common law fraud or negligent misrepresentation by prohibiting any
"unfair or deceptive acts or practice, including but not limited to
the use or employment of any deception, fraud, false pretense,
false promise, misrepresentation or the concealment, suppression or
omission of any material fact, with intent that others rely upon
the concealment, suppression or omission of such material fact ***
in the conduct of any trade or commerce." 815 ILCS 505/2 (West
1998). The elements of a claim under the Act are (1) a deceptive
act or practice by the defendant, (2) the defendant’s intent that
plaintiff rely on the deception, (3) the occurrence of the
deception during a course of conduct involving trade or commerce,
(4) actual damage to the plaintiff and (5) proximately caused by
14
the deception. Avery v. State Farm Mutual Automobile Insurance,
216 Ill. 2d 100 (2005). Recovery may be had for unfair as well as
deceptive practices. Saunders v. Michigan Avenue National Bank,
278 Ill. App. 3d 307 (1996). To be unfair, the defendant’s conduct
must: (1) offend public policy; (2) be immoral, unethical,
oppressive, or unscrupulous; and (3) cause substantial injury to
consumers. Robinson, 201 Ill. 2d 403. "All three criteria do not
need to be satisfied to support a finding of unfairness. A
practice may be unfair because of the degree to which it meets one
of the criteria or because to a lesser extent it meets all three."
Robinson, 201 Ill. 2d at 418 (quoting Cheshire Mortgage Service,
Inc. v. Montes, 612 A. 2d 1130 (Conn 1992)).
In her complaint, Ramirez alleged that Smart engaged in
deceptive conduct by "describing fees in an inherently vague and
ambiguous manner as to confuse patients into believing that they
are being charged for important services provided, when they are
not." Ramirez alleged that Smart charged for services which it did
not provide. The complaint also alleged that patients were charged
"for the actual cost of certain services, like shipping and
handling, although defendant charged amounts far in excess of the
actual costs of such services." In support of these allegations,
Ramirez submitted the affidavit of Hanna’s assistant, Diane
McPherson. The affidavit stated that McPherson paid the bill and
that she did so believing the invoice represented separate charges
15
for actual costs incurred by Smart. Ramirez also presented the
invoice from Smart which listed a "Basic Fee" of $15.00 in addition
to a $1 "Per Page" charge, amounting to a total "Photocopy Charge"
of $21.00. The invoice also included a "Shipping/Handling" fee of
$3.78. The purpose of the basic fee, as well as the other charges,
was not disclosed on the invoice, and Smart has offered no evidence
to contradict Ramirez’ claim that the charges do not represent
actual expenses. The mere recitation of the charges suggests that
a reasonable jury could find that the invoice deceptively or
confusingly caused consumers to pay these bills based on the
reliance that they covered actual expenses. See Martin v. Heinold
Commodities, Inc., 163 Ill. 2d 33 (1994) (failure to disclose
actual charges for "foreign service fee" was misleading and
deceptive).
At a minimum, a reasonable inference from the limited evidence
adduced indicates that Ramirez sufficiently pled a cause of action
under the statute. This cause involves a uniform billing practice
that, at this stage of the proceedings, has the potential to be
unethical and offend public policy. Accordingly, we find that
there is sufficient evidence to create a genuine issue of material
fact as to whether Smart’s actions violated the Consumer Fraud Act.
See Avery, 216 Ill. 2d 100 (generally, proof of elements of
Consumer Fraud Act involve factual questions and determinations).
Moreover, our conclusion is consistent with the requirement that
16
the Consumer Fraud Act be construed liberally to promote its
purpose. Robinson, 201 Ill. 2d at 417. We therefore reverse the
entry of summary judgment against Ramirez on count IV of her
complaint.
C. Hospital Records Act
Ramirez argues that the trial court erred in granting judgment
as a matter of law on her claim for damages based on Smart’s
alleged violation of the Hospital Records Act. She maintains that,
contrary to the court’s ruling, section 8-2001 of the Hospital
Records Act does not preclude a private right of action.
Section 8-2001 of the Hospital Records Act provides as
follows:
"Examination of records. Every private and public
hospital shall, upon the request of any patient who has
been treated in such hospital and after his or her
discharge therefrom, permit the patient, his or her
physician or authorized attorney to examine the hospital
records *** and permit copies of such records to be made
by him or her or his or her physician or authorized
attorney. A request for examination of the records shall
be in writing and shall be delivered to the administrator
of such hospital.
***
Failure to comply with the time limit requirement of this
17
Section shall subject the denying party to expenses and
reasonable attorney fees incurred in connection with any
court ordered enforcement of this provision of this
Section." 735 ILCS 5/8-2001 (West 1998).
Illinois courts have consistently held that a statute’s
provision for an express right of action precludes any implied
right of action as a matter of law. Fisher v. Lexington Health
Care, Inc., 188 Ill. 2d 455 (1999); Metzger v. DaRosa, 209 Ill. 2d
30 (2004); King, 215 Ill. 2d 1. In Metzger, 209 Ill. 2d 30, the
supreme court held "where, as here, the legislature has expressly
provided a private right of action in a specific section of the
statute, we believe the legislature did not intend to imply private
rights of action to enforce another section of the same statute."
Metzger, 209 Ill. 2d at 44; see also King, 215 Ill. 2d 1 (holding
no implied right of action for damages for violation of the
Attorney Act because the Act expressly provided for contempt
sanctions).
In this case, count II of Ramirez’ complaint seeks damages for
charges by Smart which she alleges violate section 8-2001 of the
Hospital Records Act. That statute however expressly provides
patients with a cause of action for attorney fees if they are
denied access to their records. Where, as here, the legislature
has expressly provided a private right of action in a specific
section of the statute, the legislature did not intend to imply
18
private rights of action to enforce other provisions. "Where the
legislature intended to create private right of action for damages,
it will expressly provide for that right." Metzger, 209 Ill. 2d at
43. Thus, there is no implied right of action for damages under
the Act. The trial court properly granted summary judgment in
favor of Smart on count II.
D. Unjust Enrichment
Plaintiff contends that the trial court erred in granting
summary judgment on her claim for unjust enrichment.
The theory of unjust enrichment is based on a contract implied
in law. People ex rel Hartigan v. E & E Hauling, Inc., 153 Ill. 2d
473 (1992). To recover under a claim for unjust enrichment, the
plaintiff must allege that the defendant voluntarily accepted a
benefit which would be inequitable for him to retain without
payment. Aardema v. Fitch, 291 Ill. App. 3d 917 (1997). Because
unjust enrichment is based on an implied contract, "where there is
a specific contract which governs the relationship of the parties,
the doctrine of unjust enrichment has no application." La Throp v.
Bell Federal Savings & Loan Association, 68 Ill.2d 375, 391 (1977).
As Ramirez’ attorney, Hanna requested that the hospital copy
the records; he received the copies with a bill from Smart
expressly stating the price; and thereafter paid the bill and
retained the copies. Thus, Hanna, acting on behalf of Ramirez,
entered into an agreement with Smart for the copies at a specified
19
price. See ARCO Petroleum Products Co. v. R & D Automotive, Inc.,
118 Ill. App. 3d (1983) (party accepts a tendered contract by
accepting benefits of the contract). Since a specific agreement
governed the relationship between the parties, Ramirez cannot
maintain a claim based on unjust enrichment. Therefore, the trial
court properly entered summary judgment on count IV.
II. Class Certification
To maintain a class action in Illinois, the court must find
that:
"(1) The class is so numerous that joinder of all members
is impracticable.
(2) There are questions of fact or law common to the
class, which common questions predominate over any
questions affecting only individual members.
(3) The representative parties will fairly and adequately
protect the interests of the class.
(4) The class action is an appropriate method for the
fair and efficient adjudication of the controversy." 735
ILCS 5/2-801 (West 1998).
The trial court has broad discretion to determine whether a
proposed class satisfies the requirement for class certification
and should err in favor of maintaining class actions. Clark v. TAP
Pharmaceutical Products, Inc., 343 Ill. App. 3d 538 (2003).
Smart claims that class certification was properly denied
20
because Ramirez does not adequately represent the class and no
predominate questions of law or fact are common to the class.
Since Smart does not dispute the remaining requirements, we will
limit our analysis to these two factors.
A. Adequate Representative
Ramirez argues that she is an adequate representative of the
class although she may have no personal knowledge of Smart’s
misleading or deceptive billing practices.
To adequately represent the class, the proposed class action
plaintiff must be a member of the class. McCabe v. Burgess, 57
Ill. App. 3d 450 (1978). In other words, the named plaintiff must
be able to maintain an individual cause of action against the
defendant. Avery, 216 Ill. 2d 100. Named plaintiffs must also
establish that they are not seeking relief which is potentially
antagonistic to the non-represented members of the class. Client
Follow-Up Co. v. Hynes, 105 Ill. App. 3d 619 (1982).
The purpose of the adequate representation requirement is
merely to ensure that all class members will receive proper and
efficient protection of their interests in the proceedings. Gordon
v. Boden, 224 Ill. App. 3d 195 (1991). It has long been recognized
that a plaintiff bringing a class action suit need only allege a
viable individual cause of action, indicate that the claim is being
brought as a class action, and include factual allegations broad
enough to establish the possible existence of a class action. P.J.
21
Concrete Pumping Service, Inc. v. Nextel West Corporation, 345 Ill.
App. 3d 992 (2004); Hayna v. Arby’s, Inc., 99 Ill. App. 3d 700
(1981). The class representative need only have a marginal
familiarity with the facts of the case and does not need to
understand the legal theories upon which his case is based. Clark,
343 Ill. App. 3d 538. Thus, class certification may be proper even
though the named plaintiff does not understand the complaint, has
little knowledge of what the lawsuit is about and relies almost
entirely upon the representations of another person. Eggleston v.
Chicago Journeymen Plumbers’ Local Union No. 130, 657 F. 2d 890
(7th Cir. 1981) (citing Surowitz v. Hilton Hotels Corp., 383 U.S.
363 (1966)).
In this case, the trial court denied the motion to certify the
class because Ramirez did not personally request the records or
review the bill prior to paying for Smart’s services. However,
class certification of the consumer fraud claim is not defeated
because Ramirez did not personally ask for her medical records. As
Ramirez’ attorney, Hanna was acting as her agent when he sent the
letter to the hospital. See Doyle v. Shlensky, 120 Ill. App. 3d
807 (1983). Additionally, class certification is not defeated by
Ramirez’ failure to view Smart’s bill. Hanna’s delegation of the
financial matters of his clients’ accounts to his employee,
McPherson, is also an agency relationship. Lang v. Silva, 306 Ill.
App. 3d 960 (1999) (employee-employer relationship is one of
22
agency). Therefore, Ramirez can establish the elements of an
individual consumer fraud claim through her agents, Hanna and
McPherson. Accordingly, it is not readily apparent that Ramirez’
lack of personal knowledge will interfere with her ability to
prosecute the claim on behalf of the class. See Surowitz, 383 U.S.
363 (certification proper although representative did not
understand her complaint, lacked knowledge of facts of case, did
not know defendants by name, nor even the nature of their
misconduct); P.J.’s Concrete Pumping Service, Inc., 345 Ill. App.
3d 992 (class certified even though plaintiff filed consumer fraud
claim based on communications to plaintiff’s agent).
Further, Ramirez’ interests are not antagonistic to the class.
Her interests are the same as those of the absentee class members,
to seek damages based on defendant's deceptive or unfair charges
for copying their medical records. Although other members of the
class may have different levels of knowledge about the correctness
of the charges and the amount of damages, Ramirez has sufficient
interest in the outcome to ensure vigorous advocacy of the claim.
See Walczak v. Onyx Acceptance Corp., 365 Ill. App. 3d 664 (2006)
(individual questions of injury and damages do not defeat class
certification). Our consideration of these factors convinces us
that Ramirez is an adequate class representative for a consumer
fraud claim against Smart.
B. Common Questions of Fact or Law
23
Smart claims that class certification must still be denied
because common questions of fact do not predominate the case.
Smart argues that individual inquiries will be required to
determine the amount of overpayment by each patient and the
information those patients relied upon in paying Smart’s bill.
So long as questions of fact or law common to the class
predominate over questions affecting only individual members of the
class, the statutory requisite of commonality has been met.
Steinberg v. Chicago Medical School, 69 Ill. 2d 320 (1977). A
common question may be shown when the claims of the individual
class members are based on the common application of a statute
where the members are aggrieved by the same or similar conduct.
Avery, 321 Ill. App. 3d at 280. A class action can properly be
prosecuted where defendants allegedly acted wrongfully in the same
basic manner as to an entire class. In such circumstances, the
common class questions predominate the case, and the class action
is not defeated. Gordon, 224 Ill. App. 3d 195.
A class action will not be defeated solely because factual
variations exist among class members’ grievances. See Clark, 343
Ill. App. 3d at 548 (individual questions of overpayment in a
consumer fraud case do not bar class certification on the common
questions involved because court may order separate hearings on
individual questions of damages after determination of common
questions of law and fact); Ridings v. Canadian Imperial Bank of
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Commerce Trust Co., 94 F.R.D 147 (N.D. Ill. 1982) (individual
questions of reliance in securities fraud case do not bar class
certification on the commonality requisite); see also Steinberg, 69
Ill. 2d 320, 228. It is appropriate to litigate the questions of
fact common to all members of the class and, after the
determination of the common questions, to determine in an ancillary
proceeding the questions that may be peculiar to an individual
class member. Charles Hester Enterprises, Inc. v. Illinois
Founders Insurance Co., 137 Ill. App. 3d 84 (1985).
The record reveals that the common consumer fraud question is
whether Smart engaged in an unfair or deceptive scheme to charge
hospital patients an excessive fee for copying their medical
records. See 815 ILCS 505/2 (West 1998). That claim is based on
Smart’s uniform billing procedure and the standard or basic fee
listed on all Smart invoices. If, at trial, it is found that Smart
engaged in an unfair or deceptive practice of charging excessive
fees with the intent that hospital patients rely on that deception,
then Smart would have acted wrongfully in the same basic manner as
to the entire class. The common question of liability will have
been established, and the class members may recover a refund for
their overpayment. The factual differences in overpayment and
reliance by each patient do not present individual issues
sufficient to bar class certification. See Clark, 343 Ill. App. 3d
at 549. We therefore conclude that common issues regarding the
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consumer fraud claim predominate over the issues that affect only
individual members. 735 ILCS 5/2-801(2) (West 2000). Accordingly,
the denial of the request for class certification as to count III
is reversed.
CONCLUSION
We reverse that portion of the trial court’s order granting
summary judgment on count III and denying class certification and
remand for further proceedings on the consumer fraud claim. The
judgment of the circuit court of Peoria County is otherwise
affirmed.
Affirmed in part and reversed in part; cause remanded.
LYTTON, PJ., with HOLDRIDGE and O'BRIEN, JJ., concurring.
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