dissenting:
In his special concurrence in Zimmerman v. Buchheit of Sparta, Inc., 164 Ill. 2d 29, 47-48 (1994), Justice Bilandic argued that courts should not recognize a private right of action for damages based on violation of a statute if the General Assembly has not included such a remedy in the statute itself. Justice Rathje, who was on the appellate court panel which considered this case, echoed that view in his dissenting opinion. 301 Ill. App. 3d 547, 556-57 (Rathje, J., dissenting). With today’s decision, their view has attained the force of law. For all practical purposes, implied rights of action have been abolished in Illinois.
Such a result was foretold by our court’s recent decision in Abbasi v. Paraskevoulakos, 187 Ill. 2d 386 (1999). In that case, my colleagues refused to allow the plaintiff to assert a claim for damages based on defendants’ violation of Chicago’s Municipal Code even though the law expressly authorized the type of damage claim she asserted. Abbasi, 187 Ill. 2d at 403-04 (Harrison, J., dissenting). The court offered no rationale for that portion of its ruling, but the effect was clear: if express private rights of action for violations of the law are no longer permissible, implied private rights of action will not be recognized either.
The court’s new direction marks a radical departure from past precedent. Since the middle of this century, we have continually been willing to imply a private remedy to give effect to a particular statute. Rodgers v. St. Mary’s Hospital, 149 Ill. 2d 302 (1992) (implied right for damages for violation of X-Ray Retention Act); Corgan v. Muehling, 143 Ill. 2d 296 (1991) (implied right of action for nuisance under the Psychologist Registration Act); Sawyer Realty Group, Inc. v. Jarvis Corp., 89 Ill. 2d 379 (1982) (implied right of action under Real Estate Brokers and Salesmen License Act); Kelsay v. Motorola, Inc., 74 Ill. 2d 172 (1978) (implied right of action for retaliatory discharge for employees who are terminated because they filed a claim under the Workers’ Compensation Act); see Heimgaertner v. Benjamin Electric Manufacturing Co., 6 Ill. 2d 152, 155 (1955) (“[w]hen a statute is enacted for the protection of a particular class of individuals, a violation of its terms may result in civil as well as criminal liability, even though the former remedy is not specifically mentioned therein”). This precedent has served Illinois well, and I strongly believe that we should continue to adhere to it.
I have but one vote on this court. If my colleagues are intent on changing the law, I am powerless to stop them. I believe it is incumbent upon them, however, to be forthright about what they are doing. When they invoke the precedent, then proceed to contort it to reach the result they want, as they have done here and in Abbasi, they serve no one’s interests.
If I am wrong about my colleagues’ motives and they do not, in fact, intend to abrogate the doctrine of implied private rights of action, their decision in this case is untenable. Their contention that section 3 — 608 of the Nursing Home Care Act (210 ILCS 45/3 — 608 (West 1996)) “was not designed to protect nursing home employees” (188 Ill. 2d at 461) defies reason. The authoring justice himself recently reminded us that the best indication of legislative intent is the plain meaning of the language used by the legislature in drafting a statute. Weatherman v. Gary-Wheaton Bank of Fox Valley, 186 Ill. 2d 472, 486 (1999). The language of section 3 — 608 evinces a clear and unambiguous intention by the General Assembly to protect nursing home employees from the sort of retaliation alleged in this case. The statute expressly provides that nursing homes are prohibited from harassing, dismissing or retaliating against employees who report the abuse or neglect of a resident to the Illinois Department of Public Health. How could the General Assembly have made the point any clearer?
Equally bewildering is my colleagues’ statement that they “hesitate to imply *** actions under a statute without explicit legislative authority.” 188 Ill. 2d at 468. If there were explicit legislative authority for a private right of action, there would be no need to imply a right of action. The right of action would be express, and the only question would be whether plaintiffs met the statute’s requirements for recovery.
The only time courts need to evaluate whether a cause of action should be implied under a statute is where, as here, the law does not specifically authorize a civil action for damages. In making this evaluation, the relevant inquiry is whether (1) plaintiff is a member of the class for whose benefit the statute was enacted, (2) recognition of a private right of action is consistent with the underlying purpose of the statute, (3) plaintiff’s injury is one the statute was designed to prevent, and (4) implying a private right of action is necessary to provide an adequate remedy for violations of the statute. Noyola v. Board of Education, 179 Ill. 2d 121, 131 (1997).
These factors were correctly applied by the appellate court when it held that the circuit court had erred in dismissing plaintiffs’ complaint for failure to state a cause of action. In overturning the appellate court’s judgment, the majority makes much of the fact that the Nursing Home Care Act includes various statutory sanctions and remedies to help accomplish its purposes. It is true that such sanctions and remedies exist. It is also true, however, that the existence of regulatory enforcement procedures and statutorily defined remedies is not dis-positive. A private right of action for compensatory damages may still be implied if the express remedies available under the law are inadequate to redress the injuries the plaintiffs have sustained. Sawyer Realty Group, Inc., 89 Ill. 2d at 389-91.
The residents of nursing homes are among our weakest and most vulnerable citizens. The General Assembly enacted the Nursing Home Care Act to help protect them against inadequate, improper and degrading treatment. Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 357-58 (1986). My colleagues believe that this objective will be adequately served through provisions in the law allowing nursing home residents the right to seek redress themselves. As I consider Mrs. Windt’s lifeless body hanging from the lap bar in her bed, this notion strikes me as profoundly misguided. According to the record, Mrs. Windt was so disruptive that she could not eat with other residents and so infirm that she could not manage to extricate herself from her own bed. Even if she had survived, I cannot imagine how she could possibly have pressed a civil lawsuit under the Nursing Home Care Act.
Mrs. Windt was lucky in one regard. She had family members to look in on her. Many nursing home residents are not so fortunate. They are alone, separated by death or geography or circumstance from their spouses, families and friends. As age takes its inevitable toll, they may scarcely recall who they are or where they are. Feelings of helplessness and disorientation develop. Dependency increases.
To the extent that residents remain capable of voicing dissatisfaction with their treatment, their desire for redress may be overshadowed by fears of retaliation. In Butler, Nursing Home Quality of Care Enforcement: Part I — Litigation by Private Parties, 14 Clearinghouse Rev. 622, 647 (1980), an article we cited in Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 360 (1986), the point was aptly made:
“[N]ursing home residents are timorous plaintiffs — they are under the total physical control of the very operators whom they seek to sue; with advanced age and/or physical debility, they are easily intimidated and are easy victims of retaliation, which may be violent abuse or subtle withholding of privileges and assistance. State laws prohibiting retaliation against residents for filing complaints have not been effective; they generally empower state officials to act, but few do so. It is often difficult, if not impossible, to encourage nursing home residents, even after they complain to advocates, to come forward formally to file suit.”
If residents will not or cannot speak up for themselves, who will speak up for them? In most cases, the only other people who know what is going on in nursing homes and are in a position to do anything about it are the facilities’ employees. They are on site day in and day out. They observe what happens when visiting hours are over and outsiders have left the premises. They see what the inspectors cannot see. Their concern and vigilance are therefore integral to the Nursing Home Care Act’s effectiveness.
I realize that employees have a statutory duty to report the abuse or neglect of nursing home residents. 210 ILCS 45/2 — 107 (West 1996). In practice, however, even the most conscientious employees will be hesitant to step forward if doing so will jeopardize their jobs. That is why the General Assembly has decreed in section 3 — 608 of the Act that retaliation against employees is prohibited.
When the plaintiffs in this case disclosed the horrible truth of Mrs. Windt’s death and cooperated with the official investigation of the case, they had every right to believe that the law would protect them. What they experienced instead was harassment and intimidation. According to their complaint, one of them was fired and the other was forced from her job. This is precisely the sort of thing the Nursing Home Care Act was intended to prevent.
It is no answer to say, as my colleagues do, that the Act “contains numerous mechanisms to encourage the reporting of violations *** and to prevent and punish retaliation against those who make such reports.” 188 Ill. 2d at 464. For an underpaid, overworked employee who has just been fired for doing her duty under the law, the possibility that the employer may eventually have to respond to an administrative complaint or pay a monetary fine is scant consolation. Employees must be allowed redress in the courts for themselves. If they are not, the consequences are easy to foresee. Employees will protect themselves by looking the other way. Abuses.will not be noted. Relatives will not be contacted. Reports will not be filed. Patients will simply be left to suffer and to die.
Being on this court does not confer immunity from age and enfeeblement. All of us may one day find ourselves confined to a nursing home under the care and control of hired caregivers. If that should happen to my colleagues, I only hope that their fate is kinder than the one suffered by Mrs. Windt.
The judgment of the appellate court should be affirmed. I therefore dissent.