specially concurring in part and dissenting in
part:
I concur with the majority’s affirming of the dismissal of counts III and IV, but I dissent on the affirming of the dismissal of count I against Christ Hospital.
A private right of action can be implied under a statute if (1) plaintiff is a member of the class for whose benefit the statute was enacted; (2) it is consistent with the underlying purpose of the statute; (3) plaintiff’s injury is one the statute was designed to prevent; and (4) it is necessary to provide an adequate remedy for violations of the statute. Corgan v. Muehling, 143 Ill. 2d 296, 312-13, 574 N.E.2d 602 (1991). When a statute is enacted for the protection of a particular class of individuals, a violation of its terms may result in civil liability even if that remedy is not mentioned in the statute. Corgan, 143 Ill. 2d at 313, citing Heimgaertner v. Benjamin Electric Manufacturing Co., 6 Ill. 2d 152, 155, 128 N.E.2d 691 (1955). It is not necessary to show a specific legislative intent to create a private right of action. Sawyer Realty Group, Inc. v. Jarvis Corp., 89 Ill. 2d 379, 386, 432 N.E.2d 849 (1982). If there is no indication that the remedies available are only those expressed in the statute, then where it is consistent with the statute’s underlying purpose, a private right of action can be implied. Sawyer, 89 Ill. 2d at 386.
The public policy underlying certain statutes demands implication of a private remedy to compensate an aggrieved person who belongs to the class of persons whom the statute was designed to protect. Sawyer, 89 Ill. 2d at 386-87. Consideration of the underlying policy of the statute and the overriding purpose is important in determining whether a private right of action exists. Sawyer, 89 Ill. 2d at 387. Illinois courts have continually demonstrated a willingness to imply a private remedy where there exists a clear need to effectuate the purpose of a statute. Sawyer, 89 Ill. 2d at 389.
I conclude that there is a viable cause of action for a patient who lacks decisional capacity and who has a qualifying condition when health care providers did not comply with the Act’s requirements. Dorothy Ficke was a member of the class for whose benefit the statute was enacted. A private cause of action is consistent with the underlying purpose of the statute, the injury to Dorothy Ficke is one the statute was designed to prevent, and a private cause of action is necessary to provide an adequate remedy for violations of the statute.
Count I against the Hospital alleged that Dorothy Ficke lacked decisional capacity and suffered from a qualifying condition within the meaning of the Act in that she was "lacking in communication of meaningful thought, social interactions and/or awareness of self and her environment.” For such a patient, the health care provider, which is defined as including not only physicians but nurses and hospitals (755 ILCS Ann. 40/10 (West Supp. 1996)), must make a reasonable inquiry as to the availability and authority of a health care agent or, if unavailable, the availability of possible surrogate decision makers. 755 ILCS Ann. 40/25(a) (West 1992).
The Hospital argues that this duty of health care providers is not triggered before the existence of the qualifying condition and the lack of decisional capacity is certified in writing in the patient’s medical record by the attending physician and by at least one other qualified physician. While it is only after these written certifications are made that a surrogate decision maker may consider whether to forgo life-sustaining treatment (755 ILCS Ann. 40/10 (West Supp. 1996)), the hospital need not and should not wait to make the reasonable inquiries until the written certifications are made when the hospital knows or should know that the patient in its care lacks decisional capacity and probably has one of the three qualifying conditions.
Although the attending physician is in charge of a patient’s treatment, the hospital has sufficient knowledge of the condition of its patients to determine whether it is probable that a surrogate decision maker is needed. Nurses monitor the patient’s condition, and physicians and nurses make notes in the patient’s medical record. Hospitals should facilitate the process of surrogate decision making and should not be allowed to sit by and disregard the rights of a patient. The Act requires hospitals to make some effort to initiate the process of surrogate decision making. I would reverse the circuit court order dismissing count I against Christ Hospital.