Lo v. Provena Covenant Medical Center

NO. 4-03-0175

IN THEAPPELLATE

COURT

OF ILLINOIS

FOURTH

DISTRICT

ADOLF

LO, M.D.,
Plaintiff-Appellee,
v.
PROVENA
COVENANT
Corporation,

MEDICAL

CEI_TzR, a

Defendant-Appellant.

ORDER

from
Appeal
Circuit
of
Court
ChampaignCounty
02L275
No.

Honorable
Michael
Judge

Q. Jones,
Presiding.

Plaintiff,

Adolf

Lo,

is a physician

and a member

of the

medical

staff

of defendant,

Provena

Covenant

Medical

Center,

a

licensed

hospital.

Defendant

summarily

suspended

plaintiff’s

clinical

privilege

to perform

open-heart

surgery,

allegedly

because

an independent

peer

review

had identified

problems

in his

open-heart

surgeries

and he had expressed

an intention

to perform

more

such

surgeries

without

the precautionary

measure

on which

defendant

had insisted:

direct

supervision

by another

cardiac

surgeon.

Plaintiff

sued

defendant

for breach

of contract,

and

the trial

court

entered

an order

temporarily

restraining

defen-

dant

from

suspending

any of plaintiff’s

clinical

privileges.

Defendant

appeals

on three

grounds:

p
(1) defendant’s

decision

to summarily

suspend

plaintiff’s

clinical

privilege

violated

no bylaw

and,

therefore,

the trial

court

lacked

author-

ity to review

the decision;

(2) under

federal

and state

law and

defendant’s

bylaws,

defendant

had ultimate

authority

over

its

medical

staff,

including

the authority,

on its own

initiative,

to

suspend

clinical

privileges

of a physician

who posed

an imminent

risk

of harm

to patients;

and

(3) plaintiff

failed

to establish

the requisites

for a temporary

restraining

order.

Because

the

summary

suspension

violated

no bylaw,

we reverse

the trial

court’s

judgment.

I. BACKGROUND

Defendant’s

owner,

Provena

Hospitals,

has adopted

the

“Bylaws

of Provena

Covenant

Medical

Center

Local

Governing

Board[,]

Urbana,

Illinois”

(hospital

board’s

bylaws),

which

provide

as follows:

“Section

1.1 – Authorization.

The board

of directors

of PROVENA

HOSPITALS

has

authorized

the establishment

of a Local

Governing

Board

(‘Hospital

Board’)

to have

such

authority

and responsibilities

with

respect

to the governance

of the day to day

business

and

affairs

of Provena

Covenant

Medical

Center

(‘Hospital’)

as are set forth

in these

bylaws

and as the PROVENA

HOSPITALS

Board

may from

time

to time delegate.

***

***

Section

4.1 – Deleqated

Authority.

The

Hospital

Board

has been

delegated

authority

and responsibility

by the PROVENA

HOSPITALS

Board,

for the following

functions

***:

(h) To serve as the official

governance

– 2

mechanism

of the Hospital

to its Medical

staff

and to act on recommendations

from

the

Hospital’s

Medical

Staff,

to include

but

not

limited

to *** clinical

privileges

***.

(i) To maintain

a liaison

with

the Hos-

pital’s

Medical

Staff

by including

the presi-

dent

of the Medical

Staff

as an ex-officio

director

of the Hospital

Board

in order

to

promote

favorable

working

relationships

and

exchange

information

for the improvement

of

patient

care.

Section

8.1 – Medical/Dental

Staff

Re-

sponsibilities.

The Hospital

Board

shall,

in

the exercise

of its discretion,

delegate

to

the Medical/Dental

Staff

the responsibility

for providing

appropriate

professional

care

to all patients

of the Hospital,

as well

as

the authority

to carry

out the designated

responsibilities.

The Medical/Dental

Staff

of the Hospital

shall

make

recommendations

to the Hospital

Board

concerning

all matters

set

forth

in the

Medical/Dental

Staff

bylaws

and all addi-

tional

matters

referred

to it by the Hospital

Board.

Section

8.2 – Medical/Dental

Staff

By-

– 3 –

laws.

There shall be bylaws

*** for the

Medical/Dental

Staff

setting

forth

its orga-

nization

and governance.

Proposed

bylaws

***

may be recommended

by the Medical/Dental

Staff,

which

shall

only become

effective

upon

the adoption

thereof

by the Hospital

Board.

Section

8.3 – Quality

of Care Monitor-

inq.

The Hospital

Board

shall

require

the

Medical/Dental

Staff

to implement

activities

and mechanisms

for monitoring

and evaluating

the quality

of patient

care,

for identifying

opportunities

to improve

patient

care,

and

for identifying

and resolving

problems

or

deficiencies,

and shall

regularly

report

to

the Hospital

Board

on these

matters.

Section

8.5 – Deleqated

Powers.

***

In

all applicable

matters,

this Article

is sub-

ject

to the policies

of PROVENA

HOSPITALS,

including,

but

not limited

to, ensuring

com-

pliance

with

State

of Illinois

license

re-

quirements[]

[and] Joint

Commission

on Ac-

creditation

of Health

Care

Organizations

***

. U

Pursuant

to section

8.2 of the hospital

board’s

bylaws,

the medical

staff

recommended

bylaws,

which

the hospital

board

adopted.

The medical

staff’s

bylaws

provide:

— 4

—

”lilt

is recognized

that

the medical

staff

is responsible

for the quality

of medi-

cal care

and must

accept

and discharge

this

responsibility,

subject

to the ultimate

au-

thority

of the medical

center

board

of direc-

tors

***.

***

ARTICLE

3.

PURPOSES

The purposes

of this organization

[(the

medical

staff)]

are:

3.3

to serve

as the primary

means

for ac-

countability

to the

[defendant’s]

Board

of

Directors

for the appropriateness

of the

professional

performance

*** of its members

*** and to strive

towards

the continual

im-

provement

of the quality

and efficiency

of

patient

care

delivered

in the Medical

Center

***.

3.4

to provide

a means

through

which

the

Medical

Staff

may participate

in the

policymaking

and planning

processes

of the

Medical

Center

***.

***

ARTICLE

8.

CORRECTIVE

ACTION

8.1

Procedure

8.1.1

Any person

may provide

information

to

the medical

staff

about

the conduct,

perfor-

mance,

or competence

of its members.

When-

ever

reliable

information

indicates

that

the

activity

or professional

conduct

of any mem-

ber

of the Medical

Staff

is considered

to be

lower

than

the standards

of the Medical

Staff,

detrimental

to public

safety

or dis-

ruptive

to the delivery

of quality

patient

care,

corrective

action

against

such practi-

tioner

may

be requested

by any officer

of the

Medical

Staff,

by the chair

of any clinical

department,

by the chair

of any standing

committee

of the Medical

Staff,

by the Chief

Executive

Officer,

or by the Board

of Direc-

tors.

All

requests

for corrective

action

shall

be made

to the Executive

Committee

in

writing,

and

shall

be supported

by reference

to the

specific

activities

or conduct

which

constitute

the grounds

for the request.

8.2

Summary

Suspension

8.2.1

Whenever

action

must

be taken

immedi-

ately

to prevent

imminent

danger

to an indi-

vidual,

the chair

of a department,

the Presi-

dent

of the Medical

Staff,

an officer

of the

– 6 –

Medical

Staff,

or the Chief

Executive

Officer

upon

the recommendation

of any one of those

aforementioned,

is authorized

to summarily

suspend

the Medical

Staff

membership

status

or all,

or any portion,

of the clinical

priv-

ileges

of a practitioner.

***

8.2.2

A practitioner

whose

clinical

privi-

leges

have

been

summarily

suspended

shall

be

entitled

to the procedural

rights

set forth

in Article

9 of these

Bylaws

***.”

The parties

agree

that

the above-quoted

bylaws

of the

hospital

board

and medical

staff

were

in force

when

defendant

summarily

suspended

plaintiff’s

clinical

privilege

to perform

open-heart

surgery.

Defendant

first

became

concerned

about

its

cardiovascular-surgery

program

when

reviewing

patients’

statis-

tics

from January

2000

to May 2001.

Plaintiff

was one of two

cardiovascular

surgeons

on the medical

staff.

For the

cardiovascular-surgery

program

as a whole

(that is to say,

for

the two

surgeons’

combined

efforts),

the mortality

rate

was 7%,

the

rate of return

to surgery

after

cardiovascular

surgery

was

13.1%,

and the rate

of readmission

into

the hospital

within

30

days

after

cardiovascular

surgery

was

19.3%.

The mortality

rate

of plaintiff’s

patients

was

5.3%

for 2000,

5% for 2001,

and

5%

for 2002.

By contrast,

during

the same period,

the national

rate

of mortality

for open-heart

surgery

was

3% for 2000 and

2.3%

for

2001.

_

Because

of the allegedly

high

rates

of mortality

and

complications,

defendant

contracted

with

a team of independent

consultants

to review

defendant’s

cardiovascular-surgery

program

and report

their

findings.

In its report,

the

“peer-review

team,

identified

problems

with plaintiff’s

cardiovascular

surgeries.

According

to a letter

to plaintiff

from

the chairperson

of

defendant’s

board

of directors,

“the report

raised

grave

concerns

about

quality,

far more

concerns

than

any of us had anticipated.,

Defendant

began

a dialogue

with

plaintiff

to come

up

with

mutually

acceptable

remedial

measures.

(Plaintiff

disputed

the validity

and significance

of the

statistics

or that

there

was

any problem

with

his cardiovascular

surgeries.)

Defendant

asked

plaintiff

to come

up with

an action

plan,

and plaintiff

delayed

doing

so.

For several

months,

the parties

wrangled

over

an

“action

plan.”

Finally,

plaintiff

consented

to perform

cardio-

vascular

surgery

only

under

the direct

supervision

of either

of

two named

cardiac

surgeons

affiliated

with

Carle

Clinic.

He

thereafter

performed

some cardiovascular

surgeries

under

supervi-

sion.

Later,

he withdrew

his

consent

to supervision,

because

he

thought

defendant

was

imposing

“inappropriate

and stringent

requirements”

on the cardiac

surgeon

supervising

his surgeries,

namely,

that

the supervisor

must

see

the patient

before

surgery,

remain

throughout

surgery,

and see the patient

after

surgery.

Plaintiff

notified

defendant

that

he had

scheduled

an open-heart

surgery

and

would

perform

it without

supervision.

Alarmed

by that

announcement,

defendant’s

president

and

chief

executive

officer,

Diane

Friedman,

sought

a recommendation

– 8 –

from

persons

on the medical

staff

that plaintiff’s

clinical

privilege

to perform

open-heart

surgery

should

be summarily

suspended

pursuant

to section

8.2.1

of the medical

staff’s

bylaws.

She

spoke

with

the president

of the medical

staff,

an

officer

of the medical

staff,

and a department

chairman.

Fried-

man

states

in an affidavit:

“I was told

by those

individuals

that

either

they

did not want

to get

involved

in

litigation

themselves

or,

in the case

of the

[p]resident

of the

[m]edical

[s]taff,

wanted

legal

advice

in this matter.

He was leaving

*** town

and asked

the

[s]ecretary-

It] reasurer

Of the

[m] edical

Is] taff

to get

involved.

The

Is] ecretary-

It] reasurer

then

obtained

legal

advice

and would

not agree

to

get

involved

***.”

Plaintiff

was

the chairman

of the department

of surgery.

After

Friedman

reached

a dead

end with

the medical

staff,

the

executive

committee

of defendant’s

board

of directors

held

a special

meeting.

In the minutes

of that

meeting,

they

found

that

“a cooperative

effort

is not being

undertaken

by the

medical

staff

so that

the medical

center

may properly

fulfill

its

obligations

to its patients”

and

“imminent

danger

to patients

exists

if

[plaintiff]

were

to perform

an open[-]heart

surgery

procedure

not under

the direct

supervision

of another

qualified

cardiac

surgeon.”

Therefore,

the committee

authorized

Friedman

to summarily

suspend

plaintiff’s

clinical

privilege

to perform

_

open-heart

surgery

if plaintiff

persisted

in his

rejection

of

supervision.

Citing

section

8.Z.1 of the medical

staff’s

bylaws

and the executive

committee’s

resolution,

Friedman

notified

plaintiff,

by letter,

that

she was summarily

suspending

his

clinical

privilege

to perform

open-heart

surgery.

She advised

him of his right

to a hearing

under

section

8.2.2

and article

9

of the medical

staff’s

bylaws.

Plaintiff

brought

this action

against

defendant,

alleging

that

the

summary

suspension

violated

the bylaws,

under

which

defendant

could

summarily

suspend

clinical

privileges

only

upon

the recommendation

of a member

of the medical

staff.

The

trial

court

entered

an order

.temporarily

restrain[ing]

[defen-

dant]

from

suspending

the medical

staff

membership

of all or any

portion

of the clinical

privileges

of plaintiff

until

such

time

as defendant

complies

with

section

8.2.1

of the medical

staff

bylaws.”

This

appeal

followed.

II. ANALYSIS

A. Standards

of Review

This

appeal

requires

us to apply

three

standards

of

review.

We will

ask whether

the temporary

restraining

order

was

an abuse

of discretion.

Ron

Smith

Truckinq,

Inc. v. Jackson,

196

Ill. App.

3d 59,

63, 552 N.E.2d

1271,

1275

(1990).

When

review-

ing the factual

findings

on which

the trial

court

based

its

temporary

restraining

order,

we will

ask whether

they

are against

the manifest

weight

of the evidence.

Ron Smith

Truckinu,

196

Ill. App.

3d at 63, 552 N.E.2d

at 1275.

Insomuch

as we must

– i0

interpret

bylaws,

regulations,

and statutes,

we will

interpret

them

de novo.

C.J.v.

Department

of Human

Services,

331 Ill.

App.

3d 871,

879,

771 N.E.2d

539, 547

(2002);

Butler

v. USA

V011evball,

285 Ill. App.

3d 578,

582, 673 N.E.2d

1063,

1066

(1996);

_.

Hanna,

332 Ill. App.

3d 527,

530,

773 N.E.2d

178,

180

(2002).

B. Violation

of a Bylaw

Courts

are

ill-qualified

to run a hospital,

but

they

can read

and

interpret

bylaws.

Therefore,

when

a physician

sues

over

the

suspension

of a clinical

privilege,

the court

will

ask

only

one question:

did

the suspension

violate

any bylaw?

Adkins

v. Sarah

Bush

Lincoln

Health

Center,

129 Ill.

2d 497,

506-507,

544 N.E.2d

733,

738

(1989).

If the suspension

violated

no bylaw,

the

court

will

defer

to the superior

qualifications

of the

hospital

officials

who made

the decision.

Adkins,

129 Ill.

2d at

507,

544 N.E.2d

at 738.

(Of course,

if a court

has

authority

to

review

the

suspension

of a clinical

privilege

for compliance

with

bylaws,

the mere

denomination

of the clinical

privilege

as a

,privilege”

rather

than

a .right”

does

not mean

that plaintiff

lacks

a remedy

for improper

suspension

of the privilege.)

Plaintiff

contended,

and the trial

court

agreed,

that

because

no one on the medical

staff

had recommended

the summary

suspension

of plaintiff’s

clinical

privilege

to perform

open-

heart

surgery,

defendant’s

imposition

of the suspension

violated

section

8.2.1

of the medical

staff’s

bylaws.

That

section

provides

that

when

necessary

to “prevent

imminent

danger

to an

individual,”

the chief

executive

officer

has

the authority

to

– ii

summarily

suspend

clinical

privileges

“uPon

the recommendation

of” _ department

chair,

the president

of the medical

staff,

or an

officer

of the medical

staff.

(Emphasis

added.)

Defendant

counters

that

to accept

plaintiff’s

argument,

one would

have

to regard

section

8.2.1

with

tunnel

vision,

ignoring

other

provisions

of the bylaws

as well

as federal

and

state

law.

The medical

staff’s

bylaws

state,

for example,

that

the medical

staff

is ,subject

to the ultimate

authority

of the

medical

center

board

of directors.”

Further,

according

to the

medical

staff’s

bylaws,

the medical

staff

is to ,,serve as the

primary

means

of accountability

to the

[b]oard

of

[d]irectors

for

the appropriateness

of the professional

performance

*** of its

members. “

Under

the hospital

board’s

bylaws,

the medical

staff

is

• subject

to the ultimate

authority”

of the hospital

board,

which

has the duty

to “assure

that

there

are *** practices

which

comply

with

the requirements

for *** quality

improvement,

particularly

emphasizing

the assessment

and continuous

improvement

of the

quality

of patient

care.”

The bylaws

echo the requirements

of state

and federal

law.

A hospital

must

have

an .effective

governing

body

legally

responsible

for the

conduct

of the hospital

as an institution.”

42 C.F.R.

§482.12

(2001).

The governing

body

“must

***

[e]nsure

that

the medical

staff

is accountable

to the governing

body

for

the quality

of care

provided

to patients.”

42 C.F.R.

§482.12(a)

(5) (2001);

see 42 C.F.R.

§482.22(b)

(2001);

210

ILCS

85/4.5(b)

(2) (West 2002)

(“a single

medical

staff

accountable

to

12 –

t

the board

of directors”).

“The

[governing]

board

shall

be

responsible

for the maintenance

of standards

of professional

work

in the hospital

and shall

require

that the medical

staff

function

competently.”

77 Ill. Adm.

Code

§250.210(f)

(Conway

Greene

CD-

ROM March

2002).

Defendant

reasons

that

because

the hospital

board

has

a

duty

to maintain

the quality

of medical

care

in the hospital

and

the medical

staff

is accountable

to the hospital

board

for the

quality

of care,

the chief

executive

officer

can summarily

suspend

clinical

privileges

upon

the resolution

of the hospital

hoard,

and not merely

upon

the recommendation

of members

of the

medical

staff,

when

necessary

to protect

patients

from

imminent

harm.

Defendant

finds

authority

for the

summary

suspension

in

section

10.4(b) (2) (C) (i) of the Hospital

Licensing

Act

(210 ILCS

85/i0.4(h)

(2) (C) (i) (West 2002)),

which

provides:

“Nothing

in this

subparagraph

(C) [(cre-

ating

a right

to a hearing

on summary

suspen-

sion)]

limits

a hospital’s

*** right

to sum-

marily

suspend,

without

a prior

hearing,

a

person’s

*** clinical

privileges

if the con-

tinuation

of practice

of a medical

staff

member

constitutes

an immediate

danger

to ***

patients

***.”

We agree

with

defendant’s

interpretation

of that

statute.

Section

10.4(b)

(2) (C) (i) plainly

presupposes

that

the hospital

has

an inherent

right

to summarily

suspend

the clinical

privi-

– 13

leges

of a physician

whose

continued

practice

poses

an immediate

danger

to patients.

That

right

necessarily

flows

from

the ultimate

respon-

sibility

that

federal

and state

law places

on the hospital

board

for the quality

of care.

The governing

body

of a hospital

“must

***

[e]nsure

that

the medical

staff

is accountable

to the govern-

ing body

for the quality

of care provided

to patients.”

(Empha-

sis added.)

42 C.F.R.

§482.12(a)

(5) (2001).

“The

[governing]

board

shall

be responsible

for the maintenance

of standards

of

professional

work

in the hospital

and shall

require

that

the

medical

staff

function

competently.”

(Emphasis

added.)

77 Ill.

Adm.

Code

§250.210(f)

(Conway

Greene

CD-ROM

March

2002).

“Accountability”

would

be an empty

word

without

the

means

of holding

someone

accountable.

“Responsibility”

would

be

an empty

word

without

the means

of fulfilling

that

responsibil-

ity.

If the medical

staff

had the power

to veto

any restrictions

the hospital

would

impose

on a physician’s

defective

practice–if

the hospital

could

stop

substandard

treatment

only

upon

the

medical

staff’s

recommendation

or approval–the

medical

staff

would

effectively

not be .accountable”

to the hospital

for the

quality

of care,

and the hospital

could

not

“require”

the medical

staff

to do anything

to eliminate

an imminent

danger

to patients.

If, without

the medical

staff’s

approval,

a hospital

could

not

summarily

suspend

the clinical

privilege

of a physician

whose

patients

have

a mortality

rate

twice

that

of the national

average,

the hospital

could

not do so if the mortality

rate

rose

to i0 times

that

of the national

average.

Until

the medical

– 14 –

staff

saw fit

to act,

the hospital

would

be at the mercy

of the

physician’s

incompetence.

“The hospital

may be liable

for a

physician’s

misconduct

on a resDondeat

superior

theory

when

an

employer-employee

or principal-agent

relationship

is present

or

for the violation

of an independent

duty

owed by the hospital

to

review

and supervise

medical

care

administered

to the patient..

Alford

v. PhiDDS,

169 Ill. App.

3d 845, 858,

523 N.E.2d

563,

571

(1988).

Under

plaintiff’s

interpretation

of the bylaws,

defen-

dant

would

have

to pay

the bill

for a staff

member’s

medical

malpractice

but

would

be powerless

(without

the medical

staff’s

recommendation)

to prevent

the malpractice

in the

first

place.

Defendant

could

only

stand

aside,

making

feeble

noises

of pro-

test,

while

its

“ox got gored.”

If a bylaw,

properly

interpreted,

put

a hospital

in

that untenable

position,

we would

strike

it down

as a violation

of public

policy.

Bylaws

are unenforceable

to the extent

that

they violate

statutes

or regulations.

Garibaldi

v. Applebaum,

301 Ill. App.

3d 849,

858,

704 N.E.2d

698,

705

(1998),

aff’d

in

part

! rev’d

in part

on other

qrounds,

194 Ill.

2d 438,

742

N.E.2d

279

(2000).

Federal

and state

regulations

place

ultimate

responsibility

for the quality

of medical

care

squarely

on the

governing

board’s

shoulders.

42 C.F.R.

§482.12(a)

(5)

(2001);

77

Ill. Adm.

Code

§250.210(f)

(Conway

Greene

CD-ROM

March

2002).

“Hospitals

have

an independent

duty

to provide

for the patient’s

health

and welfare.”

Berlin

v. Sarah

Bush Lincoln

Health

Center,

179 Ill. 2d 1, 19, 688 N.E.2d

106,

114

(1997).

“IT]he

hospital

may owe a duty,

independent

of any relationship

between

phTsician

– 15 –

and patient,

to review

and supervise

the medical

care

adminis-

tered

to a patient.”

(Emphasis

added.)

Gilbert

v. Sycamore

MuniciPal

HosPital,

156 Ill.

2d 511, 518,

622 N.E.2d

788,

792

(1993).

Any bylaw

that

effectively

prevented

the governing

board

from performing

that

duty

would

be void.

Just

as we should

interpret

contracts

in such

a way

that

they do not violate

public

policy

(if the contractual

language

reasonably

allows

such an interpretation)

(West Bend

Mutual

Insurance

Co. v. Mulli_an

Masonry

Co.,

337 Ill. App.

3d

698,

705,

786 N.E.2d

1078,

1084

(2003)),

we should

interpret

section

8.2.1

of the medical

staff’s

bylaws

in such

a way that

it

does

not violate

public

policy.

Section

8.2.1

says

that

the

chief

executive

officer

“is authorized”

to summarily

suspend

a

practitioner’s

clinical

privileges

“upon

the recommendation

of”

the chair

of a department,

the president

of the medical

staff,

or

an officer

of the medical

staff.

On its face,

section

8.2.1

does

not say that

the chief

executive

officer

can impose

the

summary

suspension

only

upon

their

recommendation.

The hospital

itself

has

inherent

authority

to summarily

suspend

clinical

privileges

to prevent

an imminent

danger

to patients.

210 ILCS

85/I0.4(b)

(2) (C) (i)

(West 2002).

To that end,

the

chief

execu-

tive

officer

can

impose

a summary

suspension

on the authority

of

the hospital

board.

By stating

that

the chief

executive

officer

may

suspend

clinical

privileges

upon

the recommendation

of members

of the

medical

staff,

section

8.2.1

merely

acknowledges

that

such

decisions

should

normally

be the result

of a collaboration

– 16

.I

between

the governing

body

and medical

staff.

The Joint

Commis-

sion on Accreditation

of Healthcare

Organizations

(Joint

Commis-

sion)

requires

that

the

,governing

body”

make

decisions

on

clinical

privileges

“based

on medical

staff

recommendations,

in

accordance

with

the bylaws

***.”

Joint

Commission

Lohrmann v. Iredell Mem. Hosp.

Disruptive Physicians

Lohrmann v. Iredell Mem. Hosp., Inc., 620 S.E.2d 258
(N.C. Ct. App. 2005)

The
North Carolina Court of Appeals dismissed a physician’s lawsuit against a hospital
after finding that the hospital had substantially complied with its medical
staff bylaws in suspending the physician’s clinical privileges. The bylaws
required complaints about physicians to be submitted in writing to the Executive
Committee. The complaint about the physician in question had been presented
orally by the Chief Executive Officer, based on the written complaints of two
hospital employees. The court found that the process used by the CEO constituted "substantial
compliance" with the bylaws, and could not form the basis for a breach of
contract claim. Similarly, the fact that the hearing panel described the physician’s
behavior as "disruptive" when that term had not been used in the notice
provided to the physician did not mean that the notice was defective. The court
noted that the notice provided to the physician adequately described the issues
that formed the basis for hearing, regardless of whether they were described
as "disruptive" or some other term.

 

 

Lo v. Provena Covenant Medical Center

Professional Review Action

Lo v. Provena Covenant Med. Ctr.,
2004 WL 162685 (Ill. Jan. 28, 2004)

The Illinois Supreme Court declined to hear an appeal
from a physician where the lower court ruled that a hospital board had the inherent
authority to take action suspending the cardiac surgeon’s clinical privileges,
even if such action could be found to be inconsistent with the hospital’s medical
staff bylaws.

Read summary of Lo v.
Provena Covenant Medical Center, No. 4-03-0175 (Ill. Ct. App. July 31, 2003)

Little v. Highland Hospital of Rochester

Little v. Highland Hospital of Rochester,

Nos. 18, 00-01951 (N.Y. App. Div. Feb. 7, 2001)

In this malpractice action against a New York hospital, New York’s Supreme Court, Appellate
Division held that the trial court properly ordered the hospital to provide
a woman with perinatal database information, as well as a copy of a letter written
by a nurse anesthetist to the Chairman of the hospital’s Anesthesia Department,
regarding the delivery of her son. Finding that the hospital did not establish
that the documents were “generated in connection with a quality assurance
review function” pursuant to statutory provisions in Education Law §6527(3),
the court held that the hospital failed to meet its burden of establishing that
the items in question were confidential and protected from disclosure by the
education statute. Furthermore, because the hospital did not establish that
the items requested by the woman were created in connection with a “malpractice
prevention program” pursuant to Public Health Law §2805-j,
the court held that the hospital failed to meet its burden of establishing that
the statutory provisions for confidentiality and protection from disclosure
of certain records extend to the hospital’s “written plan for…maintaining
the quality of patient care and…preventing…malpractice.”

Lo v. Provena Covenant Medical Center

Bylaws as a Contract

Lo v. Provena Covenant Med. Ctr., No. 4-04-0362 (Ill. App. Ct. March 28, 2005)

A
hospital summarily suspended a physician’s clinical privileges to perform open
heart surgery. The physician challenged the hospital’s action and an Illinois
trail court eventually dismissed the physician’s lawsuit. The physician appealed
the trial court’s decision, claiming that the hospital was in breach of the
contractual relationship that arose as a result of the medical staff bylaws.
The hospital claimed that no such contract existed. However, the Illinois Appellate
Court began its analysis by noting that the medical staff is a voluntary association
that "is not a legal entity separate from
the persons who compose it." The court then found that, although the
bylaws would normally only constitute a contract between the medical staff
and its members, the hospital became a party to the contract when it approved
the bylaws. However, the court went on to find that an Illinois law that
granted immunity to a hospital from suits that arose as a result of an internal
quality control process applied to this hospital. As such, the hospital and
its CEO were immune from damages resulting from the CEO’s alleged breach
of the bylaws in summarily suspending the physician because the CEO acted
to advance quality control and his conduct was not "willful or wanton," as
that term was defined in the statute. Finally, the court ruled that the physician’s
request for an injunction ordering the hospital to lift the restrictions
on certain of his privileges was moot because those privileges had not been
renewed when the physician applied for reappointment.

 

Lloyd Noland Found., Inc. v. City of Fairfield Healthcare Auth. (Summary)

Lloyd Noland Found., Inc. v. City of Fairfield Healthcare Auth., No. 1000889 (Ala. Feb. 22, 2002)

A health care foundation (the Foundation) sold its hospital to a medical system (the System) pursuant to a stock purchase agreement. The agreement between the parties gave the Foundation the right to purchase back 100-120 beds if the Foundation was able to obtain a Certificate of Need (CON) to operate the beds for long-term care patients. The agreement required the System to cooperate with the Foundation in its efforts to obtain a CON. The parties also agreed that the System would lease hospital space to the Foundation, for the purpose of operating its long-term care services, should the Foundation obtain a CON.

The Foundation filed an application for a CON, which was contested by another local health care organization seeking a similar CON for its facility. The two parties to that contest eventually worked out their differences and came to an agreement that would allow both to obtain their desired CONs. Thus, the parties were merely waiting for the court to enter judgment in accordance with their
agreement.

However, during the delay caused by the contest, the System sold the hospital to yet another health care organization (the Organization). That Organization intervened in the Foundation’s CON application, claiming that the Foundation had no standing to seek a CON since it did not own the beds at issue but, rather, only had an option to purchase them. Also, the Organization claimed that it had not assumed the System’s obligation to sell beds to the Foundation.

The circuit court dismissed the Foundation’s application for a CON, on the basis that it no longer owned the beds at issue. The Foundation appealed. The Supreme Court of Alabama held that the CON statute specifically authorizes an individual who has not yet acquired ownership of health care assets to apply for a CON. Therefore, the Foundation did not lack standing to apply for a CON and its application was improperly dismissed. The court held also that the Organization had expressly assumed the obligation of the System to sell back 100-120 beds and to cooperate with the Foundation in its efforts to obtain a CON. Accordingly, the Organization was in breach.

Lo v. Provena Covenant Medical Center

Lo v. Provena Covenant
Medical Center,
No. 4-03-0175 (Ill. Ct. App. July 31, 2003)

A
hospital appealed from a temporary restraining order issued to prevent the summary
suspension of a cardiac surgeon’s clinical privileges by the Executive Committee
of the hospital’s board. The board took this action after the medical staff
leadership refused to act. In reversing the trial court and overruling the TRO,
the appellate court ruled that the board had the inherent authority to take
this action, even if it could be found to be inconsistent with the medical staff
bylaws. On this point, the court stated that if a medical staff bylaw could
be interpreted in a way that would restrict the exercise of the board’s authority,
"we would strike it down as a violation of public policy."

Read summary of Lo v.
Provena Covenant Med. Ctr., 2004 WL 162685 (Ill. Jan. 28, 2004)

Lloyd v. Lawnwood Medical Center

Lloyd v. Lawnwood Medical Center,
No. 99-CA-001180BC (Fla. Cir. Ct. Feb. 16, 2000)

The Board of the defendant
hospital passed an emergency resolution summarily removing all elected Medical
Executive Committee members, department chairs, and committee chairs from their
positions. The Board then appointed new officers. The resolution was a response
to a citation issued by the Agency for Health Care Administration notifying
the hospital that its peer review process was deficient. The Board claimed that
the removal of the officers was necessary to respond to the citation “crisis.”
The court granted the injunction reinstating the elected officers. The court
held that the factual record did not support the hospital’s claim that it was
responding to a crisis and therefore it had no legal justification for removing
the officers in violation of the medical staff bylaws. The court cited the fact
that the hospital had received a satisfactory Joint Commission review the previous
summer. It found that the medical staff’s lack of responsiveness was a long-standing
problem rather than a sudden crisis, which did not justify a violation of the
bylaws.

Lobel v. Maimonides Med. Ctr.

AT-WILL EMPLOYMENT AND PRIVILEGES TERMINATION

Lobel v. Maimonides Med. Ctr.,
2007 N.Y. Slip. Op. 3000 (N.Y. App. Div. Apr. 10, 2007)

The Supreme Court of New York affirmed a lower court’s dismissal of
a physician’s wrongful termination claim, holding that the doctor was an
at-will employee; the hospital established that there was no agreement setting
forth a fixed duration for the doctor’s continued employment.

The doctor established that her 1996 employment contract was extended only
through June 30, 2001. The hospital’s letter extending her hospital privileges
did not constitute an extension of her employment contract. Because the doctor’s
cause of action was based on an allegedly wrongful denial of hospital privileges,
she was limited to injunctive relief, and was barred from maintaining an action
for damages.

The court also affirmed the lower court’s dismissal of her claim for breach
of the implied covenant of good faith and fair dealing, and her claims for
tortious interference.

 

 

Lo v. Provena Covenant Medical Center (Full Text)

NO. 4-04-0362

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

ADOLF LO, M.D.,
Plaintiff-Appellant,
v.
PROVENA COVENANT MEDICAL CENTER, a
Corporation,
Defendant-Appellee.

)
)
)
)
)
)
)
)

Appeal from
Circuit Court of
Champaign County
No. 02L275

Honorable
Michael Q. Jones,
Judge Presiding.

JUSTICE APPLETON delivered the opinion of the court:

Plaintiff, Adolf Lo, M.D., sued defendant, Provena Covenant Medical Center, for
breach of contract. He alleged defendant had violated the medical-staff bylaws
(bylaws) by restricting his clinical privileges without granting him a hearing.

Soon after the filing of the complaint, defendant took a more severe corrective
action, summarily suspending plaintiff’s clinical privilege to perform open-heart
surgery. Plaintiff moved for an order temporarily restraining defendant from
enforcing the suspension. The trial court granted the motion, defendant
appealed, and we reversed the temporary restraining order. Lo v. Provena
Covenant Medical Center, 342 Ill. App. 3d 975, 796 N.E.2d 607 (2003), appeal
denied, 207 Ill. 2d 605, 807 N.E.2d 976 (2004).

On remand, defendant filed a motion to dismiss the complaint with prejudice
pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-
619(a)(9) (West 2002)). Defendant relied on two affirmative grounds for
dismissal: (1) its immunity under section 10.2 of the Hospital Licensing Act (Act)
(210 ILCS 85/10.2 (West 2002)) and (2) our previous decision in this case. The
trial court granted the motion, and plaintiff appeals.

The complaint seeks two kinds of relief: an injunction and damages. The prayer
for an injunction is moot, and section 10.2 of the Act bars an award of damages.
Therefore, we affirm the judgment.

I. BACKGROUND

In his complaint, which he filed on December 3, 2002, plaintiff alleges he is a
licensed physician specializing in cardiovascular surgery. For many years, he
has had the clinical privilege to perform cardiovascular surgery at defendant’s
hospital and its predecessor institutions. On or around September 25, 2002,
defendant allegedly violated the bylaws by “reduc[ing] and restrict[ing] [plaintiff’s]
medical[-]staff privileges without granting him the right to a hearing.” Defendant
thereby damaged him financially and harmed his medical practice and
professional reputation. In conjunction with his prayer for damages, he
demanded a trial by jury. He also prayed for an order “immediately enjoining
[d]efendant *** from continuing to reduce and restrict [his] privileges in violation of
the [b]ylaws.”

On February 17, 2003, plaintiff filed a motion for a temporary restraining order
and preliminary injunction. See 735 ILCS 5/11-101 (West 2002). In his motion, he
alleged that on February 15, 2003, defendant summarily suspended his clinical
privilege to perform open-heart surgery. He attached to his motion a letter he had
received from defendant’s chief executive officer and president. The letter said
the suspension was due to “significant quality concerns *** as reflected in the
November 27, 2001, external [cardiovascular] peer review.” Plaintiff argued that
because neither the chair of a department, the president of the medical staff, nor
an officer of the medical staff had recommended the summary suspension,
defendant lacked the power to impose it under the bylaws. The trial court agreed
with plaintiff and entered an order temporarily restraining defendant from
suspending his clinical privileges “until such time as [defendant] compli[ed] with
[the bylaws].”

We reversed the temporary restraining order, holding that because an
independent peer review had raised concerns about the quality of plaintiff’s
cardiovascular services and the medical staff had failed or refused to make a
recommendation one way or the other, defendant’s board of directors, the entity
ultimately responsible for the quality of care, had the inherent authority to
summarily suspend plaintiff’s clinical privilege in order to prevent an imminent
danger to patients. Lo, 342 Ill. App. 3d at 985, 796 N.E.2d at 615.

On October 22, 2003, on remand, defendant filed its motion to dismiss the
complaint with prejudice pursuant to section 2-619(a)(9). Defendant asserted two
grounds for dismissal: (1) its immunity under section 10.2 of the Act (210 ILCS
85/10.2 (West 2002)) and (2) our statement in Lo, 342 Ill. App. 3d at 987, 796
N.E.2d at 617, that the summary suspension had violated no bylaw. The trial
court granted the motion.

This appeal followed.

II. ANALYSIS

A. Standard of Review

A motion to dismiss under section 2-619(a)(9) raises “affirmative matter avoiding
the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2002).
Rather than negate the essential facts of the cause of action, a section 2-619
motion admits those facts, and we take them to be true along with any
reasonable inferences one could draw in the plaintiff’s favor. In re Estate of
Krevchena, 244 Ill. App. 3d 160, 164, 614 N.E.2d 74, 77 (1993). Thus, we accept
as true the factual allegation that defendant restricted plaintiff’s clinical privileges
without granting him a hearing. A section 2-619 motion also admits the legal
sufficiency of the complaint. Kedzie & 103rd Currency Exchange, Inc. v. Hodge,
156 Ill. 2d 112, 115, 619 N.E.2d 732, 735 (1993). Applying a de novo standard of
review, we ask a question designed to give the plaintiff the benefit of the doubt: is
it clear that the affirmative matters bar any possible recovery premised on the
admitted facts of the complaint? Thornton v. Shah, 333 Ill. App. 3d 1011, 1018-
19, 777 N.E.2d 396, 403 (2002).

B. Request for an Injunction

Defendant argues this appeal is moot. We have subject-matter jurisdiction over
this appeal only if an actual, live controversy still exists between the parties, as
opposed to an abstract or hypothetical controversy that the parties are no longer
in a position to care about. See In re Andrea F., 208 Ill. 2d 148, 156, 802 N.E.2d
782, 787 (2003); In re A Minor, 127 Ill. 2d 247, 255, 537 N.E.2d 292, 295 (1989).
An appeal is moot if an intervening event has made it impossible for us to grant
effectual relief. A Minor, 127 Ill. 2d at 255, 537 N.E.2d at 295.

According to defendant, three events have made this appeal moot. The first
event was plaintiff’s alleged agreement to the restrictions of which he complains.
Defendant confuses the merits of a case with the situation in which a case
becomes moot. Plaintiff alleges in his complaint that on or around September 25,
2002, defendant involuntarily restricted his clinical privileges. Defendant denies
doing so and insists that plaintiff agreed to the restrictions as an alternative to
defendant’s imposing them involuntarily (with a resulting report to the National
Practitioner Data Bank (see 42 U.S.C. §11133(a)(1)(A) (2000))). That sounds to
us like an actual controversy. Instead of pointing to an intervening event (see In
re Marriage of Deem, 328 Ill. App. 3d 453, 455, 766 N.E.2d 661, 662 (2002)),
defendant points to evidence that, in defendant’s view, rebuts an essential fact in
the complaint. Evidence favoring one side of a controversy and disfavoring the
other does not negate the existence of the controversy. If the claim turns out to
be untrue, the proper disposition will be not to dismiss the claim as moot but to
enter a judgment on the merits in defendant’s favor.

The other two events, by contrast, are intervening and factually undisputed. In
February 2003, defendant summarily suspended plaintiff’s privilege to perform
open-heart surgery. Also, in January 2004, after the (suspended) privilege
expired, plaintiff applied for its renewal, and defendant denied the application.
The bylaws required plaintiff to request a hearing before the hearing committee

within 30 days after receiving notification of any adverse decision on his clinical
privileges. Because plaintiff missed the deadlines for requesting hearings on the
summary suspension and the nonrenewal, defendant argues he has “waived” his
right to a hearing on either decision. “There is no point in litigating whether
plaintiff should have a supervising cardiac surgeon,” defendant argues
(supervision of his surgeries was one of the restrictions), “because there will be
no surgery to supervise.”

Plaintiff argues the 30-day period for requesting a hearing never started running
with respect to either the summary suspension or the nonrenewal because each
time defendant made an adverse decision regarding his clinical privileges, the
bylaws required the chief executive officer to serve a notice upon him by certified
mail. The bylaws also prescribed the contents of the notice. After the summary
suspension and also after the nonrenewal, defendant either failed to serve a
notice upon him by certified mail or the notice lacked all the prescribed contents.
Plaintiff argues that until defendant complies with the procedural requirements of
the bylaws with respect to notice, the 30-day clock for requesting a hearing does
not begin to run.

Putting the summary suspension and the nonrenewal in brackets, in a purely
theoretical way, really does not address defendant’s argument. A court cannot
sensibly order defendant to lift the restrictions from a clinical privilege that no
longer exists. If, because of a nonrenewal that plaintiff does not challenge in this
lawsuit, the privilege to perform cardiovascular surgery has vanished altogether,
so have the restrictions of that privilege. “A case on appeal [becomes] moot
where ‘the issues involved in the trial court no longer exist’ ***.” A Minor, 127 Ill.
2d at 255, 537 N.E.2d at 295, quoting La Salle National Bank v. City of Chicago,
3 Ill. 2d 375, 378-79, 121 N.E.2d 486, 488 (1954). The complaint frames the
issues for the court and circumscribes the relief it can award (Health Cost
Controls v. Sevilla, 307 Ill. App. 3d 582, 587, 718 N.E.2d 558, 562 (1999)). In his
complaint, plaintiff challenges only the restrictions of September 2002, not the
summary suspension of February 2003 or the nonrenewal of January 2004. The
complaint requests an order “enjoining *** [defendant] from continuing to reduce
and restrict [plaintiff’s] privileges.” One must understand that prayer, however, in
the context of the complaint: as referring only to the September 2002 restrictions,
not the summary suspension or the nonrenewal, neither of which the complaint
mentions. In the present posture of the pleadings, the prayer for an injunction is
moot.

C. Request for Damages

According to defendant, an injunction is the only permissible remedy for plaintiff’s
cause of action, and because the prayer for an injunction is moot, the case is
moot in its entirety. Defendant denies that the bylaws created a contract between
defendant and plaintiff and, therefore, denies the right to damages for any

violation of the bylaws. We hold that the bylaws did indeed create a contract
between plaintiff and defendant.

Although defendant admits that procedures in bylaws are enforceable by
injunction, defendant does not explain under what legal theory one could enforce
them if not under a theory of contract. The rule of limited judicial review, whereby
we review the reductions of clinical privileges only for procedural compliance with
the bylaws (Knapp v. Palos Community Hospital, 176 Ill. App. 3d 1012, 1018-19,
531 N.E.2d 989, 993 (1988)), presupposes that the bylaws are enforceable under
some recognized theory of the common law. We have held that the constitution
or bylaws of a voluntary association, such as a trade union, create a contract
between the association and its members. Gratz v. Cozart, 13 Ill. App. 2d 515,
517, 142 N.E.2d 833, 834 (1957). Whether bylaws are a contract does not
appear to depend on the type of voluntary association that issued them. See
State of North Dakota ex rel. Langer v. North Central Ass’n of Colleges &
Secondary Schools, 23 F. Supp. 694, 699 (E.D. Ill. 1938) (“churches, lodges[,]
and all other like voluntary associations”); see also Gratz, 13 Ill. App. 2d at 517,
142 N.E.2d at 834. Like a trade union, a medical staff is a voluntary association,
“[a]n unincorporated business organization that is not a legal entity separate from
the persons who compose it” (Black’s Law Dictionary 119 (7th ed. 1999)). Head
v. Lutheran General Hospital, 163 Ill. App. 3d 682, 693, 516 N.E.2d 921, 928
(1987). The First District has held that the bylaws of a medical staff “form part of
the contract between the association and its members.” Head, 163 Ill. App. 3d at
691, 516 N.E.2d at 927.

The bylaws in this case are entitled the “Medical[-]Staff Bylaws.” Plaintiff does
not sue the medical staff; he sues defendant. See Head, 163 Ill. App. 3d at 693,
516 N.E.2d at 928 (“Defendant [hospital] is a private institution, and its medical
staff is a voluntary association”). Considering that bylaws are a contract between
the voluntary association (in this case, the medical staff) and its individual
members (Head, 163 Ill. App. 3d at 691, 516 N.E.2d at 927), how does plaintiff
have a cause of action against defendant (the hospital) for breach of contract?
Through its board of directors, defendant formally adopted the bylaws in October
1996, the same time the medical staff adopted them. Section 18.2 of the bylaws
provides they “are legally binding upon the [m]edical [c]enter.” If, as case law
holds, the bylaws are a contract between plaintiff and the medical staff (see
Head, 163 Ill. App. 3d at 691, 516 N.E.2d at 927), defendant’s approval of the
bylaws cannot transform them into something other than a contract. By approving
the bylaws, defendant became a party to the contract.

If defendant had promised procedures that the law already required, and nothing
more, then, arguably, the preexisting-duty rule would prevent the formation of a
contract between defendant and the medical staff. See White v. Village of
Homewood, 256 Ill. App. 3d 354, 357, 628 N.E.2d 616, 618 (1993); Virmani v.
Presbyterian Health Services Corp., 127 N.C. App. 71, 76, 488 S.E.2d 284, 287-
88 (1997). No law required defendant, however, to grant plaintiff the privilege to

practice medicine in its hospital. Nor did any law require plaintiff to practice there.
Each party conferred a benefit on the other, and their mutual benefit is
consideration. See Virmani, 127 N.C. App. at 76-77, 488 S.E.2d at 288.
Defendant and the association of which plaintiff is a member agreed that certain
disciplinary procedures, many of them mandated by law (210 ILCS 85/10.4(b)(2)
(West 2002); 77 Ill. Adm. Code §250.310(c)(2) (Conway Greene CD-ROM
January 2002)), would govern plaintiff’s employment. Plaintiff seeks to enforce a
procedure that defendant promised. See Maimon v. Sisters of the Third Order of
St. Francis, 120 Ill. App. 3d 1090, 1094, 458 N.E.2d 1317, 1319 (1983).

“The principal legal remedy to enforce a promise is a judgment awarding a sum
of money.” E. Farnsworth, Farnsworth on Contracts §12.2, at 156 (3d ed. 2004).
Defendant invokes the immunity to damages in section 10.2.

In reliance on Szczerbaniuk v. Memorial Hospital for McHenry County, 180 Ill.
App. 3d 706, 536 N.E.2d 138 (1989), plaintiff argues the immunity in section 10.2
is inapplicable because defendant’s chief executive officer, who “addressed” the
restrictions, was “not a protected committee.” In Szczerbaniuk, 180 Ill. App. 3d at
708-09, 536 N.E.2d at 140, a hospital’s chief executive officer terminated the
plaintiff’s radiology service agreement on the ground that he had sexually
harassed hospital employees. It was unclear whether the hospital’s executive
committee had authorized this disciplinary action. Szczerbaniuk, 180 Ill. App. 3d
at 709, 536 N.E.2d at 140. The Second District stated: “Insofar as section 10.2
clearly contemplates action by committees, we are hesitant to apply it to
immunize conduct of an individual acting only pursuant to an informal delegation
of authority by an uninformed committee.” Szczerbaniuk, 180 Ill. App. 3d at 710-
11, 536 N.E.2d at 141. Szczerbaniuk is distinguishable because after its
issuance, the General Assembly amended section 10.2 by adding the words “or
individual,” thereby extending the immunity to acts or omissions of any individual
who has the purpose of internal quality control (Pub. Act 91-448, §5, eff. July 1,
1999 (1999 Ill. Laws 5402, 5402))–a purpose the chief executive officer in this
case apparently had, to judge from the correspondence that both parties cite.

Section 10.2 now provides:

“[N]o hospital *** shall be liable for civil damages as a result of the acts,
omissions, decisions, or any other conduct, except those involving wilful or
wanton misconduct, of *** any *** committee or individual whose purpose,
directly or indirectly, is internal quality control ***, or for the purpose of
professional discipline ***. *** For the purposes of this [s]ection, ‘wilful and
wanton misconduct’ means a course of action that shows actual or deliberate
intention to harm or that, if not intentional, shows an utter indifference to or
conscious disregard for a person’s own safety and the safety of others.”
(Emphasis added.) 210 ILCS 85/10.2 (West 2002).

If we were applying the ordinary definition of “wilful and wanton misconduct”–i.e.,
great carelessness or gross negligence–it would be a question of fact whether
defendant’s alleged conduct met that definition. Plaintiff alleges that defendant
involuntarily restricted his clinical privileges without giving him a chance to be
heard, thereby violating not only the bylaws but also statutory law (see 210 ILCS
85/10.4(b)(2)(C) (West 2002)). Considering the grave implications that
involuntary restrictions could have for plaintiff’s career, a jury could, at a
minimum, find such an omission to be

careless. “Under the facts of [a] case, willful and wanton misconduct may be only
degrees more than ordinary negligence ***.” Ziarko v. Soo Line R.R., 161 Ill. 2d
267, 275, 641 N.E.2d 402, 406 (1994). Locating the “thin line” between
carelessness and great carelessness (Ziarko, 161 Ill. 2d at 275, 641 N.E.2d at
406) would be a job for the trier of fact. Doe v. Calumet City, 161 Ill. 2d 374, 390,
641 N.E.2d 498, 506 (1994).

In this case, however, we are dealing not with the ordinary meaning of “wilful and
wanton misconduct” but with a statutory definition. “In construing statutes the
ordinary, usual[,] and commonly accepted definitions of the words employed
therein are to be taken as the correct definitions of such words, unless the statute
gives special definitions to the contrary ***.” (Emphasis added.) Wahlman v. C.
Becker Milling Co., 279 Ill. 612, 622, 117 N.E. 140, 144 (1917). Plaintiff has
alleged no facts, and has offered no evidence, from which we could reasonably
infer that defendant “actual[ly] or deliberate[ly] inten[ded] to harm” him. See 210
ILCS 85/10.2 (West 2002). His “own safety” was never at issue in this case. See
210 ILCS 85/10.2 (West 2002). Because plaintiff’s cause of action does not fit
within the specialized definition of “wilful and wanton misconduct” in section 10.2,
the statute bars him from recovering damages for defendant’s breach of contract.

A court has discretion to order the specific performance of a contract if “perfect
justice cannot be done at law.” Dixon v. City of Monticello, 223 Ill. App. 3d 549,
561, 585 N.E.2d 609, 618 (1991). If, as it appears, section 10.2 immunizes
defendant from damages for breaching its contract with plaintiff, perfect justice
cannot be done at law, and a court should at least be able to order defendant to
perform the contract. As we have held, however, the prayer for an injunction is
moot.

For the foregoing reasons, we affirm the trial court’s judgment.

III. CONCLUSION

Affirmed.

TURNER and STEIGMANN, JJ., concur.