Oommen v. Glen Health & Home Mgmt. Inc.

2020 IL App (1st) 190854

179 N.E.3d 936

449 Ill.Dec. 651

Bino OOMMEN, M.D., Plaintiff-Appellant,

v.GLEN HEALTH AND HOME MANAGEMENT INC.; Brentwood North Healthcare and Rehabilitation Centre, Inc.; Sidney Glenner; Joshua Ray; and Philip Thompson, Defendants-Appellees.

No. 1-19-0854

Appellate Court of Illinois, First District, SIXTH DIVISION.

November 20, 2020

Brian J. Spencer, of Spencer Law Offices, P.C., of Chicago, for appellant.

Kevin M. O'Hagan and Elizabeth M. Bartolucci, of O'Hagan Meyer LLC, of Chicago, for appellees.

Neal Gainsberg, of Gainsberg Law, P.C., of Chicago, for amicus curiae Illinois Trial Lawyers Association.

PRESIDING JUSTICE MIKVA delivered the judgment of the court, with opinion.

¶ 1 Dr. Bino Oommen's privileges to practice medicine at defendants' nursing facility were terminated following his cooperation in the investigation of the death of one of the facility's residents. We are asked to decide in this case whether the doctor has legal recourse under the Whistleblower Act (Whistleblower Act or Act) ( 740 ILCS 174/1 et seq. (West 2014)) or has the ability to common law claims for retaliatory discharge against the nursing home, its parent company, and the individuals he claims were responsible for terminating his privileges. The circuit court granted summary judgment in defendants' favor on all counts. For the reasons that follow, we affirm in part and reverse in part.

¶ 2 I. BACKGROUND

¶ 3 Defendants in this case are Brentwood North Healthcare and Rehabilitation Centre, Inc. (Brentwood North)—a nursing and rehabilitation facility located in Riverwoods, Illinois; Brentwood North's administrator, Philip Thompson; Brentwood North's parent company, Glen Health and Home Management Inc. (Glen Health); Glen Health's president, Sidney Glenner; and Glen Health's director of operations, Joshua Ray. The plaintiff, Dr. Oommen, is a physician licensed to practice medicine in the State of Illinois who, prior to July 8, 2015, had privileges to treat patients at Brentwood North. Pursuant to a consulting agreement, Dr. Oommen also served as a corporate medical advisor to Glen Health.

¶ 4 Although defendants object to, and disagree with, many of the purported facts set out in Dr. Oommen's appellate brief, they have elected not to file an opposing statement of facts because, in their view, the issues on appeal present questions of law not directly bearing on the circumstances surrounding the death of Dr. Oommen's patient, the ensuing investigation, or defendants' motivations for terminating the doctor's privileges at Brentwood North. We agree and, for purposes of this opinion, take Dr. Oommen's allegations regarding those matters as true. Because many of the facts recited by Dr. Oommen are also only relevant to his attempts to pierce the corporate veil, a theory we have no need to consider, those facts are omitted here.

¶ 5 Dr. Oommen alleged that one of his patients at Brentwood North, Harry Cavicchioni, was assessed by him as a "high fall risk," a finding that, according to the doctor, should have prompted Brentwood North's employees to create and follow a care plan to minimize that risk. On June 21, 2015, however, Mr. Cavicchioni suffered a fall in the nursing home's common area. Dr. Oommen instructed Brentwood North's staff by text message to "Send [Mr. Cavicchioni] to ER stat for evaluation." He claimed that, "[a]fter an initial delay," the nursing home's staff "eventually" and "reluctantly" transferred Mr. Cavicchioni to a nearby hospital "by a private ambulance and not 911," where Mr. Cavicchioni was diagnosed with an acute subdural hematoma (a blood clot between the surface of the brain and its outer covering). According to Dr. Oommen, following this incident, Mr. Cavicchioni's "quality of life quickly declined[,] and he remained in hospice care until his eventual death on July 6, 2015."

¶ 6 Dr. Oommen further alleged that Brentwood North's administrator, Mr. Thompson, caused the Lake County Coroner's office to be told that Mr. Cavicchioni's "sole diagnosis at death was dementia" and knowingly omitted any information about the patient's fall, even when specifically asked by the deputy coroner about recent falls, fractures, or trauma. Upon learning of this, Dr. Oommen informed the coroner's office that the correct cause of death was "an acute subdural hematoma secondary to a fall."

¶ 7 A subsequent investigation into the matter by the Illinois Department of Public Health (IDPH) resulted in a $25,000 fine against Brentwood North, and the nursing home agreed to pay Mr. Cavicchioni's family $175,000 in exchange for a release of their claims against the facility. Dr. Oommen cooperated with the IDPH's investigation, telling the agency that, in his opinion, the proximate cause of Mr. Cavicchioni's fall and death was the failure of Brentwood North's employees to properly supervise him.

¶ 8 According to Dr. Oommen, on the day after Mr. Cavicchioni's death, Mr. Thompson promised the doctor that " ‘more patients will be coming your way’ " if he agreed to help the nursing home conceal the true cause of Mr. Cavicchioni's death. Dr. Oommen ended that conversation, telling Mr. Thompson that what he proposed was "unethical, immoral, and criminal." In the days that followed, Mr. Thompson confronted Dr. Oommen via text message about what the doctor had told the coroner's office and finally asked the doctor for a meeting. When Dr. Oommen asked what the meeting would concern, Mr. Thompson wrote, "Credentials at Brentwood." Dr. Oommen agreed to meet "with a third party present for legal purposes," prompting the following response from Mr. Thompson:

"This is why we have to part ways. On [August] 10th I am removing your credentialing and all privileges there in [sic ] for brentwood north. I will be sending you a patient list so that you can approach family members and residents to transfer to a facility you are credentialed at. Please [let] me know if there is anyway [sic ] I can assist. After [August] 10th, you will not be permitted to practice here. I wish you well."

¶ 9 Dr. Oommen alleged that Mr. Thompson acted "in concert with" Mr. Glenner and Mr. Ray to terminate his privileges to see patients at Brentwood North and that Mr. Glenner and Mr. Ray also terminated Dr. Oommen from his position as Glen Health's corporate medical advisor. Dr. Oommen brought claims against defendants under the Whistleblower Act and for common law retaliatory discharge.

¶ 10 On August 29, 2018, the circuit court granted defendants' motion to dismiss the complaint, in part, on the basis that Dr. Oommen had failed to state a claim for retaliatory discharge against the individual defendants. The court agreed with defendants that the only proper party to such a claim is a plaintiff's former employer, not the agents who may have acted on the employer's behalf.

¶ 11 The court disposed of Dr. Oommen's remaining claims on March 28, 2019, when it granted defendants' motion for summary judgment. The circuit court dismissed the retaliatory discharge claim against Brentwood North and Glen Health on the basis that Dr. Oommen had failed to make a prima facie case that he was an employee of either entity, which was a necessary component of the claim. The court pointed out that Dr. Oommen had "acknowledge[d] that he signed a contract characteristic of an independent contractor" and rejected the doctor's argument that he was a de facto employee under the multifactor analysis that looks beyond such labeling by the parties. The court found no evidence that defendants had either reserved the right to control or actually controlled the manner in which Dr. Oommen practiced medicine. In the court's view, Dr. Oommen's arguments—that "defendants tried repeatedly, and generally unsuccessfully, to influence his treatment decisions" and that they "sometimes ignored his decisions or orders and went around him to accomplish their objectives"—in fact demonstrated "the opposite of control."

¶ 12 The circuit court also concluded that Dr. Oommen lacked standing to bring claims under the Whistleblower Act. For the same reasons that he was not an employee for purposes of a retaliatory discharge claim, he was not an "employee" under the Act, to the extent the Act defines an employee as "any individual who is employed on a full-time, part-time, or contractual basis by an employer." 740 ILCS 174/5 (West 2014). As the court acknowledged, the statutory definition was expanded in 2011 to also include licensed physicians who practice medicine in facilities "funded, in whole or in part, by the State" (Pub. Act 96-1253 (eff. Jan. 1, 2011) (amending 740 ILCS 174/5 )). However, the court agreed with defendants that neither Brentwood North nor Glen Health received state funding within the meaning of the Act. In so ruling, the court was bound to follow Larsen v. Provena Hospitals , 2015 IL App (4th) 140255, ¶ 60, 389 Ill.Dec. 888, 27 N.E.3d 1033, in which another district of this court concluded that Medicaid payments—which Brentwood North does receive—are mere payments for services and not "funding" designed to advance a specific project in the public interest.

¶ 13 As an additional ground for rejecting Dr. Oommen's retaliatory discharge claim, the court found that the doctor had not been "discharged" by the termination of his medical staff and admitting privileges, as neither of those conferred employment.

¶ 14 Dr. Oommen now appeals.

¶ 15 II. JURISDICTION

¶ 16 The circuit court's order granting defendants' motion for summary judgment on March 28, 2019, fully and finally resolved all remaining claims in this matter. On April 23, 2019, plaintiff filed a timely notice of appeal from that order and from the court's earlier interlocutory ruling on defendant's motion for a partial dismissal. We have jurisdiction over this matter pursuant to Illinois Supreme Court Rules 301 (eff. Feb. 1, 1994) and 303 (eff. July 1, 2017), governing appeals from final judgments by the circuit court in civil cases.

¶ 17 III. ANA...