Filed 11/21/08              NO. 4-08-0149

                      IN THE APPELLATE COURT

                             OF ILLINOIS

                           FOURTH DISTRICT

L. ROYCE LARSEN, M.D.,                 )   Appeal from
          Plaintiff-Appellant,         )   Circuit Court of
          v.                           )   Vermilion County
THE CARLE FOUNDATION, d/b/a CARLE      )   No. 06L1
FOUNDATION HOSPITAL, THE CARLE         )
SURGICENTER-DANVILLE, and THE CARLE    )   Honorable
SURGICENTER-CHAMPAIGN,                 )   Claudia S. Anderson,
          Defendants-Appellees.        )   Judge Presiding.
_________________________________________________________________

           JUSTICE TURNER delivered the opinion of the court:

           In June 2007, plaintiff, L. Royce Larsen, M.D., filed a

second-amended complaint alleging breach of contract against

defendants, Carle Foundation, d/b/a Carle Foundation Hospital,

Carle Surgicenter-Danville, and Carle Surgicenter-Champaign.       In

January 2008, plaintiff filed a motion for partial summary

judgment, which the trial court denied.      At trial, the court

granted defendants' motion for a "directed verdict," more prop-

erly denominated a directed judgment.

           On appeal, plaintiff argues the trial court erred in

(1) denying his motion for partial summary judgment, (2) granting

defendants' motion for directed judgment, and (3) ignoring his

right to a fair hearing.   We affirm.

                            I. BACKGROUND

           Plaintiff is a physician specializing in general

surgery.   Prior to December 2005, plaintiff was a member in good
standing of defendants' staff and had privileges at the hospital

and surgicenters.    Medical staff privileges were subject to

renewal every two years.    A physician seeking to continue his

privileges was required to submit a renewal application.

Plaintiff's privileges were due to expire on December 3, 2005.

            In June 2007, plaintiff filed a second-amended com-

plaint against defendants, alleging, inter alia, breach of

contract.    Plaintiff claimed he made a timely application for

reappointment to the medical staff and clinical privileges and

supplied all necessary information.     He also claimed defendants

sent a letter to him on or about November 22, 2005, requesting

additional information be submitted by November 28, 2005.

Plaintiff alleged defendants' demand was unauthorized by the

Carle Foundation Hospital medical staff bylaws, rules, and

regulations (bylaws).    Plaintiff claimed he supplied the re-

quested information, albeit after the stated deadline.     Plaintiff

stated his application for reappointment was denied as incomplete

on December 1, 2005, and thus his medical staff membership and

clinical privileges expired without renewal on December 3, 2005.

Since then, plaintiff has been unable to practice medicine and

surgery at defendants' facilities.      Plaintiff claimed defendants'

refusal to renew his privileges constituted an "adverse action,"

of which he received no formal notice, and defendants failed or

refused to afford him a fair hearing as provided by the bylaws.


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            In his breach-of-contract claim, plaintiff alleged

defendants' action in requiring additional information and

denying his application for renewal was a direct and material

breach of the terms and conditions of the bylaws and the Hospital

Licensing Act (Act) (210 ILCS 85/1 through 16 (West 2006)).

Further, plaintiff alleged defendants denied him a fair hearing

and other appeal rights.    Plaintiff claimed he had suffered

damages as a direct and proximate result of defendants' breach of

contract.

            In January 2008, plaintiff filed a motion for partial

summary judgment pursuant to section 2-1005 of the Code of Civil

Procedure (735 ILCS 5/2-1005 (West 2006)), stating there remained

only an issue of law as to whether defendants' actions consti-

tuted a breach of contract and violation of state law.    Plaintiff

claimed the bylaws and the Act conferred upon defendants an

obligation to afford plaintiff a fair hearing when it failed to

grant him a renewal of the staff membership and clinical privi-

leges.   The trial court denied the motion.

            At the bench trial, G. Lynn Palmer testified she worked

for Carle Clinic and managed plaintiff's office.    She had worked

for plaintiff for over 17 years and assisted him in filling out

the biennial renewal application.    She stated the office received

plaintiff's renewal application form and a letter from Carle

Foundation Hospital dated August 1, 2005.     She set the form aside


                                - 3 -
and noted it would normally take her five or six weeks to com-

plete the application.   The letter indicated the application was

to be returned by August 23, 2005.     Palmer did not return the

application by that date, but she considered it a request and not

a deadline.   Although Palmer testified she did not see a memo

from the medical staff coordinator that the application had not

been received and needed to be submitted by October 3, 2005, to

meet the deadlines of the application process, Palmer stated she

complied with that deadline.

          On November 22, 2005, plaintiff received a letter

indicating his application for reappointment to the medical staff

and clinical privileges had been reviewed by the credentials

committee on November 17, 2005.   The letter stated the committee

sought additional information from three facilities at which he

performed surgical cases and asked that the information be

provided no later than November 28, 2005.     Palmer testified she

typed the letters to get the needed information on November 28.

          Plaintiff testified his formal employer is Carle Clinic

and he had been working with the clinic for 20 years.     He never

practiced at Carle Foundation Hospital in Urbana.     Plaintiff

stated that as a surgeon with staff privileges he is required to

renew his privileges through an application process.     Plaintiff

testified he signed his application on August 25, 2005.     He

signed it again when the application was ready to be forwarded on


                               - 4 -
September 28, 2005.    He received a letter from Dr. Napoleon

Knight, the vice president of medical affairs for Carle Founda-

tion Hospital, on November 22, 2005, requesting additional

information by November 28.    Plaintiff responded by letter on

November 28, 2005, noting the difficulty in supplying the re-

quested information given the Thanksgiving holiday (Thursday,

November 24, 2005).    Plaintiff also sent letters to various

health-care facilities to comply with Knight's request.    Plain-

tiff testified to letters sent by various facilities in response

to his request for information.

            On December 1, 2005, plaintiff received a letter from

Dr. Knight, informing him the requested information had not been

received by November 28, 2005, and thus plaintiff's privileges

would expire on December 3, 2005.    The letter indicated plaintiff

would have to make arrangements to reschedule any procedures at

another facility at which he had privileges.    Plaintiff testified

he sought a fair hearing in regard to the denial of his staff

privileges but he did not receive one.

            Following the close of plaintiff's evidence, defense

counsel moved for directed judgment.    The trial court found

plaintiff's evidence failed to establish a prima facie case.       The

court dismissed the second-amended complaint.    This appeal

followed.

                            II. ANALYSIS


                                - 5 -
                          A. Summary Judgment

           Plaintiff argues the trial court erred in denying his

motion for partial summary judgment.       "In general, when a motion

for summary judgment is denied and the case proceeds to trial,

the order denying the motion for summary judgment merges with the

judgment entered and is not appealable."        Labate v. Data Forms,

Inc., 288 Ill. App. 3d 738, 740, 682 N.E.2d 91, 92 (1997).

           In the case sub judice, plaintiff filed a motion for

partial summary judgment, claiming there were no genuine issues

of material fact as to the actions of the parties.       Plaintiff

argued only questions of law remained as to whether defendants'

actions constituted a breach of contract and violation of state

law.   The trial court denied the motion and conducted a bench

trial on plaintiff's second-amended complaint.       Thus, plaintiff's

motion for partial summary judgment merges with the January 2008

directed finding.    Accordingly, we will not address plaintiff's

argument on this issue.

                        B. Directed Judgment

           Plaintiff argues the trial court erred in granting

defendants' motion for directed judgment at the close of plain-

tiff's evidence.    We disagree.

           Section 2-1110 of the Code of Civil Procedure (735 ILCS

5/2-1110 (West 2006)) provides that "[i]n all cases tried without

a jury, defendant may, at the close of plaintiff's case, move for


                                   - 6 -
a finding or judgment in his or her favor."

          "In ruling on this motion, a court must en-

          gage in a two-prong analysis.      [Citation.]

          First, the court must determine, as a matter

          of law, whether the plaintiff has presented a

          prima facie case.       A plaintiff establishes a

          prima facie case by proffering at least 'some

          evidence on every element essential to [the

          plaintiff's underlying] cause of action.'

          [Citation.]    If the plaintiff has failed to

          meet this burden, the court should grant the

          motion and enter judgment in the defendant's

          favor.    [Citation.]    Because a determination

          that a plaintiff has failed to present a

          prima facie case is a question of law, the

          circuit court's ruling is reviewed de novo on

          appeal.    [Citations.]

               If, however, the circuit court deter-

          mines that the plaintiff has presented a

          prima facie case, the court then moves to the

          second prong of the inquiry.      In its role as

          the finder of fact, the court must consider

          the totality of the evidence presented, in-

          cluding any evidence which is favorable to


                                   - 7 -
          the defendant.   ***    After weighing the qual-

          ity of all of the evidence, both that pre-

          sented by the plaintiff and that presented by

          the defendant, the court should determine,

          applying the standard of proof required for

          the underlying cause, whether sufficient

          evidence remains to establish the plaintiff's

          prima facie case.      If the circuit court finds

          that sufficient evidence has been presented

          to establish the plaintiff's prima facie

          case, the court should deny the defendant's

          motion and proceed with the trial.        [Cita-

          tion.]   If, however, the court determines

          that the evidence warrants a finding in favor

          of the defendant, it should grant the defen-

          dant's motion and enter a judgment dismissing

          the action.   [Citation.]       A reviewing court

          will not reverse the circuit court's ruling

          on appeal unless it is contrary to the mani-

          fest weight of the evidence."        People ex rel.

          Sherman v. Cryns, 203 Ill. 2d 264, 275-76,

          786 N.E.2d 139, 148-49 (2003).

          In this case, defense counsel moved for a directed

finding after the close of plaintiff's case.        The trial court


                                  - 8 -
found plaintiff failed to present a prima facie case and dis-

missed the action.   As this presents a question of law, we review

the trial court's determination de novo.

           "To succeed on a claim for breach of contract, a

plaintiff must plead and prove the existence of a contract, the

performance of its conditions by the plaintiff, a breach by the

defendant, and damages as a result of the breach."    Kopley Group

V., L.P. v. Sheridan Edgewater Properties, Ltd., 376 Ill. App. 3d

1006, 1014, 876 N.E.2d 218, 226 (2007).    In this case, the trial

court found the parties had a quasi-contract under the bylaws.

See also Lo v. Provena Covenant Medical Center, 356 Ill. App. 3d

538, 542, 826 N.E.2d 592, 598 (2005) (finding the medical-staff

bylaws created a contract between the doctor and the medical

center).   Plaintiff claims the trial court erred in finding he

failed to perform certain conditions when he did not return the

renewal application by the date set by defendants.

           The only witnesses to testify at the bench trial were

plaintiff and his office manager.   Plaintiff did not call wit-

nesses who could testify to the renewal application or creden-

tialing process in a general sense or in reference to plaintiff's

situation.   Plaintiff's evidence indicated defendants sent the

renewal application two months late, as the medical staff office

was required to notify the applicant of when his privileges would

expire six months prior to the expiration date.   Here, plain-


                               - 9 -
tiff's privileges expired on December 3, 2005.   Thus, defendants

were required to notify him and send an application packet on or

around June 3, 2005.   Palmer stated she received plaintiff's

renewal application form on or around August 1, 2005.    Although

the notification was late, plaintiff presented no evidence

indicating he could then fill out and return the application at

the time of his choosing.   Instead, the bylaws plainly indicated

an applicant must complete his reappointment application on time

or risk an automatic denial and expiration of privileges at the

end of the term.

           The application letter indicated it must be returned by

August 23, 2005.   Plaintiff argues the hospital bylaws and

policies did not allow for the unilateral imposition of "this

arbitrary early return date."    Plaintiff, however, presented no

evidence indicating how the bylaws and policies impacted the

timing of his return of the application.   Moreover, it appears

defendants informed plaintiff he could still submit his applica-

tion for renewal by October 3, 2005, thereby allowing him more

time.   Without authority to support his position, plaintiff

simply contends defendants could not impose a deadline, notwith-

standing defendants' need to verify the application materials and

make a decision on renewal prior to the expiration date.

           Plaintiff indicated he signed the application on

September 28, 2005, when it was ready to be forwarded.   On


                                - 10 -
November 22, 2005, plaintiff received a letter from Dr. Knight

requesting additional information by November 28.    Plaintiff

argues nothing in the bylaws or the Act granted defendants the

authority to request additional information after the application

had been deemed complete.   However, plaintiff did not present

evidence as to the stage of the application process at the time

of the request for additional information, and plaintiff cannot

now put forth evidence on appeal when he failed to do so at

trial.    Further, that a health-care entity might see the need to

request additional information prior to renewing a staff member's

credentials is a matter of common sense.    See also 410 ILCS

517/15(i) (West 2006) (indicating nothing in the Health Care

Professional Credentials Data Collection Act restricts a hospital

from requesting "additional information necessary for creden-

tialing or recredentialing").    Defendants' request for more

information on surgical outcomes and any disciplinary proceedings

against plaintiff can neither be viewed as out of the ordinary

nor, without evidence to the contrary, as a "spurious" attempt by

defendants to spite plaintiff or frustrate the renewal process.

           Plaintiff also argues defendants acted in bad faith

when they requested additional information the day before Thanks-

giving.   Plaintiff's argument of bad faith is pure speculation.

Moreover, plaintiff received the request for additional informa-

tion on November 22 with the information to be furnished by


                                - 11 -
November 28.    Instead of giving immediate attention to the

matter, plaintiff waited until November 28 to send out letters to

the facilities.    One of the facilities replied the same day,

indicating a quick response was not impossible.    Further, Dr.

Knight's December 1 letter noted the medical executive committee

gave plaintiff an extension of time until November 30, 2005, to

provide the requested information, but plaintiff failed to do so

by that time.    Based on the foregoing, we find plaintiff's

evidence failed to establish he performed the conditions under

the bylaws to satisfy his claim for breach of contract.

                           C. Fair Hearing

          Plaintiff argues the trial court ignored his right to a

fair hearing where his privileges were not renewed.    Section

10.4(b)(2)(C) of the Act provides a medical staff member has the

right "to request a fair hearing" as to an adverse decision

before a hearing panel.    210 ILCS 85/10.4(b)(2)(C) (West 2006).

An adverse decision is defined as "a decision reducing, restrict-

ing, suspending, revoking, denying, or not renewing medical staff

membership or clinical privileges."     210 ILCS 85/10.4(b)(4) (West

2006).

          In this case, plaintiff failed to present evidence that

he supplied a completed application and the necessary information

requested by defendants prior to the date his privileges expired.

Further, plaintiff failed to present evidence that defendants


                               - 12 -
issued an adverse decision here.      Instead, the evidence indicated

plaintiff's privileges simply expired because of his own doing.

As defendants did not issue an adverse decision, plaintiff was

not entitled to a hearing.

                           III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.

            Affirmed.

            STEIGMANN, J., concurs.

            COOK, J., dissents.




                                  - 13 -
            JUSTICE COOK, dissenting:

            I respectfully dissent.   I would reverse and remand for

a new trial.

            Granting a directed verdict in a jury trial is an

extraordinary step.    A motion for directed verdict in a jury

trial should only be granted when "all of the evidence, when

viewed in its aspect most favorable to the opponent, so over-

whelmingly favors [the] movant that no contrary verdict based on

that evidence could ever stand."      Pedrick v. Peoria & Eastern

R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14 (1967).       A

court should be very reluctant to take a case away from a jury

and substitute its own view of the facts.

            In a bench trial, however, the court does not take the

case away from the jury when it enters a directed judgment (735

ILCS 5/2-1110 (West 2006)).    The court is the trier of fact in a

bench trial.    In a bench trial, a directed judgment at the close

of all the evidence is no different from a decision on the

evidence.    A court conducting a bench trial also has the power to

enter a directed judgment in favor of the defendant at the close

of the plaintiff’s evidence.    735 ILCS 5/2-1110 (West 2006).

There are limitations, however, on that power.     As with jury

cases, the essential question is whether the plaintiff has

established a prima facie case, i.e., whether he has presented

some evidence on every element essential to his cause of action.


                               - 14 -
If he has not, the trial court, in nonjury cases as in jury

cases, may enter a directed judgment in the defendant’s favor.

Kokinis v. Kotrich, 81 Ill. 2d 151, 154-55, 407 N.E.2d 43, 45

(1980).

          There is a further step in a nonjury case.      In a bench

trial, even if the plaintiff has presented some evidence on every

element essential to his cause of action, the trial court may go

on to weigh the plaintiff’s evidence, including any evidence

favorable to the defendant.

          "This weighing process may result in the

          negation of some of the evidence necessary

          to the plaintiff’s prima facie case, in which

          event the court should grant the defendant’s

          motion and enter judgment in his favor.    On

          the other hand, if sufficient evidence neces-

          sary to establish the plaintiff’s prima facie

          case remains following the weighing process,

          the court should deny the defendant’s motion

          and proceed as if the motion had not been

          made."   Kokinis, 81 Ill. 2d at 155, 407

          N.E.2d at 45.

That weighing process, however, may not simply assume that the

defendant would present evidence in his case that would negate

the evidence presented by the plaintiff and the reasonable


                              - 15 -
inferences to be drawn therefrom.

          Plaintiff established a prima facie case here.     He

presented some evidence on every element essential to his cause

of action.   Plaintiff presented evidence (1) there was a con-

tract, (2) the practice under the contract was not to insist on

strict compliance with date requirements, (3) he submitted his

application within the time limits, (4) defendants asked for

additional information and arbitrarily imposed a deadline not

provided by the contract, (5) the information was eventually

supplied, and (6) the procedure employed by defendants allowed

defendants to terminate plaintiff’s privileges by a technicality,

thereby depriving plaintiff of the hearing to which he was

entitled under the contract.   Defendants has presented no evi-

dence to negate plaintiff’s evidence.

          The defense argument that some of the evidence estab-

lishing plaintiff’s case has been negated incorrectly rests on

evidence not presented, which the defense argues plaintiff should

have presented:

          "The Plaintiff did not present any witness

          from the Medical Staff Office, the Credentials

          Committee[,] or anyone affiliated with Carle

          Foundation Hospital who was involved in the

          application process for medical staff member-

          ship and hospital privileges.   No evidence


                               - 16 -
          was presented on how the renewal application

          would be processed or what was involved in

          any decision making, whether in general or

          specifically to these facts."

          The argument that plaintiff must call defendants'

witnesses (who will then be recalled by defendants) does not

promote judicial economy.   The fact that the whole story has not

been told does not entitle defendant to a directed judgment.    All

plaintiff had to do was establish a prima facie case.     The fact

that additional evidence might eventually be presented does not

prevent the establishment of a prima facie case.    The majority

asserts plaintiff’s argument that defendants acted in bad faith

when they requested additional information the day before

Thanksgiving is "pure speculation."    Slip op. at 11.   Plaintiff,

however, has presented circumstantial evidence suggesting bad

faith.   Defendants have not presented any witness who would deny

that motive.   The trial court should have heard all the evidence

before making its ruling.




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