                                 No. 3–07–0242
______________________________________________________________________________
Filed April 14, 2008
                     IN THE APPELLATE COURT OF ILLINOIS

                                      THIRD DISTRICT

                                          A.D., 2008

ELIZABETH S. BERGLAND,              )     Appeal from the Circuit Court
     Plaintiff-Appellant,           )     for the 14th Judicial Circuit,
                                    )     Rock Island County, Illinois
                                    )
      v.                            )     No. 06–MR–546
                                    )
THE DEPARTMENT OF PUBLIC            )
HEALTH and ROSEWOOD CARE            )     Honorable
CENTER OF MOLINE,                   )     F. Michael Meersman,
      Defendants-Appellees.         )     Judge, Presiding
______________________________________________________________________________

      JUSTICE O’BRIEN delivered the opinion of the court:
______________________________________________________________________________

       Plaintiff Elizabeth Bergland sought administrative review of defendant Illinois Department

of Public Health’s (IDPH) grant of summary judgment in favor of defendant Rosewood Care Center,

which denied Bergland copies of her mother’s health care records. The trial court affirmed IDPH’s

decision, finding that Rosewood’s refusal to provide the records was proper under both the Health

Care Surrogate Act (Surrogate Act) and the Health Insurance Portability and Accountability Act of

1996 (HIPAA). 755 ILCS 40/1 et seq. (West 2004); 42 U.S.C. §1320 et seq. (2000). Bergland

appealed. We reverse the trial court’s affirmance of IDPH’s decision.

                                            FACTS

       Plaintiff Elizabeth Bergland’s mother, Mildred Strutz, was a patient at Rosewood Care

Center in Moline, from September 24, 2004, through November 5, 2004. On December 8, 2004,

Mildred and her husband, Eric, submitted a written request to Rosewood, asking that a copy of
Mildred’s medical records be to sent to their daughter, Bergland. The letter was signed by both

Mildred and Eric but identified Bergland as the sole contact as well as the recipient of the records.

Included in Mildred’s file at Rosewood was a form entitled Health Care Surrogate: Physician

Certification. The document, which was dated October 2004, and signed by two nonidentified

physicians, indicated that two of Mildred’s other daughters were appointed as surrogate decision

makers regarding Mildred’s health care decisions. Mildred’s husband was not identified as a

surrogate. Notes in Mildred’s file at Rosewood state that Eric “appear[ed] to be very confused and

unable to make informed[,] competent decisions” on his wife’s behalf.

       After receiving the request for records, Rosewood’s administrator contacted one of the

identified surrogates, Teri Peschang, and sent her a copy of Bergland’s request for Mildred’s records.

Peschang would not consent to a release of the records to Bergland. The administrator’s notes

indicated Peschang stated, “I don’t know what Susan is up to but it has to be NO good + [sic] I am

not going to be a part of it.” Based on Peschang’s refusal of consent, Rosewood denied Bergland’s

request.

       Bergland thereafter filed a complaint with IDPH, alleging that Rosewood violated the

Nursing Home Care Act (Act) (210 ILCS 45/2-104(d) (West 2004)) by denying Bergland’s request

for Mildred’s records. IDPH investigated the complaint and found insufficient evidence to cite

Rosewood for a violation of the Act. Bergland filed a request for a hearing with an administrative

law judge (ALJ). IDPH responded with two motions for summary judgment and Bergland filed a

cross-motion for summary judgment. Only one of IDPH’s motions appears in the record; Bergland’s

cross-motion does not appear. Similarly, the record contains only one of the transcripts from the

IDPH hearings.


                                                  2
       Following a hearing on IDPH’s summary judgment motion, the ALJ recommended that

IDPH’s motion be granted, finding that there were no issues of material fact, that the Department

properly investigated Bergland’s complaint, and its determinations were not in error. The ALJ

concluded that Rosewood properly relied on the surrogate’s denial of the release of Mildred’s

records and that Rosewood was required to rely on the surrogate’s decision pursuant to Surrogate

Act. The IDPH director adopted and affirmed the ALJ’s determination and issued a final order.

       Sometime during the proceedings before the ALJ, Peschang consented to release of Mildred’s

records to Bergland. Bergland, however, contends that she did not receive all the records. She

petitioned for judicial review. IDPH answered with the IDPH record attached. Arguments were held

before the trial court, which raised sua sponte that HIPAA barred the release of Mildred’s records.

The trial court also found that once Mildred was discharged from Rosewood, the Surrogate Act no

longer applied. Notwithstanding that conclusion, the trial court went on to determine that Rosewood

properly relied on the health care surrogate’s decision when it denied Bergland copies of Mildred’s

records. Bergland appealed.

                                            ANALYSIS

       As a threshold issue, we must determine whether this appeal is moot. According to IDPH,

although Bergland received the requested records pursuant to Peschang’s subsequent consent to

disclosure, the cause is not moot because Bergland’s claim challenges the determination by IDPH

that Rosewood did not violate Mildred’s right to access her records pursuant to the Nursing Home

Care Act when it denied the request for records.

       The existence of an actual controversy is a prerequisite of appellate jurisdiction; a reviewing

court generally will not decide moot issues. Adams v. Bath & Body Works, Inc., 358 Ill. App. 3d


                                                   3
387, 399, 830 N.E.2d 645, 657 (2005). A case on review is moot when the issues in the trial court

no longer exist because subsequent events that occurred after the appeal had been filed make it

impossible for the appellate court to grant effective relief. Whitten v. Whitten, 292 Ill. App. 3d 780,

784, 686 N.E.2d 19, 21-22 (1997). However, a reviewing court may reach the merits of a moot issue

if (1) it is public in nature; (2) it is desirable to provide an authoritative determination to offer

guidance to public officers; and (3) it is likely the question would reappear. Whitten, 292 Ill. App.

3d at 784, 686 N.E.2d at 22.

       Because Peschang ultimately consented to the release of Mildred’s records, this court cannot

order the requested relief, i.e., access to Mildred’s records. However, the dispositive issue before

us is whether the Surrogate Act applies to a discharged nursing home resident. As such, the issue

is public in nature. There is no case law addressing the issue, so it desirable to provide a

determination for future guidance, and it is likely the question will reappear. Accordingly, we review

the case under the public interest exception to the mootness doctrine.

       We turn now to the question of whether IDPH erred in finding that

Rosewood properly relied on the surrogate’s decision to deny

Bergland access to her mother’s medical records. Bergland contends

that IDPH wrongly relied on the Surrogate Act to deny Mildred’s

request for records. According to Bergland, the Surrogate Act does

not apply because Mildred had been discharged from Rosewood at the

time of the request.

       This      issue      is     one     of     statutory        interpretation.                The

fundamental         rule     employed       when      we    construe       a   statute       is    to

ascertain and give effect to the intention of the legislature.

                                                  4
Ficke v. Evangelical Health Systems, 285 Ill. App. 3d 886, 892, 674

N.E.2d 888, 892 (1996).       The words of the statute are the best

indicator of legislative intent.         Ficke, 285 Ill. App. 3d at 892,

674 N.E.2d at 892.    When the language is clear, we do not look to

other tools of interpretation.     Ficke, 285 Ill. App. 3d at 893, 674

N.E.2d at 892.       Our review is de novo. City of Belvidere v.

Illinois State Labor Relations Board, 181 Ill. 2d 191, 205, 692

N.E.2d 295, 302 (1998).

     The Nursing Home Care Act provides that every resident shall

“be permitted to inspect and copy all his clinical and other

records concerning his care and maintenance kept by the facility or

by his physician.”      210 ILCS 45/2-104(d) (West 2004). Federal

regulations also require that a nursing home resident have access

to her records.    42 C.F.R. 483.10(b)(2)(i) (2005).       The Surrogate

Act applies to “patients who lack decisional capacity or who have

a qualifying condition.”      755 ILCS 40/15 (West 2004). A surrogate

is entitled to “have the same right as the patient to receive

medical   information   and    medical    records   and   to   consent   to

disclosure.”      755 ILCS 40/25(e) (West 2004).          A health care

provider may rely on the authority of the surrogate decision maker

as though the decision had been made by a patient with decisional

capacity.      755 ILCS 40/30(a) (West 2004).         The Surrogate Act

requires a health care facility to “maintain any advance directives

proffered by the patient or other authorized person, including a do


                                    5
not resuscitate order, a living will, a declaration for mental

health treatment, or a power of attorney for health care, in the

patient’s medical records for the duration of the patient’s stay.”

755 ILCS 40/15 (West 2004).

      IDPH found that the Surrogate Act applied and that Rosewood

was required to rely on the decision of the surrogate in denying

Bergland’s    request       for    Mildred’s    records.       The   trial   court

intimated that the Surrogate Act did not apply to Mildred because

she had been discharged from Rosewood.                 We agree with the trial

court.     The Surrogate Act requires the health care provider to

maintain a patient’s advance directives for the duration of the

patient’s stay. We recognize that the statutory provision does not

expressly enumerate a surrogate appointment form. However, because

the     Surrogate    Act     generally,        and    the    instant    provision

specifically, applies to patients who lack decisional capacity, it

stands to reason that a surrogate appointment form would be among

those to be included with other pertinent medical and treatment

decision documents in a patient’s file.               It further follows        that

if documents such as a power of attorney for health care must be

maintained    only   for     the    duration    of    the   patient’s   stay,    the

appointment of a surrogate to make various treatment decisions

should similarly be limited. Our interpretation is consistent with

the durational limitations set forth in the Nursing Home Care Act,

which    provides    that    the    nursing    home    is   “relieved   from     any


                                         6
responsibility for the resident’s care, safety or well-being” once

a resident is discharged.        210 ILCS 45/2-111 (West 2004).



       Accordingly, based on our interpretation of the Surrogate Act,

Rosewood was not required to obtain a surrogate’s consent prior to

the release of Mildred’s records.         Had Mildred remained a patient

at Rosewood, the facility’s reliance on the surrogate appointment

and the surrogate’s decision would have been proper.                However,

because Mildred was no longer a patient when the request for

records was made, Rosewood erred in refusing to release Mildred’s

records based on the surrogate’s refusal to consent.                 We are

cognizant that Bergland has since obtained Mildred’s records from

Rosewood.     Nevertheless, and pursuant to the public interest

exception to the mootness doctrine, we hold that once a patient who

lacks decisional capacity is no longer under the care of a health

care    provider,   the   Surrogate   Act    ceases   to   apply    and   the

nominations for health care surrogates are terminated.             Therefore

there was no basis to refuse a patient’s request for records.

       We note with concern that although the Surrogate Act requires

a patient’s physician to opine as to the cause, nature and duration

of the patient’s decisional incapacity, the surrogate certificate

in the instant case fails to do so.            Moreover, the certifying

physician failed to delineate why Mildred’s husband was not chosen

as a surrogate, also contrary to the statutory directive.            Because


                                      7
we have concluded that the surrogacy appointment ceased to apply

upon Mildred’s discharge from Rosewood, we do not examine the

effects, if any, of the inadequacies of the surrogate certificate.

Moreover,    as   determined      by   IDPH      in    response   to   Bergland’s

challenge, the propriety of the surrogate appointment was beyond

the scope of its review and ours as well.                    The Surrogate Act

indicates    that   one    who    wishes       to     challenge   a    surrogate’s

appointment is required to initiate a guardianship proceeding. 755

ILCS 40/25(d) (West 2004). We raise                 the point only to emphasize

that had the statutory mandates been followed by the certifying

physician,   many   of    the    issues       Bergland   raises   regarding   the

sufficiency of the surrogacy certificate would have been avoided.

     Based on our disposition of the above issue, we need not reach

the other issues Bergland raised on appeal.

     For the foregoing reasons, the judgment of the circuit court

of Rock Island County is reversed and the decision of the IDPH is

set aside.

     Reversed.

     SCHMIDT, J., concurs.

     CARTER, J., specially concurring:

     I specially concur with the conclusion reached by the majority

that Rosewood, once Mildred was no longer a patient and was

discharged, could no longer rely on the surrogates’ direction and

decision. Thus, I agree that Rosewood erred in refusing to release


                                          8
Mildred’s records based on the surrogates’ refusal to consent.

     The Health Care Surrogate Act requires a health care facility,

when the patient lacks decisional capacity, to make a reasonable

inquiry as to the availability of a health care agent under the

Powers of Attorney for Health Care Law and, when no agent is

authorized or available, the provider must make a reasonable

inquiry into the availability of possible surrogates.               755 ILCS

40/25 (West 2006).    It also requires the facility to maintain any

advance directives proffered by the patient or another authorized

person, such as do not resuscitate orders, living wills, or a power

of attorney for health care in the patient’s medical records for

the duration of the patient’s stay.          755 ILCS 40/15 (West 2006)

(emphasis added).

     I agree with the majority’s position that the Surrogate Act

ceases to apply once a patient is discharged and that a health care

facility, at that point, can no longer rely on the direction of the

surrogate.    Obviously,   there   is   an    omission   in   the    statute

providing no statutory direction for requests by a patient who

still might be disabled, but is no longer receiving care at the

facility.    I would note that statutes such as this that impose

limitations on an individual’s rights are to be strictly construed.

See generally In re Nancy A., 344 Ill.App.3d 540, 552, 801 N.E.2d

565, 577 (2003).     Thus, without a clear indication by statute of

the extent of the duration of the appointment of the surrogate for


                                   9
post-discharge matters, I am compelled to find that the surrogates’

authority terminated with Mildred’s discharge.   If the legislature

desires to extend the authority of the surrogate’s appointment,

they must explicitly do so.   Thus, I concur with the conclusion of

the majority that the facility in this case had to respond and

acquiesce to the patient’s request for records without consulting

with the surrogates.

     I also agree that the issue regarding the duration of the

surrogates’ authority should be decided and that the standard of

review is de novo.




                                 10
                          No. 3--07--0242
_________________________________________________________________
Filed April 14, 2008/May 29, 2008
                IN THE APPELLATE COURT OF ILLINOIS

                           THIRD DISTRICT

                             A.D., 2008

ELIZABETH S. BERGLAND,        )    Appeal from the Circuit Court
                              )    for the 14th Judicial Circuit,
     Plaintiff-Appellant,     )    Rock Island County, Illinois
                              )
     v.                       )    No. 06--MR--546
                              )
ILLINOIS DEPARTMENT OF PUBLIC )
HEALTH and ROSEWOOD CARE      )
CENTER OF MOLINE,             )
                              )    Honorable F. Michael Meersman,
     Defendants-Appellees.    )    Judge, Presiding
_________________________________________________________________

     Specially Concurring Opinion Upon Denial of Rehearing
     JUSTICE SCHMIDT, specially concurring:
_________________________________________________________________

     I concur in the opinion only to the extent that it holds

that "once a patient who lacks decisional capacity is no longer

under the care of a health care provider, the Surrogate Act

ceases to apply and the nominations for health care surrogates

are terminated."   Slip op. at 9.   Furthermore, I concur in the

judgment.   I fear that the statement, "Therefore there was no

basis to refuse a patient's request for records" (slip op. at 9)

is overbroad.   While the Surrogate Act would not provide a basis

to refuse a patient's request for records under the circumstances

before us, I have no idea whether there was any other basis to

refuse the patient's request for records and, therefore, I do not

concur in that language.
