*1 II. Claim of Assistance Inadequate allegation argues Defendant’s of ineffective assistance of counsel he would eligible probation, that had he been informed he was not notes, sought plea majority allega have a favorable deal. As the this tion was contradicted and the trial discussions between defendant allegation court on the record. But the of defendant’s substance asks us to speculate plea negotiations about what would have taken offer, place prosecution, between himself and the the State’s ultimate reject and his decision to recent accept supreme or it. Our court’s guidance allegation speculative, indicates defendant’s is so we should Bew, People entertain it at all. v. 228 Ill. 2d Ac cordingly, that is the basis on which would affirm the trial court. BERGLAND, ELIZABETH S. Plaintiff-Appellant, v. THE DEPARTMENT OF al., Defendants-Appellees. PUBLIC HEALTH et Third District No. 3 — 07—0242 Opinion April 14, Rehearing filed May 2008. 2008 . CARTER, J., specially concurring.
SCHMIDT,J., concurring upon rehearing. specially denial of *2 Silvis, appellant. (argued), for Dean L. Sutton of (Michael Scodro, General, Chicago Solicitor Madigan, A. Attorney Lisa Purcell, At- General, (argued) Sharon A. Assistant Mary C. Labrec General, counsel), appellee Department of Public Health. torneys the court: opinion JUSTICE O’BRIEN delivered review of sought administrative Bergland Elizabeth Plaintiff (IDPH) grant Health’s of Public Department defendant Illinois Center, which Rosewood Care summary judgment in favor of defendant The trial health care records. Bergland copies of her mother’s decision, that Rosewood’s refusal finding IDPH’s court affirmed the Health Care under both proper the records was Act) and Ac- Portability Insurance and the Health (Surrogate (HIPAA). 2004); seq. et 755 ILCS countability Act of 1996 the trial reverse Bergland appealed. We seq. §1320 et U.S.C. of IDPH’s decision. court’s affirmance
FACTS mother, Strutz, was a Mildred Bergland’s Plaintiff Elizabeth Moline, September at Rosewood Care Center and her Mildred 5, 2004. On December through November that a asking husband, Eric, request written submitted a daughter, their be to sent medical records copy of Mildred’s Eric but identi- by both Mildred and signed letter was Bergland. The of the records. recipient as the contact as well Bergland fied as the sole entitled Health was a form file at Rosewood Included in Mildred’s document, Surrogate: Physician Care Certification. physicians, nonidentified signed by two 2004 and dated October sur- appointed were as daughters of Mildred’s other indicated that two care decisions. Mildred’s health regarding decision makers Notes in surrogate. as a was not identified husband very to be “appear[edj that Eric Rosewood state Mildred’s file at his informed[,] decisions” on competent to make and unable confused wife’s behalf. records, Rosewood’s administrator request receiving the
After contacted one of the identified surrogates, Peschang, Teri and sent her copy of Bergland’s request Peschang for Mildred’s records. would not consent to Bergland. a release of the records to The administrator’s stated, notes indicated Peschang “I don’t know up what Susan is but it good has to be NO + going part [sic] am not to be a of it.” Based on Peschang’s consent, refusal of Bergland’s Rosewood denied request. IDPH, complaint thereafter filed a with alleging that (Act) (210
Rosewood violated the Nursing Home Care Act ILCS 45/2— 104(d) (West 2004)) by denying Bergland’s request for Mildred’s records. IDPH investigated complaint and found insufficient evidence to cite Rosewood for a violation of the Act. filed a (ALJ). hearing for a with an administrative judge law responded with two motions for summary judgment and Bergland filed a summary cross-motion for judgment. Only one of IDPH’s mo- tions appears record; Bergland’s cross-motion does not appear. Similarly, the record only contains one of the transcripts from the IDPH hearings.
Following hearing on summary motion, IDPH’s judgment ALJ recommended that granted, IDPH’s motion be finding that there were no issues fact, of material the Department properly investigated Bergland’s complaint, and its determinations were *3 error. The ALJ concluded that properly Rosewood relied on the sur- rogate’s denial of the release of Mildred’s records and that Rosewood was rely surrogate’s on the pursuant decision to the Sur- rogate Act. The IDPH director adopted and affirmed the ALJ’s determination and issued a final order.
Sometime during ALJ, the proceedings before the Peschang consented to release Mildred’s records to Bergland. Bergland, however, contends that she did not receive all the petitioned records. She judicial review. IDPH answered with the IDPH record attached. Argu- ments were court, held before the trial sponte raised sua HIPAA barred the release of Mildred’s records. The trial court also found that once Mildred discharged the Sur- rogate Act no longer applied. Notwithstanding conclusion, the trial court went on to determine that properly Rosewood relied on the health care surrogate’s decision when it copies Mildred’s records. Bergland appealed.
ANALYSIS issue, As a threshold we must determine appeal whether this According IDPH, moot. although Bergland requested received the pursuant to Peschang’s subsequent disclosure, consent to the
522 the determina- challenges Bergland’s claim is not moot because
cause right to access Mildred’s Rosewood did not violate tion IDPH that Act when it denied Nursing Home Care pursuant her records for records. request the appel controversy prerequisite is a of an actual
The existence not decide moot is generally will reviewing court jurisdiction; late 387, 399, Works,Inc., 830 App. 358 Ill. 3d & Body Adams v. Bath sues. the issues review is moot when 645, A case on 657 N.E.2d oc events that subsequent because exist the trial court ap for the impossible filed make it appeal the had been curred after Whitten, App. 292 Ill. Whitten v. grant effective relief. court to pellate (1997). However, reviewing court 19, 784, 21-22 780, 686 N.E.2d 3d (2) (1) nature; it public it is merits of a moot issue may reach the guid to offer determination provide an authoritative is desirable (3) reappear. would officers; likely question the it is public ance to at 22. at 686 N.E.2d Whitten, App. Ill. 3d to the release ultimately consented Peschang Because i.e., relief, ac requested records, cannot order the this court us is issue before dispositive the records. cess to Mildred’s nursing home discharged to a applies the whether is no case law in nature. There such, public issue is As the resident. determination issue, so it is desirable addressing the Accord reappear. will likely question it is the guidance, and future exception to interest public case under the we review the ingly, mootness doctrine. finding erred in question of whether turn now to deny decision to relied on properly
that Rosewood contends medical records. to her mother’s Bergland access deny Mildred’s Act to wrongly relied that IDPH Surrogate Act does Bergland, the According to for records. discharged from Rosewood been Mildred had because time request. The fundamental statutory interpretation. is one of
This issue give ef to ascertain a statute is we construe when employed rule Health Evangelical Ficke v. legislature. intention of the fect to the (1996). The 888, 892 App. Ill. 3d Systems, Ficke, intent. legislative indicator are the best of the statute words clear, language is at 892. When 674 N.E.2d App. 3d at *4 Ficke, App. 3d interpretation. to other tools do not look we Belvidere v. City is de novo. Our review at 892. 674 N.E.2d at 692 Board, Ill. 2d 181 Labor Relations Illinois State (1998). 295, 302 shall every resident provides Act Nursing Home Care
The permitted inspect copy “be to and all his clinical and other records concerning by facility by his care and maintenance or his kept 104(d) (West 2004). physician.” regulations 210 ILCS Federal 45/2 — have access to her records. require nursing that a home resident §483.10(b)(2)(i) to Surrogate applies C.F.R. The Act condi- “patients qualifying who lack decisional or who have a (West 2004). tion.” to “have surrogate 755 ILCS A is entitled right patient the same as the to receive medical information and medi- 40/25(e) cal records and to consent to disclosure.” 755 ILCS 2004). A provider may rely authority health care of the sur- though decision maker as the decision had been made a 40/30(a) (West 2004). patient capacity. with decisional 755 ILCS “maintain Surrogate requires Act a health advance care includ- proffered by person, directives or other authorized order, will, ing living a do not resuscitate a declaration for mental treatment, care, power attorney health or a for health patient’s medical patient’s stay.” records for the duration of the (West 2004). ILCS 40/15 Surrogate applied found that the Act and that Rosewood rely on surrogate denying the decision of the
Bergland’s request for Mildred’s records. The trial court intimated Surrogate that the Act did not to Mildred because she had been discharged from Rosewood. We with the trial court. The Sur- rogate Act requires provider the health care patient’s to maintain a advance directives for patient’s stay. recognize the duration of the statutory provision expressly surrogate does not enumerate a form. generally, because the provision the instant specifically, applies patients who lack capacity, it stands surrogate appointment to reason that a among form would be pertinent those to be included with other medi- cal and treatment decision documents in patient’s file. It further fol- lows documents such as power attorney for health care must be only patient’s stay, maintained for the duration of the ap- pointment of a to make various treatment decisions should similarly be limited. Our interpretation is consistent with the dura- Act, Nursing tional limitations set forth in the Home Care provides that the nursing any responsibility home is “relieved from care, safety for the resident’s well-being” or once a resident (West 2004). discharged. 210 ILCS 45/2—111 Act, Accordingly, interpretation based on our Rosewood was not required prior to obtain a consent release of Mildred’s Mildred remained a records. Had facility’s surrogate appointment reliance on the *5 proper. been because
the decision would have the for records was longer patient was no a when Mildred made, Mildred’s records based refusing Rosewood erred in to release cognizant are that surrogate’s refusal to consent. We on the Nevertheless, from Rosewood. has since obtained Mildred’s records doctrine, to the mootness public exception interest pursuant is no lacks decisional we hold that once a who Surrogate Act ceases to provider, the under the care of a health care surrogates are terminated. the nominations for health care apply and records. patient’s request a there was no basis to refuse Therefore a Surrogate requires Act although concern that the note with cause, nature and duration of opine as to the patient’s physician to surrogate certificate incapacity, the patient’s the Moreover, failed to certifying physician the instant case fails to do so. surrogate, was not chosen as why Mildred’s husband delineate we have concluded statutory directive. Because contrary to the discharge upon Mildred’s apply ceased to surrogacy appointment the effects, Rosewood, any, inadequa- of the do not examine the we IDPH in Moreover, by determined as surrogate cies of the certificate. ap- of the challenge, propriety the response Bergland’s and ours as well. scope of its review beyond was the pointment challenge surrogate’s wishes to indicates that one who Surrogate Act proceeding. 755 guardianship is to initiate a 2004). 40/25(d) (West emphasize that point only the We raise ILCS physician, by certifying the been followed statutory had the mandates sufficiency of the regarding the Bergland raises many of the issues avoided. would have been surrogacy certificate issue, need not reach the above we disposition Based on our appeal. raised on other issues court of reasons, of the circuit judgment the foregoing
For the IDPH is set decision of the reversed and the County Island is Rock aside.
Reversed.
SCHMIDT, J., concurs. CARTER, concurring: specially JUSTICE majority the by reached the conclusion I concur with specially discharged, longer patient no once Mildred was Thus, I and decision. surrogates’ direction longer rely no could refusing to release erred in agree that Rosewood to consent. surrogates’ refusal based on The Health requires facility, Care a health care when the capacity, lacks decisional to make a reasonable inquiry availability as to the agent of a health care under the Powers (755 Attorney for Health seq. Care Law ILCS et 45/4—1 2006)), and, agent available, when provider is authorized or must make a inquiry availability possible reasonable into the sur- (West 2006). rogates. 755 requires ILCS It also maintain advance directives proffered patient or another person, orders, wills, authorized such as do living not resuscitate or a power attorney patient’s for health care in the medical records for (West 2006). the duration the patient’s stay. 755 ILCS 40/15 with majority’s position Act ceases once a patient discharged facility, and that a health care *6 point, longer rely can no on the direction of the Obvi surrogate. ously, there is an providing statutory omission the statute direc tion for requests by might who still be disabled but is no longer receiving I facility. care at would note that statutes such as this that impose rights strictly limitations on an individual’s are to be generally A., construed. See In re Nancy App. 3d Thus, clear without a indication statute of the extent of the duration of the of the for postdischarge matters, compelled I am surrogates’ to find that the authority terminated with discharge. legislature If the desires to extend the authority surrogate’s appointment, it Thus, explicitly must do so. I major concur with the conclusion of the ity in this case respond acquiesce had to patient’s request for records consulting surrogates. without with the
I that the issue regarding surrogates’ the duration of the authority should be decided and that the standard of review de novo. SCHMIDT, specially concurring upon
JUSTICE denial of rehear- ing: opinion only
I concur in the to the extent that it holds that “once who lacks is no under the care of a provider, health care the Surrogate Act ceases to and the nominations for health care surrogates App. are terminated.” 382 Ill. Furthermore, 3d at 524. I judgment. concur fear that statement, patient’s request “Therefore there was no basis to refuse a (382 524) for App. records” Ill. 3d at is overbroad. the Sur While patient’s request Act would not a basis to refuse a us, records under the circumstances before I have no idea whether there was other basis to patient’s request refuse the and, therefore, I do not concur in language.