delivered the opinion of the court:
Plaintiffs appeal the decision of the circuit court of Cook County dismissing their class action complaint for declaratory and injunctive relief against the defendants, the Illinois Department of Public Health and its Director, John Lumpkin, M.D. (State defendants); Richard M. Daley, mayor of Chicago, the Chicago Board of Health and its president, Whitney Addington, M.D., and the Chicago Department of Health (City defendants); and the Cook County Board of Commissioners as the Cook County Board of Health (incorrectly sued as the Cook County Board of Commissioners) and the County of Cook (incorrectly sued as the Bureau of Health Services) (County defendants). The complaint alleges that certain actions and inactions of defendants regarding efforts to restrict and suppress the spread of tuberculosis (TB) in Chicago violated section 2 of the Department of Public Health Act (DPHA) (20 ILCS 2305/2 (West 1992)), entitled "Powers and duties,” which concerns both State and local public health authorities. That provision states in pertinent part:
"The State Department of Public Health has general supervision of the interests of the health and lives of the people of the State. *** The Department may adopt, promulgate, repeal and amend rules and regulations and make such sanitary investigations and inspections as it may from time to time deem necessary for the preservation and improvement of the public health ***[.]
* * *
All local boards of health, health authorities and officers, police officers, sheriffs and all other officers and employees of the state or any locality shall enforce the rules and regulations so adopted.
The Department of Public Health shall investigate the causes of dangerously contagious or infectious diseases, especially when existing in epidemic form, and take means to restrict and suppress the same, and whenever such disease becomes, or threatens to become epidemic, in any locality and the local board of health or local authorities neglect or refuse to enforce efficient measures for its restriction or suppression or to act with sufficient promptness or efficiency, or whenever the local board of health or local authorities neglect or refuse to promptly enforce efficient measures for the restriction or suppression of dangerously contagious or infectious diseases, the Department of Public Health may enforce such measures as it deems necessary to protect the public health, and all necessary expenses so incurred shall be paid by the locality for which services are rendered.
As used in the Act, 'locality’ means any governmental agency which exercises power pertaining to public health in an area less than the State.” 20 ILCS 2305/2 (West 1992).
The complaint further alleges that the County defendants have also violated section 5 — 25013(A)(7) of the Counties Code (55 ILCS 5/5 — 25013(A)(7)(West 1992)), which states that a board of health shall, "[w]ithin its jurisdiction, and professional and technical competence, investigate the existence of any contagious or infectious disease and adopt measures, not inconsistent with the regulations of the State Department of Public Health, to arrest the progress of the same.” 55 ILCS 5/5 — 25013(A)(7)(West 1992).
According to the complaint, TB is an acute or chronic infectious pulmonary disease characterized by "fever, chills, night sweats, malaise, weight loss, coughing, the accumulation of sputum, chest pain and difficulty in breathing.” The complaint states that, although the disease is fatal within five years in approximately 50% of the cases which go untreated, most TB patients are treatable and "highly curable” where there is early diagnosis and treatment. Plaintiffs aver that TB can be detected (1) by administering a relatively inexpensive skin test and measuring the skin reaction 48 to 72 hours later and (2) where skin test results are positive, by taking a chest X ray to determine if the patient has active TB.
The complaint further states that 6 to 12 months of preventive therapy may be needed for persons who have positive skin test results but do not have active TB, while those with active TB usually receive a multiple-drug treatment regimen for six to nine months. In some active cases, "directly observed therapy” (DOT) is indicated, i.e., medication is administered under the direct supervision of a health care worker. Where the treatment regimen is not completed or drugs are prescribed improperly, certain strains of TB become resistant to the standard treatment drugs.
According to the complaint, tuberculosis is caused mainly by inhalation of airborne particles containing bacteria, resulting in a substantially higher risk of infection among those persons in close contact with infected persons. Plaintiffs allege that tuberculosis is a "dangerously contagious disease” as that term is defined in the DPHA and a "contagious and infectious disease” under the terms of the Counties Code. They further allege that tuberculosis exists in epidemic proportions in certain areas of Chicago and among the homeless in Chicago and that a tuberculosis epidemic is threatened in Chicago, as a whole, and in Cook County.
The complaint alleges that there were 751 confirmed active TB cases in Chicago in 1991 and 793 cases in 1992, amounting to 60% of all reported cases in Illinois; that the annual incidence of new TB cases in Chicago rose 22% over the period 1987-1992; that the percentage of Chicago inhabitants with TB is four times that for the rest of Cook County and six times that for the rest of the State; and that in 1991 there were active TB cases in 17 Chicago public schools.
Plaintiffs also allege that, while the TB rate in Chicago as a whole is 28.5 cases per 100,000, the rate among Chicago’s increasing homeless population is 90 cases per 100,000 and that the neighborhoods with the highest number of reported TB cases in 1991 and 1992 were among the poorest neighborhoods with the greatest number of homeless persons, including Chicago’s Uptown, Austin, Grand Boulevard, Near West Side, North Lawndale, New City and West Englewood areas. Plaintiffs aver that the incidence of TB is substantially higher among the poor because poor housing, insufficient health care, and poor nutrition are contributing factors to the spread of the disease. It is alleged that homeless persons are at particular increased risk because the likelihood of contracting TB is greater in cramped, poorly ventilated living or sleeping quarters, a condition allegedly existing in many shelters for the homeless.
Plaintiffs allege that the State defendants have violated section 2 of the DPHA (20 ILCS 2305/2 (West 1992)), in that they have (1) failed to investigate the causes of, and to take means to suppress and restrict, TB in Chicago, except that they have compiled data provided by the City defendants and they have provided limited technical assistance to the Chicago Department of Health; (2) failed to ascertain whether the City defendants and the County defendants have taken efficient measures to restrict and suppress TB in Chicago; and (3) failed to ensure implementation of an effective public awareness campaign, an effective program for screening populations at risk for TB, an effective program for appropriate treatment to TB sufferers, or an effective system for tracking or reporting TB cases.
The allegations against the City defendants are that they have violated the same statute by failing to enforce efficient measures to restrict and suppress TB in Chicago. Specifically, the complaint alleges that the City defendants have (1) failed to implement an effective public awareness campaign regarding TB; (2) failed to implement an effective program for TB screening and diagnosis among populations at high risk of infection, in that the City defendants have not met their own screening and diagnosis goals and have not conducted regular screening in homeless shelters or Chicago public schools; (3) failed to provide preventive therapy or ensure completion of such medically indicated therapy for some persons; (4) failed to provide adequate alternative housing for a sufficient number of homeless persons with active TB; (5) failed to implement an effective treatment program for persons with active TB; and (6) failed to implement an effective case reporting and tracking system. Plaintiffs state in their brief that this failure to enforce efficient measures to restrict TB includes failure to enforce State public health regulations which adopt the TB guidelines of the Center for Disease Control. For example, the regulations require availability of health education materials to schools and information on disease trends to health care providers, appropriate inpatient, outpatient and home care services as defined by the American Thoracic Society, and follow up for at least 90% of persons in close contact with active TB patients. (See 77 Ill. Adm. Code § 615.350 (1990).) The complaint, however, does not explicitly allege violations of State regulations in particular.
The plaintiffs’ claims against the County defendants primarily pertain to conduct at two facilities located in Chicago and operated by Cook County: Cook County Hospital, which serves residents of Cook County, including Chicagoans, and Cermak Health Services, which provides medical services to Cook County jail inmates. Specifically, plaintiffs charge that, in violation of section 2 of the DPHA and section 5 — 25013 of the Counties Code, an insufficient number of isolation rooms is available at Cook County Hospital or Cermak Health Services, the number of TB field workers is insufficient to provide necessary patient follow-up and supervised therapy for patients at those facilities, and no screening program exists among county employees working at Cook County jail, where there is a high incidence of TB. Plaintiffs also claim that the County defendants have failed to take necessary measures within Chicago which are required to prevent the spread of a TB epidemic to suburban Cook County.
In May 1993, the named plaintiffs filed a two-count complaint on behalf of themselves and a class consisting of "all persons in Chicago, Illinois who, on or after January 1, 1991, have been, are or will be ’homeless’ as defined in 42 U.S.C. § 11302(2).” Of the named plaintiffs, two are alleged to have contracted TB, while the others are alleged to be at an increased risk of contracting the disease because of defendants’ failure to provide efficient measures to restrict TB in Chicago.
One of the class representatives is a homeless Chicago man who was diagnosed with TB at a private hospital in 1990. The complaint alleges that, although he received medication from the private hospital and later from Cook County Hospital, he did not receive proper medical follow up from the Chicago Department of Health or Cook County Hospital, resulting in his TB becoming resistant to two drugs commonly used in treatment. According to the complaint, although he currently receives weekly treatment from a Chicago Department of Health nurse, he is in need of a stable living situation for the duration of his therapy.
Also named as class representatives are three Chicago women and their minor children, all of whom are homeless and reside in homeless shelters in Chicago. They allege that the shelters are often overcrowded and poorly ventilated, sometimes with all residents either sleeping or eating in one room. The children attend Chicago public schools. These plaintiffs allege that, because of defendants’ actions and inactions, particularly as they affect the homeless and children in Chicago public schools, they are at a substantially greater risk of contracting TB than they would be if defendants had taken proper measures to restrict and suppress the disease.
In addition to the class representatives, the named plaintiffs include a child living in Harvey, Illinois, which is located outside Chicago in suburban Cook County. He was diagnosed with TB in January 1992, but is currently in remission. The complaint stated that, as an infant, he contracted TB in 1991 from a man living with his family. The man had TB, which he may have contracted while homeless in Chicago. The complaint alleges that, because the child travels between Harvey and Chicago, where several of his relatives live, he is at a higher risk of a recurrence of TB and there is also a higher risk of his transmitting TB to his family in Harvey and in Chicago than there would be if defendants took proper measures to suppress TB in Chicago. His mother and a sibling, both of whom reside with him and are therefore in close contact with him, are also named plaintiffs. The complaint alleges that, due to this close contact, the mother and sibling are at increased risk of contracting TB as a result of defendants’ failure to take proper measures to restrict and suppress TB in Chicago.
The remaining named plaintiffs are alleged to be at an increased risk of contracting TB either because they are homeless and/or have children attending Chicago public schools or because they are employed at, or are performing volunteer services in, homeless shelters or schools in Chicago where the risk of TB is high. According to the complaint, all of these plaintiffs, by frequent close contact with persons in the shelters or the school, are at a substantially higher risk of contracting TB than they would be if defendants were taking proper measures to suppress TB in Chicago. Also, the two volunteers, who currently work in shelters where TB screening is offered, are allegedly deterred from working in other shelters where, because of defendants’ inaction, no such screening occurs. Plaintiffs state that, because of defendants’ conduct regarding TB in Chicago, they and persons in the class they represent are threatened with irreparable injury, including "contracting TB; suffering pain and permanent and life-threatening physical injury from contracting TB; anxiety and distress caused by fear of contracting TB and fear of exposing others (including family members) to a potentially fatal disease.”
Under count I, they seek a declaration that all defendants violated section 2 of the DPHA and an injunction prohibiting defendants’ continued pursuit of any actions, policies or practices declared to be violative of that act and requiring defendants to conduct a study of TB in Chicago and to formulate a detailed plan for court approval and supervision until TB is no longer epidemic or threatening to become epidemic within Cook County. The complaint details several items which plaintiffs wish to have included in the court-approved plan, such as periodic TB screening in homeless shelters, drug abuse/alcohol treatment centers, public health clinics, AIDS clinics, and schools attended by children at high risk; more teams of public health caseworkers for screening, follow up, and treatment; incentives for compliance with treatment, such as meals, clothing, safe and adequate housing; isolation rooms at Cook County Hospital for all TB patients who need them; more X-ray equipment, particularly portable equipment; specialized housing for persons having difficulty following treatment plans; a comprehensive tracking system for those receiving treatment; and identification of shelters where homeless are exposed to TB and implementation of necessary action, such as adequate housing, to protect the homeless from such exposure.
Count II seeks a declaration that the County defendants have violated section 5 — 25013(A)(7) of the Counties Code and an injunction prohibiting continuation of such actions and inactions and directing a study and court approved and supervised plan for effectively restricting and suppressing TB in Chicago.
All defendants filed motions under section 2 — 615 of the Code of Civil Procedure (735 ILCS 5/2 — 615 (West 1992)), requesting dismissal. The trial court dismissed plaintiffs’ action with prejudice on the grounds that a private right of action could not be implied under either of the two statutes under which plaintiffs claimed such a right.
OPINION
In reviewing a dismissal pursuant to a section 2 — 615 motion by defendants, the question is whether the facts alleged, when viewed in the light most favorable to the plaintiffs, adequately state a cause of action. (County of Cook v. City of Chicago (1992),
We first consider whether a private right of action exists for violations of section 2 of the DPHA (20 ILCS 2305/2 (West 1992)). In making that determination, the primary focus is on the intent of the legislature in enacting the statute. (Sawyer,
The DPHA contains no language which expressly grants a private right of action. (See 20 ILCS 2305/2 et seq. (West 1992).) However, the fact that there is no such explicit language is not necessarily dispositive because a court, considering the totality of circumstances, may determine that a private right of action can be implied in the statute. (Sawyer,
The Illinois Supreme Court has distilled the analysis of legislative intent regarding a private right of action into four prerequisites, all of which must be satisfied before a private right of action under a statute will be implied: (1) the plaintiff is a member of the class of persons for whose benefit the statute was enacted; (2) plaintiff’s injury is one which the statute was designed to prevent; (3) a private right of action is consistent with the underlying purpose of the statute; and (4) a private right of action is necessary to effectuate the purposes of the act, i.e., to provide an adequate remedy for violations of the statute. (Rodgers v. St. Mary’s Hospital (1992),
The first prerequisite is that plaintiffs must be members of a class of persons for whose benefit the statute was enacted. The purposes of the DPHA are not explicitly enumerated in the statute, and there is no legislative history to aid us. However, plaintiffs urge, and we agree, that, as stated in County of Cook, a purpose of section 2 of the DPHA is "to protect the public by the containment of highly contagious diseases, especially those reaching epidemic levels.” (County of Cook,
Plaintiffs contend that, because the statute was enacted for the benefit of the public and all plaintiffs are obviously members of the public, the first requirement is satisfied. Defendants, however, claim that no private right of action can be implied where the statute is enacted for the benefit of the public at large, rather than a particular segment of the public.
While there is little discussion of this issue in Illinois decisions, it has been the subject of extensive discussion under Federal authority. (See, e.g., California v. Sierra Club (1981),
In California v. Sierra Club (1981),
"The question is not simply who would benefit from the Act, but whether Congress intended to confer federal rights upon those beneficiaries. [Citation.]
In ascertaining this intent, the first consideration is the language of the Act. Here, the statute states no more than a general proscription of certain activities; it does not unmistakably focus on any particular class of beneficiaries whose welfare Congress intended to further. Such language does not indicate an intent to provide for private rights of action. ***
* * *
*** The language of the statute and its legislative history do not suggest that the Act was intended to create federal rights for the especial benefit of a class of persons but rather that it was intended to benefit the public at large through a general regulatory scheme to be administered by the then Secretary of War. Nor is there any evidence that Congress anticipated that there would be a private remedy.” California v. Sierra Club,451 U.S. at 294-98 ,68 L. Ed. 2d at 107-10 ,101 S. Ct. at 1779-81 .
This rationale was also discussed in Howard v. Pierce (6th Cir. 1984),
"Although the plaintiff may be a member of the public and thus an intended beneficiary of the statute, the likelihood that Congress intended members of the general public to enforce such statutes is not great. In contrast, the inference that Congress intended to create legally enforceable rights is strongest when the statutory language focuses unmistakably on a specific and identifiable class of beneficiaries.” (Howard,738 F.2d at 726 .)
See also City of Evanston v. Regional Transportation Authority (7th Cir. 1987),
While Cort and other Federal cases state that plaintiff must be in the class of persons "for whose especial benefit the statute was enacted” (emphasis omitted) (see Cort,
In People of State of Illinois ex rel. Trust Co. v. Maryland Casualty Co. (7th Cir. 1942),
"[I]f the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public, not an individual injury, and must be redressed, if at all, in some form of public prosecution.
Since the officers in this case were discharging a public duty and not a duty they owed the individuals in the case at bar, there can be no liability on the part of the officers to such parties.” Maryland Casualty,132 F.2d at 852-53 .
Plaintiffs cite Corgan in support of their position that the first requirement for implication of a private right of action is satisfied because they are members of the general public. In Corgan, the statute at issue was the Psychologist Registration Act (Ill. Rev. Stat. 1981, ch. Ill, par. 5301 et seq.). A patient sought to bring an action under the statute against the defendant, who allegedly practiced psychology without a valid certificate of registration and, under the guise of therapy, engaged in sexual intercourse with the patient. (Corgan,
We turn next to the second prerequisite for implication of a private right of action, that plaintiff’s injury be one which the statute is intended to prevent. Defendants claim this requirement is not met because plaintiffs have suffered no injury in fact. Defendants characterize plaintiffs’ injury as a fear of contracting TB and contend that such an "injury” is not an injury in fact, as it is too speculative. They urge us to apply the same standard for injury here as is applied in questions of standing. (See Greer v. Illinois Housing Development Authority (1988),
We need not here determine the sufficiency of all claims by all of the plaintiffs. The threatened injury to some plaintiffs is greater in degree than for other plaintiffs. However, taking the well-pleaded facts as true, which we must do in reviewing a dismissal pursuant to a section 2 — 615 motion (Capitol Indemnity Corp. v. Stewart Smith Intermediaries, Inc. (1992),
The third prerequisite is that implication of a private right of action must be consistent with the underlying purpose of the statute. We note at the outset that governmental action to restrict and suppress the spread of contagious diseases falls within the scope of a State’s police powers. (People ex rel. Barmore v. Robertson (1922),
The large number of contagious diseases, the variety of ways they are contracted, treated, and prevented, the differences in their severity, the fluctuations in levels at which each disease is present, and the limited amount of resources available to contain and treat all of these diseases are all factors which necessitate that the State Department of Public Health be allowed latitude and discretion in the manner in which it fulfills its duties to the public. See, e.g., Robertson,
The language of section 2 is fully consistent with this approach and it appears on its face to grant broad discretion to the State Department of Public Health. Section 2 states that the State Department of Health "shall investigate the causes of dangerously contagious or infectious diseases, especially when existing in epidemic form, and take measures to restrict and suppress the same.” (20 ILCS 2305/2 (West 1992).) Although use of the word "shall” is generally considered as imposing a mandatory duty (see Greer,
Thus, in considering the language of the statute as a whole, we conclude that the manner in which the Department investigates and the specific measures it takes to suppress dangerously contagious diseases is left to the broad discretion of the Department. See Hightower v. Duffy (1989),
Where broad discretion is given to an agency, it negates the implication that there was legislative intent to create a private right of action. The case of Suter v. Artist M. (1992),
filed under the Adoption Assistance and Child Welfare Act (42 U.S.C. §§ 670 through 679a (1980)), for declaratory and injunctive relief against the Illinois Department of Children and Family Services. The Federal statute required that, in order to receive Federal reimbursement for certain foster care expenses, a State must submit a plan for approval, which plan must include "reasonable efforts” to prevent or eliminate the need for removing a child from his or her home and to make it possible for the child to return home. (Suter,
Just as in Suter, the actions required to effectively restrain and suppress contagious disease will vary depending upon the nature of each particular disease involved and the efficacy of various detection and treatment measures. (See New York State Society of Surgeons,
As defendants argued below, to allow plaintiffs a private right of action could subject the Department of Public Health and local health authorities to inconsistent court rulings based on suits brought by a variety of groups, each of which proposes its own plan directed at a different contagious disease. Also, the plan which plaintiffs seek to have the court impose would place day-to-day administration of the State’s public health policy in the courts rather than in the State Department of Public Health, where the General Assembly intended such authority to reside. (See, e.g., People v. Roush (1984),
As to the City and County defendants, we note that section 2 of the DPHA imposes on them what appears to be a mandatory duty, stating that local health authorities "shall enforce the rules and regulations” adopted by the State Department of Public Health. However, as previously noted, the statute also provides that the State Department of Public Health may take whatever action it deems necessary to enforce its rules and regulations, at the expense of the locality. To provide a private right of action against the City defendants and the County defendants would undermine this discretionary authority of the Department of Public Health to determine what enforcement is warranted and would be inconsistent with the legislature’s intent to establish a regulatory scheme directed by the Department.
We also note that the complaint in the present case, while proposing measures which may differ from those employed by the defendants, does not allege arbitrary or capricious actions. Therefore, even if a private right of action could otherwise have been implied under section 2 of the DPHA where defendants’ actions are arbitrary and capricious, the availability of a private right of action would not have been sufficiently pled in this case. See Robertson,
The last requirement for implication of a private right of action is that such an action must be necessary to effectuate the purposes of the statute, or to provide an adequate remedy for violation of the statute. In this regard we note that the Act contains provisions which can supply teeth for enforcement, particularly where the local public health authorities are concerned, albeit those teeth are not those of a saber-toothed tiger. As mentioned above, section 2 provides that whenever a dangerously contagious or infectious disease exists in epidemic proportion or threatens to become epidemic and local authorities neglect or refuse to enforce measures for restricting and suppressing the disease with sufficient efficiency and promptness, the Department of Public Health, at the expense of the locality, may enforce measures which it deems necessary for the locality. (20 ILCS 2305/2 (West 1992).) Furthermore, section 8.1 of the Act provides that any violation of a Department of Health rule or regulation constitutes a Class A misdemeanor (20 ILCS 2305/8.1 (West 1992)), which can result in a term of imprisonment of less than one year. (730 ILCS 5/5 — 8—3 (West 1992).) The statute requires the Department of Public Health and the State’s Attorney for each county to institute such prosecutions.
While the existence of a remedy such as criminal prosecution does not preclude an implied private right of action (Kelsay v. Motorola, Inc. (1979),
In addition, we note that the DPHA is not remedial in nature. The analysis in Davis v. Dunne (1989),
The same rationale should be applied in the present case. Here, as in Davis, the legislature sought, not to redress wrongs committed against individuals by the State Department of Public Health or the local health authorities, but to protect the public from contagious diseases, especially those existing in epidemic form, and to establish a regulatory scheme for that purpose.
We further note that, even if a private right of action could have been implied under the Act, suit against the State defendants would have to have been brought in the Court of Claims rather than the circuit court. The Court of Claims Act gives the Court of Claims exclusive jurisdiction to hear and determine claims against the State which are founded upon a State law or a regulation by an executive or administrative officer or agency pursuant to a State law. (See 705 ILCS 505/8(a) (West 1992).) While it is true that where a plaintiff is not seeking to enforce a claim for damages against the State, an action to enjoin a State officer from taking future actions in excess of his delegated authority can be brought in the circuit court (BioMedical Laboratories, Inc. v. Trainor (1977),
Manifestly, the plan proposed by plaintiffs for approval and monitoring by the court would operate to control lawful actions of the State by requiring screening at certain locations, provision of caseworkers for certain tasks, provision of housing in some instances, and implementation of systems for identification and tracking. Therefore, as to the State defendants, if a private right of action existed, the Court of Claims would have had exclusive jurisdiction to grant the injunctive relief requested.
Finally, with respect to the County defendants, we must consider whether count II of the complaint was properly dismissed. As explained earlier, count II seeks declaratory and injunctive relief against the County defendants (the County of Cook and the "Cook County Board of Commissioners as the Cook County Board of Health”) for alleged violations of section 5 — 25013(A)(7) of the Counties Code (55 ILCS 5/5 — 25013(A)(7) (West 1992)), which requires a county board of health, within its jurisdiction and its professional and technical competence, to investigate and adopt measures to prevent the spread of contagious or infectious diseases. The alleged violations, as in count I, concern the County defendants’ actions or inactions in response to the alleged TB epidemic in Chicago only. Count II seeks injunction against the County defendants only in connection with the conduct of the County defendants inside the City of Chicago.
Defendants claim no private right of action can be brought under this section of the Counties Code because, under the Code, the County Board of Health has no jurisdiction in Chicago. Thus, they argue that there can be no violation of section 5 — 25013(A)(7) for failure to act within Chicago. They further argue that, because the statute only requires action within the County Board of Health’s jurisdiction, plaintiffs are not within the class of persons for whose benefit the statute was enacted.
Section 5 — 25008 of the Counties Code (55 ILCS 5/5 — 25008 (West 1992)) specifically exempts any city, village or incorporated town with a population of 500,000 or more from the county health department’s jurisdiction. A county board of health is the body which manages a county health department. (See 55 ILCS 5/5 — 25012 (West 1992).) Plaintiffs concede that, since Chicago has more than 500,000 inhabitants, the Cook County Board of Health has no jurisdiction to act under section 5 — 25013(A)(7) within the City of Chicago. Plaintiffs argue, however, that the County defendants do, in fact, have jurisdiction over Cook County Hospital and Cermak Health Services, both located in Chicago. See 55 ILCS 5/5 — 37001 (West 1992) (giving the Cook County Board of Commissioners jurisdiction over Cook County Hospital and Cermak Health Services).
We note, first of all, that section 5 — 25013 expressly states that it applies only to actions by county and multicounty boards of health. Therefore, its provisions do not apply to defendant County of Cook, incorrectly sued as the Bureau of Health Services, since the Bureau of Health Services is not a county board of health. The section does apply, however, to the other county defendant, the Cook County Board of Commissioners as the Cook County Board of Health.
It is important to keep in mind, however, that section 5 — 25013 imposes upon boards of health governmental responsibilities regarding public health measures. Because section 5 — 25008 of the Counties Code puts the City of Chicago outside the jurisdiction of the Cook County Board of Health, section 5 — 25013 can impose upon the Cook County Board of Health none of those governmental public health duties. Any duties which arise regarding the operation of Cook County Hospital and Cermak Health Services arise, not from the public health provisions of section 5 — 25013, but from independent sources. For example, the duty to maintain Cook County Hospital and provide appropriate care therein derives from Counties Code section 5 — 37001 et seq., entitled "County Hospitals — Counties Over 1,000,000 Population.” (See 55 ILCS 5/5 — 37001 et seq. (West 1992).) Cook County Hospital also has the same duty of care that any medical provider has to its patients. (See County of Cook,
As to plaintiffs’ contention that section 5 — 25013(A)(7) indirectly imposes a duty on the County defendants to take actions within Chicago because conditions in Chicago threaten an epidemic of TB in Cook County, we note that the relief sought under count II is a study and court approved plan for restricting and suppressing TB in Chicago. Section 5 — 25013(A)(7) specifically requires a county board of health to investigate and adopt measures within its jurisdiction for preventing the spread of contagious diseases. Since the Counties Code exempts Chicago from the County Board of Health’s jurisdiction (55 ILCS 5/5 — 25008 (West 1992)), and section 5 — 25013(A)(7) applies only within that board’s jurisdiction, that section can impose no duty on the County defendants to take any actions within Chicago to suppress TB.
Therefore, count II of plaintiffs’ complaint was properly dismissed because it fails to state a claim on which relief can be based. Because the Counties Code places Chicago outside the Cook County Board of Health’s jurisdiction, plaintiffs cannot assert any claim based on the actions or inactions of the Cook County Board of Health within the City of Chicago. By the same token, plaintiffs, suing on the basis of their residence, employment, or volunteer status in Chicago, cannot claim to be members of the class for whose benefit that statute was enacted. Having so concluded, we need not consider whether section 5 — 25013(A)(7) satisfies the four prerequisites for an implied private right of action (see Rodgers,
For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
Affirmed.
McNULTY and COUSINS, JJ„ concur.