next case in our call this morning this is case is agenda number twelve case number one zero seven three one seven mark turner versus memorial medical center today to ask this court simply to do one thing and that is to declare that in illinois it is the public policy of our state to protect the safety rights of medical patients and to ask this court to protect individuals who work in the health care fields from retaliation trauma nation when they speak out against problems in the health care facilities now we're here today on a fairly limited record this case is was was dismissed by the district court and no discovery was undertaken we are here today simply based off of the amended complaint that was filed now i would like to just outline a little bit of the factual background because i do think it is somewhat important mr turner was a twenty three year employee of memorial medical center hospital a large hospital located in springfield in two thousand and six the fall of two thousand and six memorial was undergoing an accreditation review by the joint commission on accreditation of healthcare organizations or jayco at that time mr turner met with the surveyor and what mr trotter told them was that memorial's policies did not comply with  standard no i can't just scarman and i can't do that for a good reason and that is because i don't have access to those policies those policies some of them a minor portion of them have been attached to this for the first time here before the supreme court the that's a that's a that's private information that we do not have access to but what we are what we are alleging is that whether jayco requires that is essentially a question of fact that we need to discovery to establish we need to sit down with jake a we need to read all of their policies have access to all of the policies in total we need to speak to the surveyor to find out exactly what was said and whether it did violate patient standards and i think for the purposes of why we're hearing where we are pursued really in the case this is important and just from now don't know that it would override in no i guess it is not my position that it would override the well it's different it's important because it is an accreditation body and if a hospital does not have the accreditation of jayco and up until recently i believe was only jayco or one of its counterparts it can't receive federal funding for medicare in medicaid so state of illinois for professional health care providers to speak truthfully to state regulatory agencies concerning hospital practices involving even tangentially patient safety button and saying  as well the question is what is the public policy of the state of illinois patient safety is the public policy of the state of illinois under memorials argument in order for this sort of claim to proceed there's got to be some specific detailed rule in illinois law that says whatever is being alleged is a violation and i don't think that the administrative rules are that detailed  and i think vet really what we are what you are asking about is a question of fact and i believe that the appropriate question of the law is as a general matter if an employee complains about something that affects patient safety is that employee protected from a tally ation under the common law retaliatory just charge tort in this state it's going to be much jeopardized so the courts are going to continually balance with of what policy and what the limits of tort are rather than as i believe we're going to hear from opposing counsel and of them pretty easy way to address retaliatory just very well if the easy way to address what telly g twenty discharge is to say you've got a cite to a specific rule in illinois law that says that this is a violation yes that is likely to weed out a lot of claims but if the real question is what are the interests of the patients in the state of illinois and i believe that that is what the interest is what are the interests of the patients the interest of the patients of the state of illinois that if there are problems that compromise patient safety but those should come forward and i believe that the rights might be twenty minutes or fifteen minutes but in this case we have a situation where people are waiting ten hours to charge something and it doesn't take a leap of imagination to understand the importance of immediately tried in patient care particularly when someone is there on an emergency basis what medicine has been provided to them what treatments have they been given what are their vital signs if if we are waiting for a period of six seven eight hours by the time that that information is needed right away that information is needed later and  opinion on that justice freiman is that these are questions a fact and what what memorial is is essentially suggesting to this court is that the minutia of these particular facts need to be involved in all of these cases we're saying that it's something different the public policy of the state is patient safety that is very clear now if mr turner spoke out on an issue of patient safety that is a question of fact in our complaint we say that memorial itself economically geas that that is an issue immediate trotty is an issue of patient safety and it's not on the record but they do say that they do say that and so you explain it is not a record well we were here on the the motion to dismiss and so really what's in front of the court is the complaint and in the complaint we allege that memorial makes the statement that immediate  is a matter of patient safety in the document that was used to terminate mr turner which is not a record before this court because it was it was not they they specifically state that immediate charting is a matter of patient safety so what i'm saying is that's what our complaint alleges and there is there is evidence to support it the evidence just is not in the record because of where we happen to very very simple and it really boils down to how broad you define the issue we ask this court to define the issue broadly in the sense that it is the public policy of the state of illinois that patient safety be protected the morial ask you to make it very narrow and we believe that that does not promote patient safety in the state of and then the appellate court here do really what you're asking us to do and i know you're asking for an told j c h a h o that memorial's hospital's starting practices were different than the acronym standards and that sucks such action fall short of the supreme court's public policy threshold articulated in parliament here so i know you're saying that's a narrow interpretation but even with your argument that when we look at patient safety didn't  at the specific facts of this case and say that public policy doesn't warrant a different result in this particular case as it surrounds your clients at will employment well as as far as facts the only facts that are there are what is contained in the complaint now what what is contained in the complaint i don't believe corresponds with what the appellate court stated and you know we state in our complaint paragraph facts that are alleged we it and so simply saying well it's a it's a little bit different twenty one further than that and stated this is jeopardizing patient safety and that is what is alleged in the complaint and  earth supreme court authority so that we have to reverse and cases to get to the position you're in no i don't believe that there is any supreme court decision on point with this particular decision or with this particular set of issues so no i don't necessarily agree that it it has to be that the law of retaliatory discharge has to be expanded i think that it becomes important in how we define the question that is being asked and what what we are saying is that the most arguably the most fundamental policy of the state has to be to ensure patient safety that's what we're saying and when an employee speaks out particularly to someone with power like j cole a creditor's speaks out and says the morial jeopardizing patient safety and is fired as a result of that that offends the public policy in the state of illinois are you really asking us to do something more are you asking us to determine that it is that of the policy of the state to require immediate charging and and because your client was fired at that damage is that public policy or no i am not asking the court to do that i believe that whether any more immediately more charting jeopardizes patient safety is a question of fact that will be resolved at the trial a properly resolved at the trial court level by if not the jayco surveyors themselves then by expert witnesses but when an employee speaks out what i've seen when an employee speaks out alleging that this jeopardizes patient safety but this is putting our patients at risk this protecting the public interest the public policy of the state of illinois and it seems to me that a fair reading of all of the decisions of this court is that both retaliatory  designed to do is to protect the citizens of the state of illinois and to encourage people to do things that protect the citizens or it says citizenry with out of fear of being terminated or your response to justice termers question raises a question in my mind as to so the tort of retaliatory discharge in this case would apply to an employee who believes not no as you said it was in response to his question whether or not a media charity really affects patient safety is a question of fact that may have to be developed by experts doctors and others i would assume so the retaliatory just charge in this case would apply to an employee who believes that this effects patient safe when you're talking about the purposes of surviving a motion to dismiss i think that that is probably correct if you are talking about actually means successful once an evidentiary record has  don't believe that that's necessarily the case but i would also well i mean maybe this time it's a close call whether or not you know it it affects patient safety or not but you know what we do here affects a lot of other case so just to survive any type of dispositive motion then all it has to do would would be a particular employee would have to assert that something was against patient safety whether or not it's the most bizarre example in the world that we can think of or not the response to it would seem to be the same all of the pleading stage judge we should have a chance to bring in an expert to say it really does affect patients well i  with good solid claims are going to be thrown out because we have a problem in deciding whether well at the plane stage is this really something that compromises patient safety and you know at the pleading stage  we give the benefit to the plane and you know from from a practical perspective that attorneys are not going to pursue claims that have little to no merit as to whether someone is complaining about something to ensure the public policy the state only is carried out i think our main distinction between the plaintiff position to finish the mission is how do you find public policy it is our position that the response position here that the public regulations speak to what the public policy is so one of the core is presented with a whistleblower type of of cause of action or territory discharge it's the court's job to boil down that complaint to its nub and find out where is the public policy speech thirteen you'll see exactly what he said turner quote explain that respiratory therapy section only requires therapists to charge at some point in time before their shift concluded close quote everything else  complaint around that is all i would characterize as spin is that it's context verbiage but what he really said is respiratory therapy section must charge some point time before there should conclude it not after the shi concluded i think one of the true bakers comments was some of these charting it would come to twelve hours after the fact they're not saying that in the complaint that they were told to wait two shifts over in loon chart they're saying chart some time before the end of the shift of issues talks about confidentiality talks about insurance issues bill issues seemingly it's an open forum for the general simply to put anything they want to say this is our public policy but they did not say anything in that charting part of the record the is difficult to even define what is timely and so the general simply is chosen not to i think properly still in the hospital report card act not cited complaint but in the brief again another general simply opportunity to speak to this issue and again they go through various consumer rights involved in in finding out what's going on in a hospital under from a show hospital has compiled make available to the public side various other things but did not get to timeless a medical record preparation so there's two opportunities in general simply heads to this issue and neither one did they choose to do so why not will because the hospital licensing act as justice freeman was asking about earlier i think charlie dent they ha illinois but when they are silent there is some rule that this court has said for the court to intervene my argument though is that in this case you don't there is not the silen sense because the general simply has to record preparation they say it must be done and it must be a policy seated but it's not something that the general assembly has not ever touched upon something that is a neurologist that the general simply has not had a chance to they've addressed the issue of medical record preparation and they found that there is no reason to make it more than simply prepare and have a policy to do so this court has said previously in the bar case that's not enough simply decide a statute you must demonstrate the policy at issue in that statute is being violated and by citing the medical records practice patient i'm sorry medical patient's rights act the leave not get the right statute that would do anything to help their cause of action morning as i read in his great that would be a very what the plaintiffs in this case would like is the very different way of going about business it really does come down to he believes it's a public policy but i wish so therefore it passes the first test and that to me is making self of the public policy basically self self defining only have when you claim to which to me leaves the courts with very ineffective guidance as to how to determining keep replaying this course pressin which saying we're territory discharge is limited and narrow in scope if it's anything like what plaintiffs are doing this case is no longer limited and narrow it's whatever the plaintiff thinks it is just because it happens to be in the health care environment or there is a patient involved should not be carte blanche for plaintiff to self define a tort which is this court has always said his very limited in their own application the general  provided through the whistleblower act in the hospital port card act methods for which a statutory cause of action could be brought in this case it's again in there are alternatives for plaintiffs who feel they have a grievance in a health care environment that's not what they've chosen to pursue here we've chosen the common law approach my point to the court here is that there's no reason to try to broaden common law to encompass this particular claim when there are alternatives for a plane to pursue in this particular area hours it could be ten hours correct conceivably could be so in your brief on page twelve you do refer to the yellow administrative code regulations that require records as you say quote accurate i only incomplete how would a record be accurate or timely or complete if the information respiratory therapist charedi has not done for entire period ten hours well is that not reasonably impact public or public patients i don't know that i would myu one concern invision a circumstance where a record if not prepared to will add ten hours later in a patient would have a different set of circumstances emerged two hours after the treatment that yes there'd be a reason why one would wish to have that more timely prepared but i think you can spin very many circumstances on that what is timely is it five dollars is two hours is ten minutes is it five minutes think of all the different situations that could occur in a health care environment where routine situations happen it's difficult to try to define it i guess is my concern and to say that to go to a place with a general simply chose not to go when the judge will simply has used the word timely he would seem very easy for the journal simply if they are speaking to the public policy that they could say and we define timely is or should be within x number of minutes or hours but i think it's just a very difficult standard get your hands around to set forth in that particular particular way because of all the different situation that can occur in the health care environment so came in vision were more prompt record might have been beneficial to the patient surely i can't argue against that saying it's a public policy but the state has to the court the part of public health regulations in the statutes that state i don't know if they can have their cake the ways and have a cake needed to so speak it is a regulation it out had regulatory status if it's not a regulation then it doesn't speak to public policy and so for public policy is salient point to strikes at the heart of the citizens do these responsibilities the court only fills in where the constitution statutes are silent hears i've said a few times now the only long regulation are not silent there is not a thank you and i i will be brief there's a question as to what in the regulations timely means and i think that has to be flushed out by experts because in the medical field five minutes might be considered timely fifteen minutes might be considered on the edge and thirty minutes would be considered untimely let alone what ten hours would be when an says all you have to do is set up a policy of charting and and that's essentially it and you can you can try it whenever you want and that wouldn't be a violation but let's let's turn things around a little bit a medical malpractise claim is brought because an error is made when someone doesn't try timely you know because someone didn't chart there was no knowledge that a certain medication had already been administered so then we go ahead two hours later because it's not trying to timely we go ahead and we did that medication again because we don't know that that medication was already given and that is injured or or dies but the best bet is that in that instance you have a specific factual circumstance to address in here you're talking about setting policy across the board for them and to direct their stories how to how to administer that how is it no justice coming in with all due respect that's not what we're asking what we are saying is the public policy is patient safety that's the public policy here that the state of illinois wants to protect patient safety so if an employee says i don't think the hospital is protecting patient safety then they get fired or an at will employee that would be enough isn't really saying anything at all i mean if if if there are specifics there if they say look i believe that because we are reusing needles let's say we are jeopardizing patient safety then not everything he's done everything that implicates patients safety is laid out in one of the illinois regulations and in the medical malpractise case you don't have to say well this action  violated a specific illinois regulation you have to say that this action was inconsistent with sound medical policy and then it becomes a matter of debate amongst expert witnesses as to whether you did violate that pay the the  yes no but i don't know that this specific issue has been before this court before and we will win when it's when it's when the framework is we're talking about an issue of patient safety that's the question i'm talking about patient safety and this court protects the rights of the citizenry that's what we are simply asking this court to do that that's true but this court balance the extraordinary remedy of retaliatory discharge as it applies to an at will employee and that's why my first question to you earlier a half hour ago at this point  was the clear standard that is and what you're asking us to do with a clear standard you know and speaking to clear standard the whole clear mandate that we've looked at improper conduct known as a clear mandate where the alleged conduct contravenes a clear mandate of public policy but it's not necessarily a law so when we're looking in the context of this case you know just remembering is up the hospital at which polls and council did too which indicates you have to make a record you know you have them a policy to make a wrecker you're saying that this clear mandate are these j c on and i'm provisions that establish that records have to be made  certain time no that's not what i'm saying what i'm saying the clear mandate of public policy is to protect patient safety that's what i'm saying when an employee goes forward and what was the violation of patient safety in the context of your provide right and we are at a pleading stage we don't have an evidentiary record that has been fully developed so we can't establish exactly how he's violated policy so you have to admit though at least it would be if not over ruling comments here it would certainly be a pretty robust extension of our case on you know i don't i would not admit to that i think that you know justice appleton has it correct and i don't think it over on policies that are impacting the public at large it is protected that's that's what i look upon the chair and i think and i certainly understand why you why your focus you know on the importance of the whole public policy of the state of illinois of life health care but your example with justice garment of a medical malpractise case i mean are we dealing with apples and oranges there in a medical malpractise case you have a a patient being harmed in the ability to prove that that deviation from the standard of care caused the damages in a particular case here we are balancing in an extraordinary remedy for at will employees that could be fired for this let alone anything else and within the context of that it will employ when are we going through extended and recognized retaliatory just here you know we and we've outlined some of them like you said a worker's comp claim and on and on but  aren't we dealing a little bit with apples and oranges when you bring up medical malpractise no justice thomas in fact we're doing something more important we are setting out and example to protect those people so those things don't happen to them in the first place we an employee if you see a problem if you see something that could potentially jeopardize patient safety down the road you can report it without fear of retaliation that's what we are saying we are trying to protect those people supervisor or manager of private accreditation organization the nurses collective bargaining agent or a regulatory agency any activity powers here practice of a hospital that violates this act or any other law or rule that quote employee reasonably believes whether it is a regulation i do believe that it is a rule now i mean this this doesn't say that it has to be a rule of the state of illinois this is an accreditation body has a very significant world to play in the delivery of health care services in this country we're not talking about going out and speaking to somebody who's who is irrelevant jayco is highly relevant so i i know that my time is expired i certainly appreciate the quotes patients and i asked the quote to reverse the decisions are both the district and circuit courts thank you very much