FIRST DIVISION

April 14, 2008

Nos. 1-05-3620, 1-05-4083 (Cons.)

ANTONIO GALVAN, Individually and on ) Appeal from the

Behalf of All Others Similarly Situated,) Circuit Court of

) Cook County.

Plaintiff-Appellant, )

)

v. )

) No. 05 CH 1800

NORTHWESTERN MEMORIAL HOSPITAL, )

Individually and on Behalf of All )

Others Similarly Situated, ) The Honorable

) Thomas P. Quinn,

Defendant-Appellee. ) Judge Presiding.

JUSTICE GARCIA delivered the opinion of the court.

The plaintiff, Antonio Galvan, brought a class action

lawsuit against the defendant, Northwestern Memorial Hospital,

and other similarly situated not-for-profit hospitals in Illinois

to challenge their practices of charging uninsured patients more

for services than they charged insured patients. Following a

motion by the defendant, the trial court dismissed the

plaintiff's complaint with prejudice pursuant to section 2-615 of

the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West

2004)). The plaintiff appeals, arguing he sufficiently pleaded a

cause of action under the Illinois Consumer Fraud and Deceptive

Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1

et seq. (West 2004)) and for unjust enrichment.
Nos. 1-05-3620, 1-05-4083 (Cons.)

2

BACKGROUND

On August 27, 2003, the plaintiff was involved in an

automobile accident and suffered serious injuries. He was taken

to the emergency room at Northwestern where he underwent surgery. 

The plaintiff remained at Northwestern for 15 days. After he was

released, Northwestern billed the plaintiff $87,033.99 for the

health care services it provided. At the time of his

hospitalization, the plaintiff was uninsured.

In an action to recover for his injuries, the plaintiff was

awarded $240,000 in a settlement agreement with the tortfeasor. 

Northwestern asserted a lien on the proceeds of the settlement in

the amount of $87,033.99. 

On January 27, 2005, the plaintiff, individually and on

behalf of "all uninsured persons who were treated at or were

admitted to Northwestern Memorial Hospital and similar not-forprofit hospitals throughout the state of Illinois from 2001 to

the present and who have been billed list or gross hospital

charges by Northwestern Memorial Hospital and similar not-forprofit hospitals," filed a two-count complaint against

Northwestern "and similarly situated not-for-profit hospitals

operating in the state of Illinois that have charged or are

charging their uninsured patients gross or list hospital

charges." Count I alleged violations of the Consumer Fraud Act. 

Specifically, it alleged Northwestern's practice of billing

uninsured patients gross or list hospital charges, which was more
Nos. 1-05-3620, 1-05-4083 (Cons.)

3

than 50% what it charged insured patients, was unfair and

deceptive. In count II, the plaintiff alleged Northwestern was

unjustly enriched by its imposition of the lien on the

plaintiff's settlement.

The Illinois Hospital Association, in its amicus brief,

explained the federal government mandates, through Medicare

regulations, all hospitals maintain a charge master list, which

outlines customary charges for each of a hospital's services and

supplies. The plaintiff alleged when Northwestern billed him for

his health care expenses, he was billed based on this list. He

maintains this violated the Consumer Fraud Act because insured

patients are generally charged significantly lower rates for the

same services. The Hospital Association explained that, in

general, insured patients are billed less than the price set in

the charge master list because their insurance companies have

contracted with the hospital. 

In May 2005, Northwestern moved to dismiss the plaintiff's

complaint, arguing the plaintiff failed to state a claim upon

which relief could be granted. On November 11, 2005, the trial

court granted Northwestern's motion. The court held because the

plaintiff was taken to Northwestern in an emergency, he could not

allege any damages proximately caused by a deceptive act. 

Further, the plaintiff could not allege unfairness because

Northwestern's policy did not violate public policy, the

plaintiff was free to challenge the amount he was charged, and
Nos. 1-05-3620, 1-05-4083 (Cons.)

4

the imposition of the lien was a benign act. The court also held

the plaintiff failed to state a claim for unjust enrichment

because he did not pay any money to Northwestern and thus could

not allege Northwestern retained a benefit to his detriment. 

The November 11, 2005, order contained the wrong case

number. On December 12, 2005, the trial court granted the

plaintiff's motion for the entry of an order bearing the correct

case number. This appeal followed. 

AMICI BRIEFS

The Service Employees International Union (SEIU) was granted

leave to file an amicus brief in support of the plaintiff. The

Illinois Hospital Association submitted an amicus brief in

support of Northwestern. These briefs outline hospital billing

procedures and policies and the effect of these policies on

workers. The amici briefs also disclose challenges to hospital

billing practices raised in different lawsuits in Illinois and

throughout the country.

ANALYSIS

The plaintiff argues the trial court erred when it granted

Northwestern's section 2-615 motion to dismiss because he

sufficiently stated a cause of action for violations of the

Consumer Fraud Act and unjust enrichment. In the alternative,

the plaintiff argues in his reply brief he should have been
Nos. 1-05-3620, 1-05-4083 (Cons.)

1 There is no need to address this contention, as issues not

raised in the main brief are waived. See Stephens v. Industrial

Comm'n, 284 Ill. App. 3d 269, 276 (1996) (argument raised for the

first time in the reply brief in violation of Rule 341(g) (155

Ill. 2d R.341(g)) need not be addressed).

5

granted leave to amend his complaint.1 A section 2-615 motion to

dismiss challenges the legal sufficiency of a complaint. 735

ILCS 5/2-615 (West 2004); First Midwest Bank, N.A. v. Stewart

Title Guaranty Co., 218 Ill. 2d 326, 334, 843 N.E.2d 327 (2006). 

In the context of a section 2-615 motion, "[t]he central inquiry

is whether the allegations of the complaint, when considered in

the light most favorable to the plaintiff, are sufficient to

state a cause of action relief may be granted on." Hill v. PS

Illinois Trust, 368 Ill. App. 3d 310, 312, 856 N.E.2d 560 (2006). 

A court should not dismiss a complaint on the pleadings "unless

it clearly appears that no set of facts can be proved under the

pleadings which will entitle the plaintiff to recover." Bryson

v. News America Publications, Inc., 174 Ill. 2d 77, 86-87, 672

N.E.2d 1207 (1996). We review the trial court's dismissal of a

complaint de novo. First Midwest Bank, 218 Ill. 2d at 334.

In order to state a claim, a plaintiff must allege facts

sufficient to bring a claim within a legally cognizable cause of

action. City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d
Nos. 1-05-3620, 1-05-4083 (Cons.)

6

351, 368, 821 N.E.2d 1099 (2004). A court considering a motion

to dismiss for failure to state a claim will "disregard the

conclusions that are pleaded and look only to well-pleaded facts

to determine whether they are sufficient to state a cause of

action against the defendant." Beretta, 213 Ill. 2d at 368. If

the facts are not sufficient, a court will grant a defendant's

motion to dismiss. Beretta, 213 Ill. 2d at 368.

A. Consumer Fraud Act

The plaintiff maintains he adequately pleaded Northwestern's

practice of billing uninsured patients at its list or gross rate,

which was more than 50% what it charged insured patients, was

unfair and deceptive. "The Consumer Fraud Act is a regulatory

and remedial statute intended to protect consumers, borrowers,

and business persons against fraud, unfair methods of

competition, and other unfair and deceptive business practices." 

Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403, 416-17,

775 N.E.2d 951 (2002). The Consumer Fraud Act provides:

"Unfair methods of competition and

unfair or deceptive acts or practices,

including but not limited to the use or

employment of any deception, fraud, false

pretense, false promise, misrepresentation or

the concealment, suppression or omission of

any material fact, with intent that others

rely upon the concealment, suppression or
Nos. 1-05-3620, 1-05-4083 (Cons.)

7

omission of such material fact, *** in the

conduct of any trade or commerce are hereby

declared unlawful whether any person has in

fact been misled, deceived or damaged

thereby." 815 ILCS 505/2 (West 2004).

Thus, under the Act, a plaintiff must plead three elements:

(1) an unfair or deceptive act or practice by the defendant; (2)

the defendant's intent that the plaintiff rely on the unfair or

deceptive practice; and (3) the unfair or deceptive practice

occurred in the course of conduct involving trade or commerce. 

Robinson, 201 Ill. 2d at 417. In addition, "a valid claim must

show that the consumer fraud proximately caused plaintiff's

injury." Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 501, 675

N.E.2d 584 (1996).

1. Unfairness

The plaintiff alleges Northwestern's practice of charging

uninsured patients "artificially inflated" gross or list rates

for services was unfair because if Northwestern collected the

gross or list rates from uninsured patients, the hospital would

receive an unconscionable 50% profit. The plaintiff also argued

it was unfair that Northwestern gave patients with insurance

significant discounts that uninsured patients did not get. 

Northwestern argues the plaintiff's unfairness claim fails for

three reasons: (1) the plaintiff did not plead actual profits;

(2) Northwestern's practice of charging uninsured patients higher
Nos. 1-05-3620, 1-05-4083 (Cons.)

8

prices, by itself, was insufficient to establish unfairness; and

(3) Northwestern had legitimate reasons for charging uninsured

patients more than it charges insured patients. 

To the extent the plaintiff's unfairness claim is based on

Northwestern making a substantial profit from uninsured patient

care, the claim must fail because the plaintiff did not allege

Northwestern actually profited from charging these rates, much

less that it received an unconscionable profit. The plaintiff's

complaint, instead, was couched in the language of potential

profit:

"19. According to a report published by

the Service Employees International Union

('SEIU'), Illinois hospitals routinely charge

the uninsured list or gross charges for

medical services that are up to double the

actual cost of providing health care and

Northwestern charges the uninsured over

double the net price that an insured patient

would be charged.

20. The uninsured have become a profit

center for Northwestern. According to the

SEIU Hospital Accountability Project,

Northwestern had a potential profit of 50%

per uninsured discharge in 2001.

* * *
Nos. 1-05-3620, 1-05-4083 (Cons.)

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28. Northwestern and the Defendant

Class through their deceptive and unjust

assessment of the gross overcharges to the

uninsured reaps thousands of dollars each

year from the uninsured residing in Illinois,

including Plaintiff and the putative

plaintiff class, by willfully and

surreptitiously assessing their grossly

overstated list charges on the self-pay or

uninsured patients." (Emphasis added.)

The plaintiff also argued the practice of charging uninsured

patients rates of more than 50% of that charged to insured

patients was unfair under the Consumer Fraud Act. When measuring

unfairness, courts consider three factors: "(1) whether the

practice offends public policy; (2) whether it is immoral,

unethical, oppressive, or unscrupulous; [and] (3) whether it

causes substantial injury to consumers." Robinson, 201 Ill. 2d

at 417-18. All three criteria do not need to be satisfied to

support a finding of unfairness. "'A practice may be unfair

because of the degree to which it meets one of the criteria or

because to a lesser extent it meets all three.'" Robinson, 201

Ill. 2d at 418, quoting Cheshire Mortgage Services, Inc. v.

Montes, 223 Conn. 80, 106, 612 A.2d 1130, 1143-44 (1992).

Charging an unconscionably high price, by itself, is

generally insufficient to establish a claim for unfairness. 
Nos. 1-05-3620, 1-05-4083 (Cons.)

2 The plaintiff did not raise the charity-care argument in

his complaint or his brief. The plaintiff never alleged he was

unable to pay for his services or he was entitled to charity

care.

10

Instead, the "defendant's conduct must [also] violate public

policy, be so oppressive as to leave the consumer with little

alternative except to submit to it, and injure the consumer." 

Robinson, 201 Ill. 2d at 418. 

In this case, the plaintiff argues Northwestern's practice

violates public policy because by charging the uninsured gross or

list rates, knowing most of these patients cannot pay that

amount, hospitals can justify collecting higher rates from

private insurers and the government, and hospitals can exaggerate

the value of the charity care they provide. The SEIU maintains

this practice violates public policy because Northwestern and

other not-for-profit hospitals are exempt from taxation based on

being institutions of public charity. As such, the hospitals

have a legal duty to provide free and reduced-price care to those

unable to pay. Charging uninsured patients more than other

patients offends this policy.2

The plaintiff maintains this practice is oppressive because,

as an emergency room patient, he had no choice but to accept the

medical services provided to him at the inflated rates. He

points out he was taken to Northwestern's emergency room
Nos. 1-05-3620, 1-05-4083 (Cons.)

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following an automobile accident, he needed immediate medical

attention, and he had no meaningful choice as to which hospital

he was taken to. He argues he was harmed by Northwestern's

collection efforts, which included a lien on one-third of his

settlement funds. 

The plaintiff points to an order by Circuit Court Judge

Stuart A. Nudelman, denying Our Lady of the Resurrection Medical

Center's motion to dismiss a similar claim in Servedio v. Our

Lady of the Resurrection Medical Center, No. 04L3381 (Cir. Ct.

Cook Co., January 6, 2006). In that case, the plaintiffs sued

Resurrection for violations of the Consumer Fraud Act, breach of

contract, violations of the Illinois revenue code, and

unconscionable conduct. The plaintiffs were all uninsured

patients who presented at the emergency room at Resurrection. 

After services were rendered, none of the plaintiffs were able to

pay their hospital bills. To collect for its services,

Resurrection sued Servedio and sent collection notices to the

other plaintiffs. The plaintiffs then sued Resurrection. 

According to the trial court's order, the plaintiffs

specifically alleged the rates Resurrection charged to insured

patients were the de facto rates for services and uninsured

patients were charged rates significantly higher than those

de facto rates. In fact, the plaintiffs alleged they were

charged double and triple the amounts charged to insured

patients. The plaintiffs argued this practice was unfair under
Nos. 1-05-3620, 1-05-4083 (Cons.)

12

the Consumer Fraud Act because it violated Illinois' public

policy that hospitals should provide health care to low income

individuals, it was oppressive because the plaintiffs were in a

position in which they had no reasonable alternative but to

accept medical services and agree to pay, and it was injurious

because if the plaintiffs and other low income uninsured patients

were charged exorbitantly high fees for medical services, they

would likely forgo medical attention when it was needed. Based

on these allegations, the trial court found the plaintiffs

sufficiently pleaded a cause of action under the Consumer Fraud

Act. See also Cristiani v. Advocate Health Systems Care Network,

Inc., No. 03L14635 (Cir. Ct. Cook Co., January 27, 2006) (in a

similar motion to dismiss, Circuit Court Judge Barbara J. Disko

denied Advocate's motion to dismiss a claim under the Consumer

Fraud Act, finding a 50% cost reduction for uninsured patients

"could constitute a violation of the Consumer Fraud Act"); but

compare with Schmitt v. St. Elizabeth's Hospital Sisters of the

Third Order of St. Francis, No. 05L0186 (Cir. Ct. St. Clair Co.,

December 16, 2005) (similar complaint dismissed because

"Plaintiff has failed to allege that he has paid any amount to

St. Elizabeth's, or even offered to pay any amount, or that St.

Elizabeth's has undertaken any collection activities against him,

he has no actual damages, and thus cannot state a claim under the

[Consumer Fraud Act]").

Northwestern maintains the only "clear-cut" circumstance in
Nos. 1-05-3620, 1-05-4083 (Cons.)

13

which a high price would violate the Consumer Fraud Act is where

the seller violates public policy by giving little or no services

for the price paid. Northwestern cites two cases as authority:

People ex rel. Hartigan v. Knecht Services, Inc., 216 Ill. App.

3d 843, 854-56, 575 N.E.2d 1378 (1991) (explaining high prices

alone are generally insufficient to establish unfairness under

the Consumer Fraud Act, a party must also show the practice

violates public policy, is immoral, unethical, or oppressive, and

harms consumers); People ex rel. Fahner v. Hedrich, 108 Ill. App.

3d 83, 90, 438 N.E.2d 924 (1982) (practice of charging a $1,500

sales commission when there was little or no service in

connection with the sale was unfair under the Consumer Fraud Act

because it violated public policy, the consumers were in a

position in which they had no reasonable alternative but to pay,

and consumers were injured where they were forced to pay a $1,500

fee for little or no services). In this case, because the

plaintiff received numerous medical procedures and therapies

during his 15-day stay at Northwestern, he could not allege

unfairness based on high prices.

Northwestern also argues it has a legitimate reason for

charging uninsured patients more than it charges insured

patients. Specifically, with insured patients, Northwestern

knows it will be paid promptly for the services it provided;

thus, it has assurance it will be paid. Further, by contracting

with insurance companies for discounted rates, Northwestern can
Nos. 1-05-3620, 1-05-4083 (Cons.)

14

legitimately expect insured members to use its services. In

support of this argument, Northwestern cites Laughlin v. Evanston

Hospital, 133 Ill. 2d 374, 550 N.E.2d 986 (1990), for the

proposition that our supreme court has rejected the claim that

volume discounts given by health care providers to other parties

are unfair to those who do not receive such discounts. 

In Laughlin, the plaintiffs were third-party payors who

indemnified or insured patients for the cost of hospital

services. Every plaintiff was charged the same amount for

services provided by the defendant hospitals. However, one

payor, Illinois Blue Cross Plan, had a contract with the

hospitals whereby any amount that Blue Cross paid that exceeded

105% of a hospital's actual cost would be returned to Blue Cross

at the end of the year. In 1982, that amount was $50 million. 

Laughlin, 133 Ill. 2d at 376-77. 

The plaintiffs sued these hospitals for violations of the

Antitrust Act (740 ILCS 10/1 et seq. (West 2004)) and the

Consumer Fraud Act. The hospitals moved to dismiss the

complaint. The court dismissed the Antitrust Act count, holding:

"Price discrimination of the character complained of by the

plaintiffs, that is, discrimination which is not predatory, which

is not the result of a concerted refusal to deal or a conspiracy

and the basis of which is simply that the plaintiff did not

obtain services at a lesser price bargained for by a competing

buyer, is, in and of itself, not sufficient to state a cause of
Nos. 1-05-3620, 1-05-4083 (Cons.)

15

action under [the Antitrust Act]." Laughlin, 133 Ill. 2d at 388. 

Concerning the unfairness claim under the Consumer Fraud

Act, the court held the reach of the Consumer Fraud Act is

"limited to conduct that defrauds or deceives consumers or

others." Laughlin, 133 Ill. 2d at 390. Further, the court held,

"To construe the Consumer Fraud Act to give a cause of action for

discriminatory pricing that the legislature refused to give under

the Antitrust Act would be incongruous." Laughlin, 133 Ill. 2d

at 391. 

While the holding in Laughlin is informative, the plaintiff

raises public policy arguments and allegations of oppressiveness

that were not relevant in that case. Northwestern argues the

public policy favoring charity care is not relevant in this case

(nor was it raised by the plaintiff) because the plaintiff made

no allegations he qualified for charity care. Further,

Northwestern argues the plaintiff's oppressiveness argument is

unpersuasive because the plaintiff did not and cannot allege he

was required to pay anything as a condition of Northwestern

treating him. Further, the lien imposed in the settlement

agreement was not oppressive where Northwestern performed

services and the plaintiff failed to pay for those services.

The plaintiff's claim of unfairness is founded on the

oppressiveness of the medical charges by Northwestern and his

lack of meaningful choice "but to pay [Northwestern]'s exorbitant

rates." The plaintiff cites Central Standard Life Insurance Co.
Nos. 1-05-3620, 1-05-4083 (Cons.)

16

v. Davis, 10 Ill. App. 2d 245, 255, 134 N.E.2d 653 (1956) for the

definition of oppressive as "unjustly severe" or "unreasonably

burdensome." We are unpersuaded that either describes

Northwestern's billing practices here. 

Underlying the plaintiff's claim that charging uninsured

patients a higher price amounts to oppressive pricing is a

suggestion that the insured and uninsured patients are similarly

situated. They are not. The plaintiff ignores the obvious

difference between an insured patient and one uninsured. An

insured patient by definition has medical insurance either paid

by him directly or by his employer as a benefit. In return for

the insurance premiums, his insurance company contracts with a

hospital for medical services at a reduced rate. The contract

benefits the hospital because payment is guaranteed. There is no

such guarantee from uninsured patients. The reality is an

insured patient comes into the hospital with expenses already

incurred for medical coverage. That his insurance company has

been able to negotiate a reduced rate for medical services from

the hospital is simply a product of doing business. There is no

suggestion the billing contract negotiated between Northwestern

and a particular insurance company is negotiated at anything

other than at arm's length. That an uninsured patient is charged

a higher rate for medical services is the flip side of the

revenue-stream coin. Those that have incurred the expense of

medical insurance guaranteeing payment to a medical services
Nos. 1-05-3620, 1-05-4083 (Cons.)

17

provider receive reduced billing rates; those that have incurred

no expense to guarantee payment to a medical services provider

must bear the full cost for those services. While the plaintiff

contends the rate he was charged was "exorbitant" and unrelated

to the actual costs of the providing the medical services

received, as a court of law we find no basis to address such

arguments for "unfairness" as it would require we examine the

billing practices in their entirety for both insured and

uninsured patients, for each is a part of the revenue stream; we

cannot ignore one and examine only the other. As the amicus

Illinois Hospital Association correctly contends, the contentions

of the plaintiff should be directed to the deliberative process

of the legislature.

We agree with the trial court; the plaintiff has failed to

make out a case for unfairness in Northwestern's billing

practices.

2. Deception

The plaintiff also argues his complaint adequately set out a

deception claim under the Consumer Fraud Act because Northwestern

concealed material facts from him and other uninsured patients. 

Specifically, the plaintiff argues Northwestern failed to

disclose it charged uninsured patients at least double what it

charged insured patients. The trial court held because of the

emergency nature of the plaintiff's admission to Northwestern, he

could not allege any damages proximately caused by the
Nos. 1-05-3620, 1-05-4083 (Cons.)

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concealment or omission of any facts. 

As outlined above, to state a cause of action under the Act,

a plaintiff must plead four elements: (1) a deceptive act or

practice by the defendant; (2) an intent by the defendant that

the plaintiff rely on the practice; (3) the deceptive practice

occurred in the course of conduct involving trade or commerce;

and (4) the practice proximately caused the plaintiff's injury. 

Robinson, 201 Ill. 2d at 417; Connick, 174 Ill. 2d at 501.

An omission or concealment of a material fact in the conduct

of trade or commerce constitutes consumer fraud. 815 ILCS 505/2

(West 2004); Connick, 174 Ill. 2d at 504. "A material fact

exists where a buyer would have acted differently knowing the

information, or if it concerned the type of information upon

which a buyer would be expected to rely in making a decision

whether to purchase." Connick, 174 Ill. 2d at 505. Concealment

is only actionable where it is employed as a device to mislead. 

Pappas v. Pella Corp., 363 Ill. App. 3d 795, 799, 844 N.E.2d 995

(2006).

In a cause of action for fraudulent misrepresentation, a

plaintiff must plead he was actually deceived by the

misrepresentation in order to establish proximate causation. 

Pappas, 363 Ill. App. 3d at 804. In other words, under the

Consumer Fraud Act, deceptive advertising could not be the

proximate cause of the plaintiff's damages unless the plaintiff

was deceived by the advertising. Pappas, 363 Ill. App. 3d at
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19

804. However, in a case where the plaintiff alleges consumer

fraud based on concealment of facts, a plaintiff need only allege

he relied on the defendant's concealment by silence. "Requiring

anything more would eviscerate the spirit and purpose of the

Consumer Fraud Act." Pappas, 363 Ill. App. 3d at 805. In

Pappas, the plaintiff alleged the defendant, even though it was

aware of a material defect in a product, never notified its

customers that the product was defective. The court held the

plaintiff, in effect, alleged he relied on the plaintiff's

silence, which was sufficient to plead proximate cause. Pappas,

363 Ill. App. 3d at 805. 

In this case, the plaintiff pleaded: 

"15. Northwestern and the Defendant

Class do not disclose the disparate cost

treatment to the uninsured in any of its

promotional materials while touting its

provision of services to charities and the

poor.

* * *

27. There is no meaningful disclosure

of these discrepancies in charges to the

uninsured. Northwestern and the Defendant

Class are instead deceptively and unlawfully

embedding these gross charges set forth in

the billing statement sent to the uninsured
Nos. 1-05-3620, 1-05-4083 (Cons.)

20

in a manner that was deliberately calculated

by Northwestern and the Defendant Class to

conceal its gross overcharges from the

uninsured.

28. Northwestern and the Defendant

Class through their deceptive and unjust

assessment of the gross overcharges to the

uninsured reaps thousands of dollars each

year from the uninsured residing in Illinois,

including Plaintiff and the putative

plaintiff class, by willfully and

surreptitiously assessing their grossly

overstated list charges on the self-pay or

uninsured patients. 

* * *

35. The uninsured have little choice as

to which hospital they enter, particularly in

an emergency. They cannot 'shop around' for

the best prices. In Cook County in 2001, the

emergency room was the referral source for a

higher proportion of self-pay patients (67%)

than for patients with health insurance

(45%). A higher proportion of self-pay

patient admissions (69%) were deemed to be

emergencies than were insured patient
Nos. 1-05-3620, 1-05-4083 (Cons.)

21

admissions (50%). See the Hospital

Accountability Project of the Service

Employees Union report entitled: Why the

Working Poor Pay More: A Report on

Discriminatory Pricing of Health Care. 

* * *

62. Defendant's actions as alleged

herein are unfair and deceptive, and

constitute fraud, misrepresentation and the

concealment, suppression and omission of

material facts with the intent that Plaintiff

and the Plaintiff Class would rely upon the

fraudulent misrepresentation, concealment,

suppression and omission of such material

facts, all in violation of the Illinois

Consumer Fraud Act.

63. By reason of the premises, and as a

proximate cause thereof, Plaintiff and the

Plaintiff Class have been injured and are

thus entitled to damages from Northwestern,

for its own fraudulent billing practices and

for its conduct with respect to the

uninsured, and all other relief prayed for in

this Class Action Complaint." 

The plaintiff adequately pleaded that Northwestern concealed
Nos. 1-05-3620, 1-05-4083 (Cons.)

22

information about its rates and billing practice from him. 

However, he did not plead that he suffered any damages from the

concealment, or that any alleged damages were proximately caused

by the concealment. As Northwestern points out, the plaintiff

never alleged he would have been charged a different rate had he

been "informed of the existence of discounted rates for certain

insured patients" or he would have sought care elsewhere if

Northwestern had disclosed this information to him. In fact, he

pleaded the existence of the practice at Northwestern and other

not-for-profit hospitals of charging uninsured patients more. 

Further, the plaintiff never paid anything for the medical

services he received, nor did he plead Northwestern instituted

any collection action other than asserting a lien on his

settlement agreement. Finally, because the plaintiff was taken

to Northwestern in an emergency situation so that care would have

been provided before any discussions of rates or payments were

had, the plaintiff makes no claim of reliance on Northwestern's

rates and billing practice for the medical services he received.

The trial court properly dismissed count I of the

plaintiff's complaint.

II. Unjust Enrichment 

In count II of his complaint, the plaintiff alleged

Northwestern was unjustly enriched when it asserted a lien

against the plaintiff's personal injury settlement. Although the

trial court found the plaintiff suffered a detriment, it
Nos. 1-05-3620, 1-05-4083 (Cons.)

23

dismissed this count, holding the plaintiff never pleaded that

Northwestern retained a benefit. 

To state a cause of action for unjust enrichment, a

plaintiff must allege the defendant unjustly retained a benefit

to the plaintiff's detriment, and the defendant's retention

violated the fundamental principles of justice, equity, and good

conscience. HPI Health Care Services, Inc. v. Mt. Vernon

Hospital, Inc., 131 Ill. 2d 145, 160, 545 N.E.2d 672 (1989). 

The plaintiff argues Northwestern's lien on his settlement

award was a property interest and, thus, Northwestern retained a

benefit. Northwestern argues the lien was unadjudicated and so

long as it remains unadjudicated, it has retained no benefit.

Section 10 of the Health Care Services Lien Act (Lien Act)

(770 ILCS 23/10(a) (West 2004)), provides: 

"Every health care professional and

health care provider that renders any service

in the treatment, care, or maintenance of an

injured person *** shall have a lien upon all

claims and causes of action of the injured

person for the amount of the health care

professional's or health care provider's

reasonable charges ***."

Once a health care provider asserts a lien, a trial court will

adjudicate the rights of the interested parties and enforce the

lien after petitioned by either the injured party or the health
Nos. 1-05-3620, 1-05-4083 (Cons.)

3 The Hospital Lien Act was repealed and replaced by the

Lien Act in 2003. 

24

care provider. 770 ILCS 23/30 (West 2004).

A lien is a "legal claim upon the property recovered as

security for payment of [a] debt." In re Estate of Cooper, 125

Ill. 2d 363, 369, 532 N.E.2d 236 (1988). In other words, "when a

hospital attaches a lien upon an accident victim's recovery, it

fashions for itself a type of property interest in any assets

constituting the recovery, because a lien is a property

interest." Memedovic v. Chicago Transit Authority, 214 Ill. App.

3d 957, 959, 574 N.E.2d 726 (1991). A lien can come into

existence only when a recovery is made, because absent a

provision to the contrary, a lien is created only when there is

property to which it may attach. Cooper, 125 Ill. 2d at 369. 

"Under the Hospital Lien Act, the lien is created only when the

injured person has a 'sum paid or due' him. [Citation.] In the

case of a compromise settlement, the lien attaches to 'any money

or property which may be recovered.' [Citation.]" Cooper, 125

Ill. 2d at 369.3 Cooper and Memedovic establish a lien is a type

of property interest, but until a trial court adjudicates the

rights of the parties and enforces the lien, the health care

provider, in this case Northwestern, has retained no benefit. 

The trial court, therefore, properly dismissed Count II as

well. 
Nos. 1-05-3620, 1-05-4083 (Cons.)

25

CONCLUSION

For the reasons stated above, the decision of the circuit

court of Cook County is affirmed.

Affirmed.

WOLFSON, J., concurs.

JUSTICE ROBERT E. GORDON, specially concurring:

I agree with the majority that the trial court properly

dismissed plaintiff’s complaint with prejudice pursuant to

section 2-615 of the Code of Civil Procedure (CODE) 735 ILCS 5/2-

615 (West 2004).

In order for a hospital to collect a bill for services

rendered they must show that the bill is the fair, usual and

customary charge for the services received at area hospitals at

the time of the charge. Victory Memorial Hospital vs. Rice, 143

Ill. App. 3d 621 (1986). In re the Estate of Ahbergo v. Hull, et

al., 275 Ill. App. 3d 439 (1995). Therefore, a trial court will

adjudicate a hospital lien on the same basis. 770 ILCS 23/30

(West 2004). The amicus brief filed by the Service Employees

International Union (SEIU) outlines hospital billing procedures

and policies. The Illinois Hospital Association, in its amicus

brief, explains how all hospitals maintain a master charge list

outlining the customary charge for each hospital charge based on

what other hospitals in the area are charging for each service

they provide. Plaintiff admits he was billed for his health care

expense based on this list. If a hospital individually enters in
Nos. 1-05-3620, 1-05-4083 (Cons.)

26

a contract with a health care insurance company to bill their

insured at a reduced rate, there is nothing in the law that

prohibits that conduct under the theory that it violates the

Illinois Consumer Fraud and Deception Business Provision Act or

under the theory for unjust enrichment as noted by the majority

in their opinion.
Nos. 1-05-3620, 1-05-4083 (Cons.)

27

REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

_________________________________________________________________

ANTONIO GALVAN, Individually and on 

Behalf of All Others Similarly Situated,

Plaintiff-Appellant,

v.

NORTHWESTERN MEMORIAL HOSPITAL,

Individually and on Behalf of All 

Others Similarly Situated,

Defendant-Appellee.

________________________________________________________________

Nos. 1-05-3620, 1-05-4083 (Cons.)

Appellate Court of Illinois

First District, First Division

Filed: April 14, 2008

_________________________________________________________________

JUSTICE GARCIA delivered the opinion of the court.

Wolfson and R. Gordon, JJ., concur.

_________________________________________________________________

Appeal from the Circuit Court of Cook County

Honorable Thomas P. Quinn, Judge Presiding

_________________________________________________________________

For DEFENDANT - George F. Galland, Jr.

APPELLEE Miner, Barnhill & Galland, P.C.

14 W. Erie Street

Chicago, IL 60610

David S. Rosenbloom

McDermott, Will & Emery

227 W. Monroe Street

Chicago, IL 60606

For PLAINTIFF - Marvin A. Miller, Dom J. Rizzi, Lori A. Fanning

APPELLANT Miller, Faucher and Cafferty, LLP
Nos. 1-05-3620, 1-05-4083 (Cons.)

28

30 N. LaSalle Street, Suite 3200

Chicago, IL 60602

Dominic Fichera

Fichera & Miller

415 North LaSalle Street, Third Floor

Chicago, IL 60610

AMICUS CURIAE Kathleen T. Pankau, Thaddeus J. Nodzenski

BRIEF OF THE Illinois Hospital Association

ILLINOIS HOSPITAL 1151 East Warrenville Road

ASSOCIATION P.O. Box 3015

Naperville, IL 60566

AMICUS CURIAE Craig Becker

BRIEF OF THE Service Employees International Union

SERVICE EMPLOYEES 25 East Washington Street

INTERNATIONAL Suite 1400

UNION Chicago, IL 60602