author: JUSTICE RIZZI

text:
    ROMAN CABALLERO, Plaintiff-Appellee, v. ROCKFORD PUNCH PRESS AND MANUFACTURING COMPANY, INC., et al., Defendants-Appellants (Rockford Punch Press and Manufacturing Company, Inc., Third-Party Plaintiff; Vaughan Manufacturing Company, Third-Party Defendant).
    First District (3rd Division)
    No. 1 — 91—1808
    Opinion filed March 31,1993.

      James Kirk Perrin and Audrey S. Hanrahan, both of Chicago, for appellant Allen-Bradley Company.
    French, Kezelis & Kominiarek, of Chicago (Algimantas Kezelis, Russell P. Veldenz, and John A. Culver, of counsel), tor Vaughan Manufacturing Company.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, Roman Caballero, brought a personal injury action against defendant Rockford Punch Press and Manufacturing Company (Rockford). Shortly thereafter, Allen-Bradley Company (Allen) was added as a defendant. More than five years and four months after it became a defendant, Allen sought leave to file a third-party complaint for contribution against Caballero’s employer, Vaughan Manufacturing Company (Vaughan). The trial court denied Allen’s request for leave to file its third-party complaint on the basis that the statute of limitations for filing the contribution claim had expired, and Allen has appealed from the order. We affirm.

On August 21, 1984, Caballero was employed by Vaughan and was injured while working on a punch press manufactured by Rockford. On January 31, 1985, Caballero filed a personal injury action against Rockford. The two-count complaint is based on product liability and negligence. The negligence count alleges negligence in the design and manufacture of the punch press. On September 27, 1985, Caballero’s complaint was amended to add Allen as a defendant. The amended complaint alleges that Caballero was injured while employed by Vaughan, and charges Allen with product liability and negligence. The negligence count alleges that Allen negligently designed and manufactured the foot switch attached to the punch press manufactured by Rockford. On February 2, 1987, Rockford filed a third-party complaint for contribution against Vaughan.

In late 1990, the case was set for trial but the trial date was continued from time to time and reset for May 23, 1991. On February 1, 1991, Allen sought leave to file a third-party complaint for contribution against Vaughan; the third-party complaint alleges that Vaughan failed to properly train and instruct Caballero in using the punch press. Vaughan objected on the basis that the applicable statute of limitations for filing the contribution claim had expired. The trial court denied Allen leave to file its third-party complaint for the reason that the contribution claim was time barred.

Allen contends that the time for filing its third-party complaint for contribution has not expired because the time for filing its contribution claim has not expired under section 13—204 of the Code of Civil Procedure (735 ILCS 5/13—204 (West 1992)). Section 13—204 states:

“Contribution among tortfeasors. No action for contribution among joint tortfeasors shall be commenced with respect to any payment made in excess of a party’s pro rata share more than 2 years after the party seeking contribution has made such payment towards discharge of his or her liability.” 735 ILCS 5/13—204 (West 1992).

It is Allen’s position that since it has not made payment to Caballero, the two-year “limitation period of section 13—204 has not yet started to run.” Allen’s reliance on section 13—204, however, is misplaced.

Although by its terms section 13—204 bars the filing of a contribution action more than two years after payment by a joint tortfeasor, it does not by its terms provide that all contribution actions are timely so long as they are commenced before two years after payment. (Thompson v. Walters (1991), 207 Ill. App. 3d 531, 537-38, 565 N.E.2d 1385, 1389-90; Hayes v. Mercy Hospital & Medical Center (1989), 180 Ill. App. 3d 441, 446, 535 N.E.2d 1137, 1140, aff’d (1990), 136 Ill. 2d 450, 557 N.E.2d 873; Hartford Fire Insurance Co. v. Architectural Management, Inc. (1987), 158 Ill. App. 3d 515, 518, 511 N.E.2d 706, 708.) Moreover, by its terms, section 13—204 is applicable only to the filing of a contribution action after payment has been made; but section 13—204 is not applicable to the filing of a contribution action after an underlying direct action is pending. After an underlying direct action is pending, section 5 of the Joint Tortfeasor Contribution Act (740 ILCS 100/5 (West 1992)) rather than section 13—204 of the Code of Civil Procedure applies to an action for contribution. (Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, 459, 557 N.E.2d 873, 877; Laue v. Leifheit (1984), 105 Dl. 2d 191, 196, 473 N.E.2d 939, 941-42; Rummel v. Yazoo Manufacturing Co. (1991), 222 Dl. App. 3d 526, 529, 583 N.E.2d 19, 21.) Thus, despite section 13—204, a joint tortfeasor cannot file a contribution action up to two years after making payment if he fails to file the contribution action in an underlying pending direct action. (Laue, 105 Dl. 2d at 196, 473 N.E.2d at 941-42.) Also, despite section 13—204, a joint tortfeasor cannot file a contribution action up to two years after making payment when there is an expired statute of repose that is applicable to an underlying pending direct action. (Hayes, 136 Ill. 2d at 459-61, 557 N.E.2d at 877-78.) In these instances, like the present case, the controlling feature is that section 5 of the Joint Tortfeasor Contribution Act rather than section 13—204 of the Code of Civil Procedure applies.

Section 5 of the Joint Tortfeasor Contribution Act provides:

“Enforcement. A cause of action for contribution among joint tortfeasors may be asserted by a separate action before or after payment, by counterclaim or by third-party complaint in a pending action.” 740 ILCS 100/5 (West 1992).

Allen argues that if section 5 of the Joint Tortfeasor Contribution Act rather than section 13—204 of the Code of Civil Procedure is applicable here, then the time for filing its third-party complaint for contribution has not expired because the underlying direct action is still pending. Allen relies on Law v. Leifheit (1984), 105 Ill. 2d 191, 473 N.E.2d 939. In Law (105 Ill. 2d at 196, 473 N.E.2d at 941-42), the supreme court held that under section 5 of the Joint Tortfeasor Contribution Act, if there is an underlying direct action pending then the party seeking contribution must assert its claim for contribution by counterclaim or third-party action in the pending underlying direct action. Law, however, only “established a procedural requirement that actions for contribution must be filed during the pendency of the underlying direct action. [Citation.] The decision does not hold that all actions for contribution brought within the time an underlying suit is pending are timely filed.” Hayes, 136 Ill. 2d at 460, 557 N.E.2d at 877.

It is clear from a reading of Hayes and Law that whether an action for contribution is timely filed is dependant upon whether there is an underlying direct action pending. Where an underlying direct action is not pending and a joint tortfeasor makes payment to the injured claimant, an action for contribution is subject to the limitation period provided in section 13—204 (735 ILCS 5/13—204 (West 1992)). WZhere an underlying direct action is pending, an action for contribution by a joint tortfeasor is subject to the same statutes of limitations and repose that are applicable to the original claimant’s cause of action in the underlying direct action. Antunes v. Sookhakitch (1992), 146 Ill. 2d 477, 491, 588 N.E.2d 1111, 1117-18; Hayes, 136 Ill. 2d at 458-61, 557 N.E.2d at 877-78; Rummel, 222 Ill. App. 3d at 530, 583 N.E.2d at 21-22; Thompson, 207 Ill. App. 3d at 536-39, 565 N.E.2d at 1388-90; Highland v. Bracken (1990), 202 Ill. App. 3d 625, 630, 560 N.E.2d 406, 410.

The right of a contribution action, however, exists in an inchoate form from the time of the injury to the original claimant and accrues for purposes of statutes of limitations (1) when there is no underlying direct action pending and the party seeking contribution makes payment or undertakes an obligation to make payment to the injured original claimant, or (2) when the party seeking contribution is sued in fn underlying direct action and given notice of the nature of the action upon which the contribution claim is based. Rummel, 222 Ill. App. 3d at 529, 583 N.E.2d at 21; Bonfield v. Jordan (1990), 202 Ill. App. 3d 638, 642, 530 N.E.2d 412, 415; Highland, 202 Ill. App. 3d at 630, 560 N.E.2d at 409.

In the present case, Caballero was injured on August 21, 1984. The applicable statute of limitations for filing a personal injury action provides that the suit must be commenced within two years after the cause of action accrues. (735 ILCS 5/13—202 (West 1992).) On January 31, 1985, Caballero filed the underlying personal injury action naming Rockford as a defendant. On September 27, 1985, Caballero’s complaint was amended to add Allen as a defendant. The amended complaint alleges that Caballero was injured while employed by Vaughan, and charges Allen with product liability and negligence in designing and manufacturing the foot switch attached to the punch press that injured Caballero. Allen, however, did not seek leave to file a third-party complaint for contribution against Vaughan until February 1, 1991, more than five years and four months after it was sued and given notice of the nature of the action upon which the contribution claim is based. Allen therefore did not seek leave to file its contribution claim within two years after the contribution claim accrued. It follows that the applicable two-year statute of limitations for filing the contribution claim had expired.

Since Allen did not seek leave to file its third-party complaint for contribution within two years after it was sued and given notice of the nature of the action upon which the contribution claim is based, the trial court properly sustained Vaughan’s objection and properly denied Allen leave to file the third-party complaint for contribution against Vaughan.

In its order, the trial court states: “It is ordered that based on the decision in Highland v. Bracken (1990), 202 Ill. App. 3d 625, the motion for leave to file the third-party complaint is denied.” On appeal, Allen argues that if the trial court’s order is affirmed, we should make the decision in Highland prospective only. Allen’s argument is unavailing for the reason that our decision to affirm is not based solely on Highland, but rather is based on all the cases which we have cited in our opinion and the rationale expressed. Our decision is consistent with but not dependent upon Highland.

Moreover, the Highland court did not declare that its decision was a clear break with the past or that it was overruling a past precedent; nor did the Highland court establish a new principle of law that was not foreshadowed. Surely, cases such as Laue and Hayes, both of which were discussed and relied upon in Highland, were foretelling. Parenthetically, although its decisions in Laue and Hayes were significant developments in the law of contribution, the supreme court did not hold that either of those decisions applied prospectively only. In addition, Highland was followed in Rummel v. Yazoo Manufacturing Co. (1991), 222 Ill. App. 3d 526, 583 N.E.2d 19, Thompson v. Walters (1991), 207 Ill. App. 3d 531, 565 N.E.2d 1385, and Bonfield v. Jordan (1990), 202 Ill. App. 3d 638, 560 N.E.2d 412; and none of those courts held that its decision applied prospectively only. Lastly, we observe that the Highland court itself did not opt to make its decision prospective only. Under the circumstances, we reject Allen’s argument.

Next, Allen argues that “Vaughan will suffer no prejudice if Allen is granted leave to file its third-party complaint.” Vaughan counters that it would be prejudiced because the motion to file the third-party complaint was made on February 1, 1991, and the case had been set for trial in 1990 and continued from time to time and reset for trial on May 23, 1991. Vaughan argues that it would be unfair to allow the filing of an additional claim against it after the case had been set for trial and within a very short time of the new trial date.

We regard the nonexistence or existence of prejudice as an inconsequential issue since the facts relating to the expiration of the statute of limitations for filing the contribution claim are admitted by both parties; and it is not disputed that Vaughan objected to the filing of the contribution claim at its first opportunity.

In ruling on a motion to file an amendment to add a new claim, a court should consider the ultimate efficacy of the claim. If there is an objection to a motion to amend and the objection demonstrates that the amendment would not state a viable cause of action, then the motion to amend is properly denied. (Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 591, 491 N.E.2d 803, 808; Kittay v. Allstate Insurance Co. (1979), 78 Ill. App. 3d 335, 339, 397 N.E.2d 200, 203.) It follows that under the circumstances here, the trial court properly sustained Vaughan’s objection and properly denied Allen leave to file a third-party complaint for contribution against Vaughan.

Accordingly, the order of the trial court is affirmed.

Affirmed.

TULLY, P.J., and GREIMAN, J., concur.

      For the purpose of illustrating the application of the principle stated in the text, we note that if the original claimant in an underlying direct action is a minor or a person under legal disability the limitation period of the statute of limitations is merely tolled but not changed during the minority or disability. (Antunes v. Sookhakitch (1992), 146 Ill. 2d 477, 486-87, 588 N.E.2d 1111, 1115; Beck v. Yatvin (1992), 235 Ill. App. 3d 1085, 1087-90, 603 N.E.2d 558, 560; 51 Am. Jur. 2d Limitations of Actions §182 (1970); 54 C.J.S. Limitations of Actions §112 (1987).) Thus, the limitation period of the statute of limitations for a contribution action where the original claimant is a minor or a person under legal disability would be the same as for the cause of action of the original claimant, but there would be no tolling of the statute of limitations for the filing of the contribution action. This same principle would apply if the limitation period of a statute of limitations is tolled as to the original claimant because of the discovery rule that is applicable to statutes of limitations. A statute of repose, however, is different from a statute of limitations since there is no tolling of a statute of repose unless an exception is created in the particular statute of repose itself. (Cunningham v. Huffman (1993), 154 Ill. 2d 398, 405; Highland v. Bracken, 202 Ill. App. 3d at 632, 560 N.E.2d at 411.) It follows that if the original claimant in a direct underlying action is a minor or a person under legal disability, the statute of repose for a contribution action would be the same as the statute of repose that is applicable to the original claimant who is a minor or a person under legal disability. See Antunes, 146 Ill. 2d at 491, 588 N.E.2d at 1117-18.

       We point out that a statute of repose has a different purpose and therefore operates differently than a statute of limitations. In a contribution action, the statute of repose begins to run at the same time as it does for the original claimant in the underlying pending direct action. The time period for both actions begins to run from the time of the act or omission or occurrence causing the injury to the original claimant, as provided in the particular statute of repose. (Cunningham v. Huffman (1993), 154 Ill. 2d 398, 406; Hayes, 136 Ill. 2d at 458-61, 557 N.E.2d at 877-78.) The discovery rule has no application to a statute of repose unless the particular statute of repose so provides by its own terms. In Cunningham (154 Ill. 2d at 406), the court stated: “Although such a statutory scheme may result in harsh consequences, such as when a cause of action is barred even before its discovery, we reiterate that a ‘period of repose gives effect to a policy different from that advanced by a period of limitations; [the period of repose] is intended to terminate the possibility of liability after a defined period of time, regardless of a potential plaintiff’s lack of knowledge.’ (Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 422.)” In Hayes (136 Ill. 2d at 460-61, 557 N.E.2d at 878), the court stated: “Plaintiffs finally note that application of the repose period to actions for contribution effectively abolishes contribution actions in all cases where the underlying action is filed close to or on the last day of the four-year repose period. *** [T]he General Assembly perceived the medical malpractice insurance crisis as so grave that it limited to four years a patient’s right to bring an action against certain health-care providers for damages arising out of patient care. For that reason, we find it difficult to believe that the General Assembly did not also intend to bar a culpable party’s claim for contribution if not filed within the same statutory four-year period allowed an innocent plaintiff.”


source: Caselaw Access Project

author: JUSTICE COUSINS

license: Public Domain

text:
    LIEBERMAN AND KRAFF, M.D., S.C., Plaintiff-Appellant, v. JAMES DE SNICK et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—91—1407
    Opinion filed March 31,1993.
    Barack, Ferrazzano, Kirschbaum & Perlman (Robert E. Shapiro and W. Scott Porterfield, of counsel) and Katten, Muchin & Zavis (Laurence H. Lenz, Jr., of counsel), both of Chicago, for appellants.
    Stamos & Trueco, of Chicago (Michael T. Trueco and Steven J. Thompson, of counsel), for appellees.
   JUSTICE COUSINS

delivered the opinion of the court:

This appeal involves the proper interpretation of the Medical Practice Act. (Ill. Rev. Stat. 1985, ch. Ill, par. 4401 et seq.) On October 4, 1979, the plaintiffs, Lieberman & Kraff, entered into a contract to sell their medical practice to the defendant, James H. Desnick. The contract obligated the defendant to make payments to the plaintiffs based on a percentage of his gross revenue over a 20-year period. The defendant made payments from 1981 until 1985, but in 1986 he refused to make further payments. On December 17, 1986, the plaintiffs brought an action for breach of contract against the defendant. After a hearing, the circuit court held that the contract was void under the Medical Practice Act and granted summary judgment in favor of the defendants on March 28,1991.

We affirm.

Background

Plaintiff, Lieberman & Kraff, M.D., S.C., is an Illinois service corporation which provides ophthalmology services to patients. Its principals, Dr. Howard Lieberman and Dr. Manus Kraff, are board-certified ophthalmologists licensed to practice medicine in Illinois. Defendant, James H. Desnick, M.D., is also a board-certified ophthalmologist, and he is licensed to practice medicine in the States of Illinois, Indiana and Florida.

In 1961, Lieberman and Kraff began practicing together at 4958 West Irving Park Road, Chicago, Illinois. By 1980, the Irving Park practice had developed over 10,000 patient files and had become one of the largest two-physician ophthalmological practices in Illinois. In 1976, the plaintiffs opened a second office at 5600 West Addison Street in Chicago.

Desnick began working for the plaintiffs at the Irving Park office on a part-time basis in 1976. Upon completion of his residency in 1979, he was employed full time.

On October 4, 1979, the parties entered into an agreement for the sale of the plaintiff’s medical practice. The agreement provided that Lieberman and Kraff would transfer the Irving Park practice to Desnick effective January 1, 1981. The practice included all patient cards and records, office furnishings, equipment and other assets at 4958 West Irving Park Road.

Since Desnick had just completed his residency, he was unable to pay for the practice at the time of sale. Therefore, the parties agreed to amortize the payment over 20 years. The sales price was measured by a percentage of Desnick’s gross revenue; he agreed to pay 10% of his gross billings for the first 10 years, and 5% of his gross billings for the following 10 years. He did not make a down payment. Desnick agreed that if for any reason he changed his office location, he would continue to pay the percentages listed in the contract on fees generated at the new location.

Lieberman and Kraff fulfilled their obligations under the contract; on January 1, 1981, they turned the Irving Park practice over to Desnick. Lieberman and Kraff ceased to perform professional services at the Irving Park location at this time, but continued to practice elsewhere in Chicago. Since January 1, 1981, Lieberman and Kraff have had no affiliation with Desnick, either formal or informal.

In 1982, Desnick moved his office to a new location, 3445 North Central Avenue in Chicago, Illinois. In addition, in 1985, Desnick began practicing at the ambulatory surgical center located at 3101 North Harlem Avenue in Chicago, Illinois. The original practice that Desnick purchased from the plaintiffs in 1981 was a general ophthalmology and optometry practice with no surgical patients. In contrast, the ambulatory center where Desnick now works does provide surgical services. Since 1981, Desnick has opened additional medical offices in Florida, Indiana and Illinois.

Between 1981 and 1985, Desnick adhered to his bargain and made semi-annual payments to the plaintiffs. In 1986, however, Desnick ceased making payments, and he has made no further payments since that time. At the time Desnick ceased making payments, he had paid $825,685 to Lieberman and Kraff.

On December 17, 1986, the plaintiffs filed a two-count complaint against Desnick and his service corporation, James Desnick, M.D., S.C., alleging that Desnick breached his contract by refusing to make the required payments. Desnick responded by filing a counterclaim against Lieberman and Kraff alleging that he had overpaid them for the practice. Desnick also filed a third-party complaint against Howard Feinstein, the attorney who drafted the contract, for indemnification and contribution. During the litigation, Desnick admitted that he had signed the purchase agreement, received the assets of the Irving Park practice and stopped making payments to the plaintiffs after 1985.

On November 21, 1990, Desnick filed a motion for summary judgment. In that motion, Desnick asserted that the purchase agreement was void because it was an illegal fee-splitting agreement that violated the Medical Practice Act and Illinois public policy.

On March 28, 1991, the trial court granted the defendant’s summary judgment motion. The court believed that the broad language of this court’s decision in E & B Marketing Enterprises, Inc. v. Ryan (1991), 209 Ill. App. 3d 626, 568 N.E.2d 339, compelled it to reach this result. Pursuant to Illinois Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), the trial court found that there was no just reason to delay enforcement or appeal of the order. This appeal followed.

Opinion

The material facts are not in dispute. The parties admit that they entered into a contract for the sale of a medical practice. Lieberman and Kraff agreed to sell their practice to Desnick, and Desnick agreed to pay the plaintiffs a percentage of the gross fees he collected for 20 years. The sole issue raised by this appeal is whether the parties’ contract violates the Medical Practice Act and/or the public policy of this State. Accordingly, our analysis begins with an examination of the Medical Practice Act.

The Medical Practice Act is a series of regulations directed at physicians and administered by the Department of Registration and Education. It provides in relevant part:

“The Department may revoke, suspend, place on probationary status, or take any other disciplinary action as the Department may deem proper with regard to the license, certificate or state hospital permit of any person issued under this Act or under any other Act in this State to practice medicine, *** upon any of the following grounds: * * *
14. Directly or indirectly giving to or receiving from any physician, person, firm or corporation any fee, commission, rebate or other form of compensation for any professional services not actually and personally rendered. Nothing contained in this subsection prohibits persons holding valid and current licenses under this Act from practicing medicine in partnership *** or in a corporation *** or as an association *** [and] pooling, sharing, dividing or apportioning the fees and monies received ***. Nothing contained in this subsection prohibits 2 or more corporations *** from forming a partnership or joint venture of such corporations, and *** pooling, sharing, dividing, or apportioning the fees and monies received ***. Nothing contained in this subsection shall abrogate the right of 2 or more persons holding valid and current licenses under this Act to receive adequate compensation for concurrently rendering professional services to a patient and divide a fee; provided, the patient has full knowledge of the division, and, provided, that the division is made in proportion to the services performed and responsibility assumed by each.” (Ill. Rev. Stat. 1985, ch. Ill, par. 4433(14).)

Desnick contends that the contract at issue is unenforceable because it contravenes both the language of the Medical Practice Act and the public policy of this State. We agree.

Lieberman and Kraff contend that the sole purpose of the Medical Practice Act is to prohibit conduct commonly known as “fee splitting.” Fee splitting occurs when a physician refers a patient to another physician and then collects a portion of that patient’s fee. Plaintiffs maintain that they were not engaged in fee splitting or any other conduct which would violate the Medical Practice Act. Plaintiffs argue that under their agreement, the payments to be made by Desnick are consideration for the sale of the medical practice and not compensation for patient referrals. Therefore, plaintiffs maintain that their agreement does not violate the Medical Practice Act. We disagree.

We note initially that our statute does not contain the words “fee splitting.” Furthermore, nothing in the language of the statute indicates an intent to restrict the reach of the statute solely to conduct traditionally known as fee splitting. Therefore, the issue of whether or not the parties’ agreement falls within the technical definition of “fee splitting” is not relevant. The issue before this court is whether the parties' agreement violates the statute as written.

When read as a whole, the plain language of section 16 of the Medical Practice Act prohibits the sharing, pooling, dividing, or apportioning of professional fees by physicians unless the fee agreement falls within one of the enumerated exceptions. The statute specifically permits physicians who practice within the framework of a partnership, corporation or association to share fees. (Ill. Rev. Stat. 1985, ch. Ill, par. 4433(14).) The statute also permits two or more physicians who concurrently render patient care to share fees, provided that the patient has full knowledge of the fee division. (Ill. Rev. Stat. 1985, ch. Ill, par. 4433(14).) The broad language of the Medical Practice Act clearly prohibits agreements which can be characterized as fee-splitting agreements. (See E & B Marketing Enterprises, Inc. v. Ryan (1991), 209 Ill. App. 3d 626, 568 N.E.2d 339 (agreement which provided that an advertising agency would refer patients to a physician in exchange for 10% of patient billings was void).) However, the reach of the statute is not limited to “fee splitting.” The Medical Practice Act also prohibits all other fee-sharing arrangements not specifically authorized.

There can be no doubt that the parties’ agreement contemplates fee sharing. The contract obligates Desnick to pay Lieberman & Kraff first 10%, and later 5%, of all fees Desnick collects over 20 years. Furthermore, the fee arrangement does not fall within one of the exceptions to the statute. Desnick and the plaintiffs have not formed an authorized partnership, corporation, or association. Moreover, Desnick and the plaintiffs are not concurrently rendering patient care. In fact, the plaintiffs are not rendering any professional services to Desnick’s patients at all. Nonetheless, the plaintiffs assert that they are entitled to a percentage of the fees collected from all of Desnick’s patients for 20 years. In our view, this is one of the types of fee-sharing arrangements that the Medical Practice Act was designed to prohibit.

Moreover, the fact that the purposes behind the parties’ agreement may have been benign is of no relevance. The plaintiffs argue at length that they were merely trying to help a young doctor with limited resources and, at the same time, fairly value their medical practice. This court has previously made clear that where an agreement results in fee splitting, the purpose behind the agreement is irrelevant; the agreement is void. (See E & B Marketing, 209 Ill. App. 3d at 630.) The reasoning of E & B Marketing is equally applicable here.

The plaintiffs next direct our attention to several cases from other jurisdictions which allowed contracts similar to the one at issue to stand. Initially, the plaintiffs urge this court to follow Wyoming State Board of Examiners of Optometry v. Pearle Vision Center, Inc. (Wyo. 1989), 767 P.2d 969. In Pearle, the Wyoming Supreme Court held that a Wyoming statute which regulates the activities of optometrists did not bar a franchise agreement between an optical products company and an optometrist, even though the franchisor was entitled to a monthly fee of 81/2% of the optometric services and product sales. (Wyo. Stat. §33—23—110(b)(i) (1977).) We find that Pearle can provide no guidance in resolving the dispute before this court; the Wyoming Supreme Court’s interpretation of a Wyoming statute has no bearing on the proper interpretation of the Illinois Medical Practice Act.

During oral argument, the plaintiffs brought to our attention the case of Practice Management Associates, Inc. v. Orman (Fla. Dist. Ct. App. 1993), 614 So. 2d 1135, which construed the Illinois Medical Practice Act. In Orman, several chiropractors who were licensed and practicing in Illinois entered into a contract with Practice Management Associates (PMA), a Florida corporation. The contract provided that PMA would offer advice, education, and counseling to increase the growth and profits of the chiropractor practices. In return, the chiropractors agreed to pay PMA 10% of their weekly gross income or $75 per week, whichever was greater, for a period of 24 months. The contract made no reference to patient referrals or solicitations.

The Florida court of appeals upheld the contract. (Orman, 614 So. 2d 1135.) Initially, the court correctly noted that the Illinois Medical Practice Act is unlike many other State statutes because it does not specifically prohibit fee splitting for patient referrals. Moreover, the court observed that the broad language of our State statute may be subject to various interpretations. (Orman, 614 So. 2d 1135.) However, the Florida court of appeals then concluded that the Illinois Medical Practice Act was only intended to prohibit traditional fee splitting for patient referrals and did not prohibit the fee-sharing arrangement present in the PMA agreement. (Orman, 614 So. 2d 1135.) Lieberman and Kraff urge this court to follow the reasoning of Orman and uphold their contract.

We decline to follow Orman because we disagree with the Florida court’s interpretation of our Medical Practice Act. The language of our statute is very broad. Nothing in the statute indicates an intent to limit the prohibition on fee sharing to a referral context. The fact that many other State statutes prohibit fee sharing specifically in the patient referral context lends supports to our conclusion. These statutes indicate that if a State legislature intends to limit the reach of a fee-splitting prohibition to referrals, it can easily do so. The language of the statute itself is the best indication of the intent of the legislature. (Kraft, Inc. v. Edgar (1990), 138 Ill. 2d 178, 189, 561 N.E.2d 656.) Our legislature has chosen not to place such a limitation within the Medical Practice Act, and we will not read one into the statute. We hold that the parties’ agreement contravenes the provisions of the Illinois Medical Practice Act.

We turn now to the public policy considerations implicated by the parties’ agreement. As Lieberman and Kraff correctly assert, the act of selling a medical practice does not violate either the laws or public policies of this State. Plaintiffs argue that the mere fact that the purchase price for their practice was based on a percentage of future revenues should not render an otherwise lawful act unlawful. We disagree.

Although the parties’ agreement purported to be a sale, it can be construed to create what is, in effect, a silent partnership. The parties never agreed to a fixed purchase price for the practice. Instead, Desnick agreed to pay the plaintiffs a percentage of future revenues generated by patient fees for 20 years. Under the agreement, Lieberman and Kraff abandoned all responsibility for the care of their patients, but continued to profit from the fees generated by these patients. For 20 years Lieberman and Kraff expected to receive a percentage of patient fees, while completely insulating themselves from malpractice liability. As previously indicated, the Medical Practice Act does authorize physicians who practice in a partnership, corporation, or association to share fees. However, the entities which are permitted to share fees under the Medical Practice Act are those who in return share a correlative responsibility to the patients. It is our view that the Act does not contemplate that a person or entity which abrogates all ongoing responsibility to the patient should nevertheless share in the fees. Accordingly, we see no reason to insulate a transaction of this nature from the fee-sharing prohibition of the Medical Practice Act.

Affirmed.

GORDON, P.J., and McNULTY, J., concur.

      The 1987 and 1989 volumes of the Illinois Revised Statutes state that the Medical Practice Act has been repealed. However, under the Regulatory Agency Sunset Act, the repeal does not become effective until December 31, 1997. Thus, the statute, though not reported in the later volumes of the Illinois Revised Statutes, remains in effect. See Ill. Rev. Stat. 1991, ch. 127, par. 1904.9.


author: PRESIDING JUSTICE JIGANTI

text:
    RICHARD JONES, Indiv. and as Adm’r of the Estate of Marie Jones, Deceased, et al., Plaintiffs-Appellees, v. POLISH FALCONS OF CITY OF CHICAGO HEIGHTS, Defendant-Appellant (Ricky Singleton, Indiv. and d/b/a The Whole Truth Pentecostal Church, et al., Defendants).
    First District (4th Division)
    No. 1—92—1399
    Opinion filed March 31,1993.

      Lord, Bissell & Brook (Hugh C. Griffin and Kathryn C. Wyatt, of counsel) and Stern & Rotheiser (Joel W. Ostrander, of counsel), both of Chicago, for appellant.
    David S. Pochis and Alan D. Katz, both of Chicago, for appellees.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court: The plaintiffs filed a negligence action against the defendants, the Polish Falcons of the City of Chicago Heights, a fraternal organization, Reverend Ricky Singleton, and Juanita Singleton, seeking damages resulting from a fire. The plaintiffs alleged that the defendants owned and operated a building in Chicago Heights and failed to exercise ordinary care in maintaining the building, permitted the building to remain in a dangerous condition, and failed to correct building code violations. The plaintiffs further alleged that as a result of the defendants’ negligence, the building caught on fire and four individuals who resided in the building died of smoke inhalation and three additional residents were injured. The jury returned a verdict of $384,000 in favor of the plaintiffs and against all of the defendants. The plaintiffs were the co-administrators of the estates of the decedents, an injured person, and the guardians of two injured minors.

The Polish Falcons have appealed the jury verdict and claim that they did not have a duty to maintain or repair the premises at the time of the fire and that the jury was improperly instructed on their duty. The Polish Falcons also argue that they were entitled to a judgment notwithstanding the verdict or a new trial because there was no evidence to establish that their alleged negligence proximately caused the deaths or injuries.

The property at issue was a two-story brick building located in the City of Chicago Heights. The building had been used for many years as a social hall for club meetings, dances, and weddings. In 1980, the Polish Falcons were the owners of the building. In October of 1980, the City of Chicago Heights inspected the building and reported various building code violations including falling and water-damaged ceiling tiles throughout the building, hanging electrical wires, and exposed ceiling rafters and beams. The building inspector reported that the building was not fit for human habitation.

In March of 1981, the Polish Falcons entered into a real estate sales contract with Reverend Ricky Singleton, who intended to purchase the building and use it as a church. The closing was scheduled for September of 1981. The Polish Falcons allowed Singleton to take possession of the building prior to the closing date. Singleton agreed to make repairs in the building in order to comply with the building code violations. Singleton made some of the required improvements while in possession of the building. When Singleton did not make the final payment on the day of closing, the sale of the building did not take place. In November of 1981, a building inspector revisited the property and reported that Singleton was running a school for 8 to 10 students in an upstairs attic. The report indicated that there was no ventilation in the building, the attic appeared unsafe, and electrical wires were hanging from the ceiling and walls. The Polish Falcons locked Singleton out of the premises and put a padlock on the door in April or May of 1982.

In June of 1982, the Polish Falcons turned the building over to Juanita Singleton, Ricky Singleton’s mother, for $600 a month. There is no evidence of any written agreement between Juanita and the Polish Falcons. In August of 1982, Juanita’s friend, Mary Jones, and her five children moved into the building and used it as their living quarters. In September of 1982, the building inspector returned to the premises and found people living in the building. The inspector observed that the condition of the building was no different than that which he found in October of 1980. The following day, the building was posted as “[u]nfit for human habitation.” Jones and her five children continued to reside in the building, and in November of 1982, Gloria Pickens-Driver also moved into the building.

In December of 1982, the building caught on fire and burned to the ground. Marie Jones and three of her children died of smoke inhalation. Gloria Pickens-Driver and two of Marie Jones’ children suffered injuries from smoke inhalation.

In order for a plaintiff to prevail in a negligence case, the plaintiff must demonstrate that the defendant owed a duty to the plaintiff and that the defendant’s breach of that duty factually and legally caused the plaintiff’s injuries. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 140, 554 N.E.2d 223, 226.) We first address the Polish Falcons’ assertion that they did not owe a duty to the plaintiffs to maintain and repair the building.

The Polish Falcons argue that, whether as a contract seller or landlord, they had no duty to maintain and repair the premises at issue. As a seller of the property to Singleton, the Polish Falcons assert that they are not liable for injuries on the premises after transferring control of the property. We do not believe there is merit to this argument since the evidence shows that the sale of the property to Singleton was abandoned when Singleton did not make the specified payment at the September 1981 scheduled closing and the Polish Falcons placed a padlock on the premises shortly thereafter.

As landlord, the Polish Falcons contend that they had no duty to maintain and repair premises which were under the exclusive control of the alleged tenants. The Polish Falcons cite various cases for the proposition that a landlord has a duty to use ordinary care and maintain the portion of the premises over which he retains control. However, where a defective condition exists on the premises leased to a tenant and under the tenant’s control, the landlord is not liable for injuries caused by the condition. See, e.g., Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 583 N.E.2d 538; Lamkin v. Towner (1990), 138 Ill. 2d 510, 563 N.E.2d 449.

The plaintiffs counter that the Polish Falcons violated a municipal ordinance by permitting Juanita Singleton access to the building when it was in a dangerous condition and the violation of this ordinance imposed liability. The Chicago Heights ordinance reads as follows:

“It shall be unlawful to maintain or permit the existence of any dangerous or abandoned building or structure in the City, and it shall be unlawful for the owner, owner’s agent, occupant or person in custody of any dangerous building or structure to permit the same to remain in a dangerous condition, or to occupy a building or permit it to be occupied while it is or remains in a dangerous condition.” (Chicago Heights, Ill., Code of Ordinances ch. 11, art. II, §11 — 23 (19_).)

The plaintiffs cite various cases in support of their position that because the Polish Falcons were clearly in violation of the Chicago Heights ordinance, they are liable for the injuries which resulted from the violation. See, e.g., Dini v. Naiditch (1960), 20 Ill. 2d 406, 170 N.E.2d 881; Mangan v. F.C. Pilgrim & Co. (1975), 32 Ill. App. 3d 563, 336 N.E.2d 374; City of Chicago v. L.J. Sheridan & Co. (1958), 18 Ill. App. 2d 57,151 N.E.2d 451.

The Polish Falcons rejoin that in all of the plaintiffs’ cases, the landlord retained possession and control of the premises. Since the Polish Falcons did not retain possession and control of the premises, this rule of law should not apply to them.

It is well established that the violation of a statute or ordinance designed for the protection of human life or property is prima facie evidence of negligence, and that the party injured thereby has a cause of action, provided that he comes within the purview of the particular ordinance or statute, and the injury has a direct and proximate connection with the violation. Dini v. Naiditch (1960), 20 Ill. 2d 406, 170 N.E.2d 881; Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 117 N.E.2d 74.

Municipal ordinances proscribing the continued use of a structure which violates building codes have consistently been held to be designed for the protection of human life. (See, e.g., Dini v. Naiditch (1960), 20 Ill. 2d 406, 170 N.E.2d 881; Mangan v. F.C. Pilgrim & Co. (1975), 32 Ill. App. 3d 563, 336 N.E.2d 374.) Obviously, the Chicago Heights ordinance which prohibits an owner from allowing anyone to occupy a building with an uncorrected dangerous condition is designed for the protection of human life. Equally obvious is that the plaintiffs fell within the class of persons intended to be protected by the ordinance, and the plaintiffs’ harm was the kind that the ordinance was intended to prevent. At the time of the fire, the Polish Falcons were clearly the owners of the building. The Polish Falcons were in violation of various building codes since October of 1980. The Polish Falcons allowed Juanita Singleton to occupy the premises for $600 a month in June of 1982 while the building was still in a dangerous condition, as evidenced by the September 1982 report that the building was unfit for human habitation. When an owner violates an ordinance, it is not a defense that the owner was not in possession and control of the premises. Owners “can not avoid such liability on the ground that the premises were leased.” (Dini v. Naiditch (1960), 20 Ill. 2d 406, 421, 170 N.E.2d 881, 888.) As in Dini, .there is vidence that the Polish Falcons violated the ordinance and thus incurred a duty to the plaintiffs.

The Polish Falcons have also argued that the plaintiffs failed to prove proximate causation and, accordingly, contest the propriety of the trial court’s denial of their motions for judgment n.o.v. and a new trial. The Polish Falcons claim that the court should have granted their motions because the plaintiffs failed to establish that their failure to repair or replace old tiles and timbers in the building proximately caused plaintiffs’ injuries and the deaths of plaintiffs’ decedents. The Polish Falcons contend that the plaintiffs’ evidence of proximate causation is speculative and conjectural. The Polish Falcons argue that no one at trial identified the source of the smoke. Additionally, other potential materials in the building could have caused the smoke, and there was no evidence that the replacement of ceiling tiles or roof timbers would have prevented the smoke.

A judgment n.o.v. should be granted “only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.) Further, a motion for a new trial will be granted if, after weighing the evidence, the trial court determines that the verdict is against the manifest weight of the evidence. (International Meat Co. v. Bockos (1987), 157 Ill. App. 3d 810, 510 N.E.2d 1013.) It is within the sound discretion of the trial court whether to grant a motion for a new trial, and absent a clear abuse of that discretion, the decision of the trial court will remain undisturbed. Villa v. Crown Cork & Seal Co. (1990), 202 Ill. App. 3d 1082, 1089, 560 N.E.2d 969.

Both standards are difficult ones and the movant must show that there was such an overwhelming amount of evidence in his favor that the verdict against him cannot stand. Moreover, a verdict cannot be set aside merely because the jury could have determined the credibility of the witnesses differently or drawn different inferences of fact, and where credible evidence supports the verdict, the court may not say that other conclusions are more reasonable. Didier v. Jones (1978), 61 Ill. App. 3d 22, 377 N.E.2d 572.

We begin with a discussion of what the plaintiffs were required to show to rise above the level of speculation and conjecture and cross into the realm of causation.

“The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter becomes one of pure speculation or conjecture, or the probabilities are at best balanced, it becomes the duty of the court to direct a verdict for the defendant. ***
The plaintiff is not, however, required to prove the case beyond a reasonable doubt. The plaintiff need not negative entirely the possibility that the defendant’s conduct was not a cause, and it is enough to introduce evidence from which reasonable persons may conclude that it is more probable that the event was caused by the defendant than that it was not. The fact of causation is incapable of mathematical proof, since no one can say with absolute certainty what would have occurred if the defendant had acted otherwise.” (W. Keeton, Prosser & Keeton on Torts §41, at 269-70 (5th ed. 1984).)

In the instant case, it was not required that the plaintiffs prove with mathematical precision which building code violation caused the smoke. Nor were the plaintiffs required to prove that no other type of material in the building, such as carpets and couches, contributed to the smoke, or that if the building code violations had all been corrected, there would have been no injuries from smoke inhalation. The plaintiffs were only required to introduce enough evidence from which a jury could conclude that it was more probable than not that the smoke which resulted in deaths and injuries was caused by the defendants’ failure to repair the various building code violations. In short, the plaintiffs had to establish that the violation of the ordinance was a substantial factor in causing the harm. W. Keeton, Prosser & Keeton on Torts §41, at 264-69 (5th ed. 1984); Restatement (Second) of Torts §431, Comment a (1965); see also Thacker v. UNR Industries, Inc. (1992), 151 Ill. 2d 343, 603 N.E.2d 449; Hare v. Foster G. McGaw Hospital (1989), 192 Ill. App. 3d 1031, 549 N.E.2d 778.

We believe that there is sufficient evidence in the record to support the jury’s verdict. As we mentioned earlier in this opinion, there was extensive testimony from the Chicago Heights building inspector outlining three inspections which took place between October 1980 and September 1982. The inspector determined in October 1980 that the building was in “deplorable condition” and “not fit for human habitation.” The inspector described the building as having falling ceiling tiles, water-damaged ceiling tiles throughout the building, exposed wood rafters and beams, hanging electrical wires, and numerous other violations. By September of 1982, the inspector testified that the condition of the building was essentially the same and the building was posted “[ujnfit for human habitation.” A four-page building inspection report was admitted into evidence which detailed the required repairs throughout the building.

Gloria Pickens-Driver, who resided on the second floor of the building, testified that throughout the premises there were hanging ceiling tiles, exposed rotted wood, insulation coming out of the ceiling, and water-damaged wood. Jones, who also resided in the building, further testified that he observed rain coming through the ceiling, and exposed cracked and rotten timber on the ceiling.

Gloria Pickens-Driver testified that on the day of the fire, she awoke when she smelled smoke. She observed that the smoke was coming from the door that led downstairs, through the ceiling tiles, and from the wood on the floor. She woke up the other residents and called the fire department. As she tried to escape through a window, she could not catch her breath because the smoke in the air was getting worse. She became unconscious and fell from the window.

Fireman Wojslaw testified that when he arrived at the building, it was engulfed in fire. He described a “tremendous amount of black smoke” coming from certain windows. Wojslaw stated that “particles of incomplete combustion” cause the kind of heavy smoke that he witnessed. Wojslaw defined incomplete combustion as “when wood, paper, clothing, and rugs are just in a smoldering stage.” He testified that he observed a lot of old ceiling tiles and a lot of rotting timbers in a front section of the building that was not yet involved in the fire and that these were the kinds of instrumentalities that cause incomplete combustion. Other testimony established that smoke inhalation caused the plaintiffs’ injuries and deaths of the decedents.

We believe this evidence afforded a reasonable basis for the jury to conclude that it was more probable than not that the conduct of the defendant in allowing the plaintiffs to occupy the building while it remained in a clearly dangerous condition was a proximate cause of their resulting injuries and deaths from smoke inhalation. Therefore, we conclude that the court did not err in denying the defendants’ motions for a judgment n.o.v. and a new trial because the jury’s verdict was not against the manifest weight of the evidence, nor did the evidence so overwhelmingly favor the defendants that the jury’s verdict cannot stand.

Finally, the Polish Falcons have objected to plaintiffs’ jury instruction No. 21, which states:

“A landlord is not generally liable for injuries resulting from defective conditions of the premises which are not in control of the landlord.
However, where the landlord gives possession of the property to another with actual knowledge of defective or dangerous conditions which remain uncorrected, the landlord is liable to third persons for injuries caused by the defects to the same extent as if the landlord were in control or possession of the property.”

The Polish Falcons contend that the instruction does not accurately state the law as it applies to them because they were not in control or possession of the property. As we discussed in an earlier portion of this opinion which addressed the Polish Falcons’ duty under the ordinance, the Polish Falcons cannot avoid liability on the grounds that they were not in possession and control of the building. In the instant case, the jury instruction at issue depicts the liability which is imposed by virtue of the ordinance.

For all of the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

JOHNSON and CAHILL, JJ., concur.


author: PRESIDING JUSTICE McCORMICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYNE NELSON, Defendant-Appellant.
    First District (2nd Division)
    No. 1—92—0690
    Opinion filed March 30,1993.

      Mandel Legal Aid Clinic, of Chicago (Mark J. Heyrman, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Janet L. Powers, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McCORMICK

delivered the opinion of the court:

Defendant, Wayne Nelson, has received more than 10 years of psychological treatment as an inpatient following his acquittal for murder by reason of his insanity. The facility director of the facility housing defendant recommended conditional release of defendant to a halfway house which would supervise defendant while he continues treatment as an outpatient. The trial court denied the director’s recommendation, finding that defendant failed to prove by clear and convincing evidence that he would not be a danger to others. Defendant appeals the trial court’s denial of the director’s recommendation.

We reverse. Since the facility director recommended conditional release with outpatient treatment, the State should have borne the burden of proving that the recommendation was inappropriate. The State failed to present clear and convincing evidence that defendant required inpatient care.

On August 22, 1980, defendant killed his girl friend. At that time, he suffered from severe hallucinations due to paranoid schizophrenia exacerbated by substance abuse. On June 24, 1981, the trial court found him not guilty of murder by reason of insanity and committed him to the custody of the Illinois Department of Mental Health and Developmental Disabilities (DMHDD) pursuant to section 5—2—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005—2—4). Prior to 1986, defendant received treatment at Chester Mental Health Center (Chester) and the Manteno Mental Health Center (Manteno). In 1986, DMHDD transferred him to the Elgin Mental Health Center (Elgin), where he remains.

On September 27, 1991, the facility director of Elgin wrote to the trial court “to notify [it] as required by Section 1005—2—4(d) of the Criminal Code, that [defendant] is no longer subject to involuntary admission or in need of inpatient treatment.” The director attached a report detailing the basis for the recommendation of a supervised outpatient program under which defendant would live in a halfway house where he would receive medication, and he would also continue psychological treatment as an outpatient.

Despite the reminder in the director’s letter that the court had responsibility for scheduling a hearing within 30 days, pursuant to section 5—2—4(d)(3)) (Ill. Rev. Stat. 1991, ch. 38, par. 1005-2-4(d)(3)), the court did nothing prior to October 18, 1991, when defendant filed a “Motion to Set Hearing Date.” Defendant sought only a hearing to consider the director’s recommendation as required under section 5—2—4(d). He did not request release. The court granted defendant’s motion, setting hearing for November 20, 1991. The record does not show the basis for several orders resetting the hearing date. The court finally held the hearing on February 5, 1992, more than 120 days after the director sent the letter recommending conditional release.

At the outset of the hearing, defendant argued that the burden rested on the State because the director recommended conditional release. The State did not object, so the State proceeded first.

The State presented only one witness, Detective Harold Huffmann, who testified to the facts of the killing. Huffmann admitted that he had not spoken with defendant since his trial in 1981, more than a decade before the hearing, and he had no training in mental health. He offered no opinion concerning defendant’s mental state and no evidence concerning his mental state at any time since his acquittal.

The State rested. Defendant moved for a finding that the State failed to meet the burden of proof established in section 5 — 2—4(g), which provides:

“The burden of proof and the burden of going forth with the evidence rest with the State when a hearing is held to review the determination of the facility director that the defendant should be transferred to a non-secure setting, discharged or conditionally released.” (Ill. Rev. Stat. 1991, ch. 38, par. 1005—2—4(g).)

The trial court ruled that the State had “the burden of going forward,” which it met by presenting evidence of the offense. The court further ruled that under the statute “[t]he Defendant has a burden to establish by clear and convincing evidence, first of all, that there is no longer a reasonable expectation that he has the possibility of inflicting serious harm *** and that he is no longer in need of in-patient care.” The trial court denied the motion for a finding that the State failed to meet its burden of proof.

The acting deputy facility director at Elgin, Ernest Marquez, explained the process by which the facility arrives at a recommendation for a patient’s conditional release. First, the patient’s caseworker must make a recommendation to the patient’s treatment team; if the entire team agrees, it passes the recommendation to Marquez, who reviews it with a psychiatrist or psychologist who is not on the patient’s treatment team. If they concur with the recommendation, they tell the treatment team to prepare a formal recommendation packet containing more detailed information. After Marquez reviews the packet, he sends it to the facility director and the medical director at Elgin for their review. If they concur with the recommendation, they forward it to the central office of DMHDD, where the deputy director reviews it. Only if all of these mental health professionals approve of the recommended conditional release will the facility director submit the formal recommendation to the court.

Marquez described the treatment defendant received at Elgin and the treatment and supervision he would receive as an outpatient under the recommended conditional release. Marquez testified that the Grasmere Residential Center (Grasmere) agreed to accept defendant as a resident. Grasmere is a halfway house which can provide the residential supervision recommended as part of defendant’s conditional release. The staff at Grasmere would, amongst other things, assure that defendant took his medication daily. Marquez did not know of any occasion on which defendant physically injured anyone in the years he resided at Elgin.

On cross-examination, Marquez admitted that Elgin recommended unsupervised off-grounds passes for defendant in 1989. In the 2xk years following that recommendation, defendant twice verbally threatened staff members, once within a month after denial of the recommendation, and a second time in March 1990. Marquez also had some recollection, on the State’s prompting, that defendant’s records indicated that in 1984, while he was a patient at either Chester or Manteno, defendant injured another patient, and he had physical altercations with the staff at Chester in 1984. According to nursing notes, one patient at Elgin complained in March 1990 that defendant was “strong-arming” other patients for money. Marquez discounted the report because the staff found no substantiation for the complaint. There were no reports of misconduct for approximately two years before the hearing.

Dr. Bernard Block, a psychiatrist at Elgin, testified that he met with defendant formally twice a month for a year and a half prior to the hearing, and he saw him daily on the unit. In his opinion defendant suffered from paranoid schizophrenia, but the illness was in remission, and he was not dangerous. Dr. Block stressed that defendant’s medical record showed no evidence of physical assault for seven years, and no serious verbal threats for two years. Dr. Block, like Marquez, described the arrangements for continuing outpatient treatment and supervision at Grasmere. Dr. Block emphasized that defendant’s medication will be supervised and the court will receive regular reports concerning his progress. If defendant stopped taking his medication, Dr. Block would expect him to decompensate and show signs of psychosis again within a few months after medication stopped. Staff at Grasmere and the clinic treating defendant as an outpatient would see the decompensation. They would also be able to detect defendant’s abuse of drugs, were defendant to resume the drug usage which contributed to his psychosis. He expected that defendant would not resume drug use, because defendant had never tested positive for drug use at Elgin in periodic random drug tests, despite the availability of illegal drugs at Elgin, and defendant showed that he was strongly motivated to avoid illegal drugs.

On cross-examination, the State again asked about the recommendation for off-grounds passes which other doctors at Elgin made in 1989, and defendant’s subsequent threat to a staff member in March 1990. Dr. Block explained that Elgin took defendant off his antipsychotic medication prior to the incident in March 1990 because defendant experienced some adverse side effects from the medication. After the incident Elgin resumed the antipsychotic medication and there is no plan to discontinue the medication again. The State attempted to impeach Dr. Block by reading notes from defendant’s sessions with his therapist, in which defendant discussed “feeling regarding the recent violence towards the unit director.” The therapist also noted that defendant seemed “grandiose” and “guarded,” and “he can be manipulative.” Dr. Block responded that those problems do not require hospitalization and they did not make defendant dangerous; defendant could continue to work on those problems on an outpatient basis.

The judge then asked Dr. Block:

“You can’t guarantee, No. 1, that he is going to take his medicine left to his own devices in an uncontrolled environment, right?
A. Noway.
Q. You can’t guarantee he would not attack anybody?
A. No way can I guarantee that.”

Dr. Jonathan Kelly, medical director of the Isaac Ray Center, which is the outpatient clinic where defendant would receive treatment under the conditional release plan, testified that he evaluated defendant as a candidate for the center’s outpatient treatment program. He found defendant suitable for conditional release under the treatment plan recommended in the report. He explained that defendant would come to the center at least once a week for therapy, and the staff at Grasmere would give him his medication and watch him take it daily. The center would perform urine screens to assure that defendant did not resume use of illegal drugs.

On cross-examination, Dr. Kelly admitted that in 1981 he reported to the court his opinion that defendant was suitable for a closely monitored outpatient treatment program with rehabilitation for drug abuse. Dr. Kelly also admitted that after 1981, defendant on occasion behaved threateningly or violently, when he did not take his antipsychotic medication. The record includes no indication that defendant had refused to take medication at any time within seven years prior to the hearing. Dr. Kelly testified that if defendant failed to take his medication, Dr. Kelly would start intramuscular medication which would preclude any problem of lack of compliance.

The trial court reiterated its earlier holding that “the defendant must establish by clear and convincing evidence that he is entitled to *** conditional release.” The court found that the opinions of defendant’s doctors were insufficient to meet defendant’s burden of “showpng] that he is no longer a danger to himself, and, most importantly, to others.” On that basis the court ruled: “Your motion for conditional release is denied.” Defendant’s attorney immediately pointed out that he had not moved for conditional release. The court repeated: “He is petitioning for conditional discharge.” When defense counsel pointed out that the hospital requested the conditional release, the court said: “I have ruled. You can file the notice of appeal.” Defendant has remained at Elgin for another year pending this appeal.

Both parties agree that Elgin recommended defendant’s conditional release, that defendant moved to set a hearing date, and that the trial court ruled that defendant bore the burden of proving by clear and convincing evidence that he is entitled to conditional release. The parties also agree that under section 5 — 2—4(g), when the court reviews a facility director’s recommendation of conditional release, the State bears the burden of proving, by clear and convincing evidence, that the defendant should not be conditionally released. (See People v. Reed (1984), 126 Ill. App. 3d 1020, 1023, 467 N.E.2d 1158.) The parties disagree on whether the hearing in this case was a hearing to review the facility director’s recommendation.

The State contends that defendant’s motion to set a hearing date constituted a “petition” within the meaning of section 5—2—4(e), and the court held a hearing on that petition, for which the petitioner bore the burden of proof. If this is so, then the court held only the hearing required under section 5—2—4(e); the court has never held the hearing required under section 5—2—4(d) to review the hospital’s recommendation. According to section 5—2—4(g), the State must bear the burden of proof at a hearing to review a hospital’s recommendation of conditional release. The State concedes that Elgin sent the proper notice to trigger the requirement for a hearing under section 5—2—4(d), but on the State’s theory, the court entirely ignored its statutory duty of holding a hearing to review the recommendation. The statute does not allow a hearing on a defendant’s petition, pursuant to section 5—2—4(e), to defeat the requirement of a hearing on the hospital’s recommendation, pursuant to section 5—2—4(d). Therefore, even if defendant’s motion to set hearing date could be considered a “petition” under section 5—2—4(e), the trial court had a statutory duty to hold a separate hearing on the hospital’s recommendation, at which the State would bear the burden of proof.

Moreover, the State’s argument is inconsistent with the pleadings on file and the trial court’s rulings. Defendant filed no petition for conditional release, and in the motion he filed he sought as relief only the setting of a date to review the hospital’s recommendation. Defendant did not, in any pleading, request conditional release. The trial court acknowledged that the hearing was not a hearing on any petition filed by defendant when it ruled that the State had the burden of production: under the statute, if the hearing is on a defendant’s petition for conditional release, the petitioner has the burdens of production and proof; the State bears the burden of production only in hearings to review a hospital’s recommendation.

Section 5—2—4(d) required the court to hold a hearing on the facility director’s recommendation. Section 5—2—4(g) states that “[t]he burden of proof and the burden of going forth with the evidence rest with the State” at hearings required by section 5—2—4(d). (Ill. Rev. Stat. 1991, ch. 38, par. 1005—2—4(g).) The State concedes that the trial court placed the burden of proof on defendant. Defendant has established that the trial court contravened express statutory language and pertinent case law by imposing upon him the burden of proof in this hearing to review the hospital’s recommendation. See In re Commitment ofRisner (1982), 110 Ill. App. 3d 368, 442 N.E.2d 541.

The trial court apparently decided that the statute required the defendant to prove by clear and convincing evidence that he qualified for conditional release even when the hospital recommended such release. The court treated the case as though there were a strong presumption that the defendant continues to meet the criteria for inpatient treatment, which he and the hospital must overcome by clear and convincing evidence when the hospital recommends release. The statute cannot support this interpretation. Instead, the statute sets up a strong presumption that the professional staff treating the defendant is best capable of determining the proper treatment for defendant and whether he remains a danger to others. When any party, either the State or the defendant, seeks to defeat the hospital’s recommended course of treatment, that party must establish, by clear and convincing evidence, that the recommendation is inappropriate. See Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 2—4; Risner, 110 Ill. App. 3d 368, 442 N.E.2d 541.

Both parties contend that this court can find as a matter of law whether the evidence presented meets the proper burden. Although this court must defer to the trial court’s findings of fact, all of the trial court’s findings in this case, like its final finding that defendant failed to meet his burden of showing that he is not dangerous, hinge on the trial court’s mistaken belief that defendant bore the burden of proof. The trial court made no findings which did not refer to defendant’s failure to meet his burden, so there are no factual findings to which this court must defer.

The State presented no witnesses and no evidence apart from testimony regarding the killing more than 12 years ago for which defendant was found not guilty by reason of insanity. Defendant’s three witnesses, all qualified experts who evaluated defendant based on their personal interviews with him and his medical record, testified in support of Elgin’s recommendation that defendant was not a danger to himself or others as long as he took his medication, and he was no longer in need of inpatient treatment. They testified that he had not acted violently or gotten involved in any physical altercation for more than seven years, and he had not even made any verbal threats for two years. The one incident two years before the hearing in which defendant verbally threatened a staff member occurred when the hospital tried taking defendant off his medication.

The State argues that it impeached Marquez by showing that Elgin recommended off-grounds passes in 1989, and defendant “made other threats to staff members in September of 1989 and had been involved in several physical altercations prior to that time.” Marquez testified that he did not know the nature of any alleged threats, but he knew that the staff was concerned about defendant’s reaction to the court hearing in August 1989, where the trial court denied the hospital’s recommendation for off-grounds passes. The “physical altercations” were not only prior to September 1989, they were prior to 1985. The State also contends that Marquez impeached himself when he admitted that another patient complained that defendant was strong-arming other patients for money. Marquez said that the psychiatric patient’s report was unsubstantiated. The State presented no evidence to substantiate the report, no evidence of physical altercations within seven years of the hearing, and no evidence of verbal altercations within two years of the hearing.

The State contends that it impeached Dr. Block with his testimony that defendant had on some occasions in the past refused to take his medication, and when he had done so, he had become “aggressive, *** argumentative and dangerous.” The State did not seek to specify when defendant had refused medication, but Dr. Block’s other testimony clarifies that the incidents must have occurred in the first four years of defendant’s hospitalization. Dr. Block knew of no occasion in the past seven years, out of defendant’s 11 years of hospitalization, on which defendant had refused medication or gotten involved in a physical altercation. The only verbal altercation within two years occurred when the hospital took defendant off his medication; defendant had not refused the medication and took it willingly when the hospital resumed the treatment. The State did not effectively impeach the expert witnesses.

The State, like the trial court, relies most heavily on the expert’s statements that they could not guarantee that defendant would continue to take his medication and that he would not resume use of illegal drugs. As this court held in People v. Smith (1984), 126 Ill. App. 3d 5. 9. 466 N.E.2d 1226:

“Expert testimony that defendant may have difficulty adjusting to the stresses of noninstitutional life is not sufficient to sustain a finding requiring involuntary commitment. [Citation.] Neither is the possibility that defendant may not comply with the prescribed regimen of treatment [citation], nor that defendant may resume abuse of alcohol.”

The court in Smith reversed the trial court’s determination that the defendant, an insanity acquittee, had to remain in the custody of DMHDD, and remanded for determination of an appropriate plan for outpatient treatment.

Here the witnesses all testified that Grasmere would supervise defendant’s medication. If defendant avoided medication, the staff at Grasmere and the center where defendant would continue his outpatient treatment would observe the deterioration in his behavior, and they would impose intramuscular medication. The State did not in any manner impeach the witnesses’ consistent testimony that when defendant is medicated, he is not a danger to himself or others.

In Risner, the appellate court reversed a trial court order denying an insanity acquittee conditional release because the trial court had improperly imposed the burden of proof on the defendant. The court held:

“Although the burden rests on the State to establish, by clear and convincing evidence, that respondent’s release does not meet the statutory standard, the State presented no evidence tending to show that the release was inappropriate. On the contrary, we note that all testimony before the trial court evidenced respondent’s progress since his commitment to the custody of the Department and his compliance with the treatment program. The State’s witness, respondent’s psychiatrist, and the professional staff of Grasmere concurred in the facility director’s recommendation that respondent be conditionally released. Based on the record before us, there can be no finding supported by clear and convincing evidence that the proposed release plan did not provide reasonable assurances for respondent’s further treatment and for the safety of others.” (Risner, 110 Ill. App. 3d at 373.)

The court found no need to remand for retrial.

The reasoning of Risner applies with full force to the proceeding herein. The evidence as a whole, construed in the light most favorable to the State, cannot be considered clear and convincing evidence that the proposed conditional release of defendant from Elgin to Grasmere does not reasonably assure the safety of others.

At oral argument, we requested information on defendant’s current condition, in view of the long delay since the facility director recommended conditional release. The current report from Elgin indicates that defendant has not shown any dangerous behavior in the past year. He has continued to act appropriately, and he has even made some progress in dealing with his mental illness despite the trial court’s denial of the hospital’s recommendation for conditional release. Defendant’s “[c]linical team continues to view him as clinically stable,” and it still recommends his conditional release. We see no need to remand for retrial. We remand for the entry of an order permitting the hospital to conditionally release defendant “under such conditions *** as will reasonably assure the defendant’s satisfactory progress in treatment *** and the safety of the defendant or others.” (Ill. Rev. Stat. 1991, ch. 38, par. 1005—2—4(a).) We find that the proposed placement at Grasmere, with outpatient treatment at the Isaac Ray Center, is an appropriate plan for defendant’s treatment, if that placement is still available.

For the reasons stated above, the trial court’s order directing the facility director at Elgin to retain custody of defendant is reversed and the cause is remanded for proceedings consistent with this order.

Reversed and remanded with directions.

HARTMAN and SCARIANO, JJ., concur.