author: JUSTICE UNVERZAGT

text:
    HANS EVERS, Plaintiff-Appellant, v. EDWARD HOSPITAL ASSOCIATION, d/b/a Edward Hospital, et al., Defendants-Appellees.
    Second District
    No. 2—92—1204
    Opinion filed July 9, 1993.
    Rehearing denied August 20, 1993.

      Martin B. Lowery, of Naperville, for appellant.

      Laura R. Keidan and Michael R. Callahan, both of Katten, Muchin & Zavis, of Chicago (Lawrence H. Lenz, Jr., of counsel) for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Hans Evers, M.D., appeals from a circuit court of Du Page county judgment which dismissed his complaint in its entirety and denied his motion for sanctions. Defendants are the Edward Hospital Association (EHA); EHA’s board of directors (Board); EHA’s president and chief executive officer, Pamela K. Meyer (Meyer); and the Edward Hospital District (EHD), a municipal corporation (collectively defendants). For convenience, we will use “hospital” to refer to EHA, Meyer or other EHA officials when the individual identity of the actor is immaterial.

The suit arose after: (1) the hospital declined to evaluate plaintiff’s application for medical staff membership because the hospital deemed the application incomplete; (2) the hospital determined that plaintiff was not entitled to any hearings or appellate review on the matter; and (3) the hospital denied plaintiff’s request for a copy of the credentials file related to plaintiff’s application.

On appeal, plaintiff contends that: (1) the trial court erred in dismissing his complaint; (2) the trial court erred in staying portions of plaintiff’s discovery requests; and (3) the trial court erred in ruling that plaintiff’s motion for sanctions was moot. We will consider plaintiff’s additional contentions regarding property or liberty interests and dissemination of information in the credentials file in conjunction with the foregoing contentions.

The facts, as gleaned from the pleadings, are as follows. Plaintiff, a physician duly licensed to practice medicine in the State of Illinois, applied for appointment to the hospital medical staff by letter and attachments, including an application form, dated February 1, 1990. Plaintiff practices medicine in Naperville. Edward Hospital is located in Naperville and is the only hospital in Naperville.

The application form which plaintiff submitted indicated that as part of the application process the hospital would have to evaluate plaintiff’s professional competence and other qualifications. The application form also provided:

“It will be necessary to investigate my professional training, experience, and professional conduct and judgment; accordingly, it will be necessary to inquire of other persons and institutions, including medical schools, hospitals, medical societies, professional liability insurance carriers, individual practitioners, and other appropriate sources, as to information regarding my qualifications. *** I recognize that all evaluations, inquiries and responses to inquiries regarding my professional competence and qualifications shall be carried out in a professional and ethical manner, with due regard for appropriate confidentiality of the information in issue.
I also recognize that I will be afforded the fair procedure prescribed in the Medical Staff Bylaws in the event that action on this application, or with respect to my privileges is adverse. Recognizing these facts, I specifically agree and consent to the following:
a) To appear, if requested, before the hospital president, medical staff officers, department and service chiefs, and medical staff committees for interviews or inquiries regarding this application;
b) To assist, in every way possible, this medical staff and its representatives, in gathering the information necessary to determine my qualifications. In this regard, I recognize that I have the burden of producing adequate information for proper evaluation of my professional competence, character, ethics and other qualifications and for resolving any doubts about such qualifications;
c) To the dissemination of information (including all medical staff and medical records) pertaining to my professional qualifications among this hospital and its medical staff and other persons, hospitals, medical staffs, professional societies, training programs, professional associations, professional liability insurance companies, and licensing authorities in jurisdictions in which I have trained, resided, or practiced, for the present and continuing evaluation of my professional training experience, character, conduct and judgment;
d) I hereby further consent to the inspection by Edward Hospital and their representatives of all records and documents, including medical/dental/podiatric/professional records, at other hospitals or institutions that may be material to an evaluation of my professional qualifications and competence to carry out the clinical privileges requested, as well as my moral and ethical qualifications for staff membership;
e) To be bound by the terms of the Medical Staff and Hospital Bylaws in all matters relating to the consideration of this application, regardless of whether I am granted medical staff membership and the privileges sought. In this regard, I acknowledge that I have received and have had the opportunity to review the Medical Staff Bylaws, Rules and Regulations, and any Hospital Bylaws and/or rules and policies which may pertain.”

Article VI, section 1, of the medical staff bylaws (Bylaws) provides:

“b. The applicant shall have the burden of producing adequate information for a proper evaluation of his experience, background, training, demonstrated ability, competence, character, ethics, and, upon request of the Credentials or Executive Committee or the Board of Directors, physical and/or mental health status, or any other qualifications, and for resolving any doubts about such qualifications.
c. The completed application shall be submitted to the Chief Executive Officer or the Manager of Medical Services. After collecting the references and other materials deemed pertinent, the application and supporting materials will be transmitted to the appropriate clinical department for review and evaluation. The department chairman will then transmit the application and recommendations regarding acceptance and clinical privileges to be granted to the Credentials Committee for evaluation.”

As part of the application process, plaintiff also signed a separate release form which provided, in part: “I also release from any liability all individuals and organizations who provide information to the hospital in good faith and without malice concerning my competence, ethics, character and other qualifications.”

By letter dated June 26, 1990, the hospital advised plaintiff that his application had been tabled at the credentials committee level. The letter stated that plaintiff would have to provide the hospital with information regarding his placement on probation while in his neurology residency at Loyola Hospital (Loyola), his reasons for leaving the Loyola residency after two years, and whether his change to another facility was voluntary or involuntary.

Plaintiff responded by letter which explained that plaintiff had been placed on probation twice during his neurology residency at Loyola and that many, if not most, of his fellow residents shared the status of probation with him during their residencies. Plaintiff’s letter also stated that he left Loyola voluntarily because of the behavior of the Loyola neurology chairman toward him.

A series of letters between plaintiff and the hospital ensued. The hospital sought additional information regarding the circumstances of plaintiff’s probation while at Loyola. Plaintiff responded that he could not truthfully state what prompted the Loyola neurology chairman to impose the two probation periods (which plaintiff stated each lasted for one month). The hospital was unsuccessful in obtaining information from Loyola about the probation periods because the neurology chairman would not release the information unless plaintiff signed an unconditional release providing immunity from all liability to Loyola and its employees without restrictions. The hospital requested plaintiff to sign such a release. Plaintiff protested the additional release on the grounds it abolished the standard of “good faith and without malice” and was contrary to the spirit of the standard in the Bylaws. The hospital determined it needed the information and it was plaintiff’s responsibility to provide it. Plaintiff contended that the hospital had sufficient information to complete its evaluation and that the release he had signed under the good-faith-and-without-malice standard was sufficient and all that should be required. The hospital concluded that it could not adequately evaluate plaintiff without the probation information; that the Bylaws did not limit the hospital to a good-faith-and-without-malice standard for releases; and that unless plaintiff signed the additional release his application would be considered voluntarily withdrawn. Plaintiff did not sign the unconditional release and did not provide any other information about the probations.

By letter dated February 27, 1991, Meyer advised plaintiff that the Board had accepted a recommendation that plaintiff’s application not be approved. The letter stated that the Board’s action was based on the “incomplete status” of plaintiff’s application.

The hospital denied plaintiff’s subsequent request for hearings and appellate review under the Bylaws. The hospital also denied plaintiff’s request for a copy of the credentials file related to his application on the grounds the information was privileged and confidential under the Medical Studies Act (Ill. Rev. Stat. 1991, ch. 110, par. 8—2101 et seq.).

Plaintiff subsequently filed a three-count complaint. Count I, a suit in equity, sought specific performance of a purported contract between plaintiff and EHA requiring EHA to evaluate plaintiff’s application. Count II sought judicial review of: (1) the action of EHA and its Board not to approve plaintiff’s application for medical staff membership; (2) defendants’ refusal to furnish plaintiff with a copy of the credentials file; (3) defendants’ refusal to afford plaintiff a hearing; and (4) Meyer’s actions during a meeting. Count III claimed that defendants deprived plaintiff of his due process rights under the United States Constitution and 42 U.S.C. §1983 (1988).

On March 30, 1992, defendants filed a motion to dismiss the complaint pursuant to sections 2—615 and 2—619 of the Illinois Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 1—101 et seq.) and a motion to stay discovery. The court’s order on that date, ruling on these motions, stayed all discovery except as to matters pertaining to whether State action was present; whether the hospital was a public or private hospital; and the interrelationship between EHA and EHD.

After concluding that Meyer, who had executed an affidavit of compliance with discovery, knew or reasonably should have known of certain documents which defendants did not produce during discovery, plaintiff filed a motion for sanctions. The alleged documents purportedly related to the limited discovery matters permitted by the trial court.

On September 14, 1992, the trial court entered an order granting defendants’ motion to dismiss pursuant to section 2 — 615 (Ill. Rev. Stat. 1991, ch. 110, par. 2—615). The order dismissed plaintiff’s complaint in its entirety and denied plaintiff’s motion for sanctions on the ground it was moot. Plaintiff appealed from the trial court order.

The first issue on appeal is whether the trial court erred when it dismissed plaintiff’s complaint in its entirety pursuant to section 2— 615. At the hearing on the motion to dismiss, the trial judge stated that plaintiff’s complaint “taken as a whole does not set forth a cause of action under any recognizable theory.” The court determined that the issue of whether the hospital was public or private was not dispositive and assumed, for the purposes of its ruling, that the hospital was a public hospital and “as such, would be subject to the constitutional provisions regarding State actions.”

The court concluded that the pleadings clearly showed that the hospital did not reject plaintiff’s application, and that the hospital “declined to consider the application because it was incomplete.” Based on that conclusion, the court stated that even if the hospital was a public hospital its “declination to consider the application” did not give rise to “the considerations of any property or liberty interests” because the application was in plaintiff’s exclusive control and it was his obligation to complete the application before it had to be considered by the hospital. The trial court specifically stated that the complaint was dismissed pursuant to section 2 — 615 and not section 2-619.

Among the principles governing a motion to dismiss pursuant to section 2—615 (Ill. Rev. Stat. 1991, ch. 110, par. 2—615) are the following. A section 2—615 motion to dismiss attacks only the legal sufficiency of the complaint and therefore does not raise affirmative factual defenses (as does a section 2 — 619 motion), but rather alleges defects on the face of the complaint. (Urbaitus v. Commonwealth Edison (1991), 143 Ill. 2d 458, 475.) The question presented by a section 2 — 615 motion to dismiss is whether sufficient facts are contained in the pleadings which, if proved, would entitle the plaintiff to relief. (Kolegas v. Heftel Broadcasting Corp. (1992), 154 Ill. 2d 1, 9.) In making this determination, the court is to interpret the allegations of the complaint in the light most favorable to the plaintiff. Kolegas, 154 Ill. 2d at 9.

The only matters to be considered in ruling on a section 2 — 615 motion to dismiss are the allegations of the pleadings themselves. (Urbaitus, 143 Ill. 2d at 475.) Exhibits attached to the pleadings are considered part of the pleadings for all purposes where the pleading is founded on such exhibits. (Ill. Rev. Stat. 1991, ch. 110, par. 2—606.) Allegations in the pleadings which conflict with facts disclosed in the exhibits are not admitted as true but, rather, the exhibit controls. (In re Estate of Davis (1992), 225 Ill. App. 3d 998, 1000.) The granting of a motion to dismiss a complaint is within the sound discretion of the trial court. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 422.) We will apply these principles to plaintiff’s complaint to determine whether the trial court erred in dismissing the complaint.

Count I of plaintiff’s complaint sought specific performance of an alleged contract. Count I alleged that by sending plaintiff the form to apply for medical staff privileges the hospital offered to consider fairly and evaluate plaintiff’s application in accordance with the relevant Bylaws. Count I alleged that plaintiff accepted the hospital’s offer by paying the application fee and agreeing to be bound by the Bylaws in all matters relating to the application. Count I alleged that plaintiff fulfilled his obligations under the contract including meeting the contract conditions of agreeing to release from liability any and all individuals and/or organizations providing information to the hospital pursuant to the application process. Count I alleged that plaintiff actually executed a release as required by the Bylaws, i.e., releasing the information provider from liability as long as the information was provided in good faith and without malice.

Count I further alleged that the hospital breached the contract when it refused to consider plaintiff’s application unless plaintiff executed an unconditional release in favor of Loyola Hospital and the chairman of its neurology department. The complaint alleged that this conduct was a breach of the contract because the Bylaws governing the contract neither require nor provide for such a “carte blanche” release.

Count I also alleged resultant injury to plaintiff, exhaustion of administrative remedies, and inadequacy of remedies at law. Plaintiff asserts that count I stated a prim a facie case for specific performance which, if proven, entitled him to the relief he sought and that is all that is required to defeat a section 2 — 615 motion to dismiss.

The gist of plaintiff’s contentions against defendant’s motion to dismiss the complaint in general and count I in particular is that defendant’s arguments incorrectly attack the merits or substance of the complaint. Plaintiff argues that defendants’ motion was more in the nature of a motion for summary judgment than a section 2 — 615 motion.

Similarly, plaintiff contends that the trial court improperly determined the factual merits of count I rather than the legal sufficiency of its allegations. Plaintiff argues that the issue of whether his application was complete was a controverted issue of fact with the hospital alleging that the application was incomplete and plaintiff alleging that it was complete. Plaintiff contends that the trial court improperly functioned as a fact finder when it, without reference to the Bylaws, assumed plaintiff’s application was incomplete and based its ruling on that assumption.

Defendants counter that the trial court did not err in dismissing count I of plaintiff’s complaint pursuant to section 2 — 615. Defendants contend that the trial court applied the proper standard in dismissing count I because it considered only the pleadings and attached exhibits in evaluating the legal sufficiency of count I.

Defendants argue that the pleadings failed to allege a critical missing link necessary for a cause of action for specific performance based on alleged breach of contract under the facts pleaded. The purported missing link is that EHA was obliged to process an incomplete application. Defendants further argue that the trial court correctly determined as a matter of law based on the pleadings that a condition precedent to any contract obligation for the hospital to evaluate an application was the supplying of all information by the applicant which the hospital deemed necessary even if the applicant had to sign an unconditional release to obtain the information.

To determine whether a complaint states a cause of action in specific performance, it is necessary that an enforceable contract exists and that the intent of the parties be established. (Chicago Investment Corp. v. Dolins (1981), 93 Ill. App. 3d 971, 974.) The determination of the intent of the parties may be a question of law or a question of fact depending on the language of the writing supporting the alleged agreement. (93 Ill. App. 3d at 974.) If the language is unambiguous, the construction of the purported contract is a question of law. (93 Ill. App. 3d at 974.) The trial court must decide whether a document’s language is ambiguous, because that decision itself is a question of law, and if the trial court finds the language is unambiguous, then the trial court may resolve the issue, as a question of law, pursuant to a motion to dismiss. 93 Ill. App. 3d at 974.

Here, although the trial court did not set out its analytical procedure, it is apparent that it concluded that the language in the Bylaws and the application form was unambiguous and could therefore be determined as a matter of law. The trial court concluded that the language required plaintiff to complete the application, including providing all information deemed necessary by the hospital, as a condition precedent to the hospital’s obligation to process the application. We agree.

The first question before us in determining whether the trial court erred in dismissing count I on the ground it failed to state a cause of action is whether the trial court properly determined that plaintiff’s completion of the application was a condition precedent to the alleged contract. Language in the Bylaws clearly places the burden of producing “adequate information for a proper evaluation” on the applicant. The Bylaws also make it clear that the hospital’s review and evaluation of the application will only occur after all the pertinent information is available. Accordingly, we cannot say that the trial court abused its discretion in determining as a matter of law that the completion of the application by plaintiff was a condition precedent to the hospital’s obligation to evaluate plaintiff’s application and that the hospital’s declination of consideration of an incomplete application could not be a breach of contract.

The next question in determining whether the trial court erred in dismissing count I for failing to state a cause of action is whether the trial court properly determined the application was incomplete. We find that the trial court did not err in making that determination because plaintiff’s own pleadings, in conjunction with the language of the documents setting out the terms of the purported contract, support a conclusion, as a matter Of law, that plaintiff’s application was incomplete.

Plaintiff’s allegations show that he refused to sign an unconditional release necessary to obtain information about his being placed on probation twice during his neurology residency. Plaintiff argues that he was not required to sign such an unconditional release and that his application was already complete. However, in light of the unambiguous language in the application itself requiring plaintiff to “assist, in every way possible, *** in gathering the information to determine my qualifications,” and the obvious need for information regarding the circumstances of the probation, we cannot say the trial court abused its discretion in finding that the application was incomplete.

Thus, the pleadings show that an unambiguous precondition to any obligation on the hospital to evaluate plaintiff’s application was that plaintiff submit a completed application including all information deemed necessary by the hospital. The pleadings also show that plaintiff did not submit a completed application. Accordingly, count I of plaintiff’s complaint did not state a cause of action in specific performance because plaintiff did not satisfy a precondition to the alleged contract. See Thilman & Co. v. Esposito (1980), 87 Ill. App. 3d 289, 296.

For all these reasons, we conclude that the trial court did not err when it determined that count I of plaintiff’s complaint failed to state a cause of action.

Counts II and III of plaintiff’s complaint essentially alleged deprivation of plaintiff’s due process rights. Count II realleged the allegations contained in count I and further alleged that defendants deprived plaintiff of substantive and procedural due process with respect to several property or liberty interests purportedly arising from contractual and/or statutory bases.

For example, paragraph 47 of plaintiff’s complaint states:

“47. Defendants [sic] wrongful refusal to honestly and fairly consider and evaluate plaintiff’s application for medical staff membership unless he executed a ‘carte blanche’ release in contravention of Edward Hospital’s Medical Staff Bylaws was arbitrary, capricious, without justification, and not supported by any reasonable grounds, and, therefore, has deprived plaintiff of substantive and procedural due process and has violated his right to basic fair procedure. Furthermore, the procedures actually followed by the defendants are in violation of the letter and spirit of 42 U.C.S., Sec. 11111 et seq., governing the standards for professional review actions.”

In his appellate brief, plaintiff states that “[reference to the Health Care Quality Improvement Act [Health Care Act], 42 U.S.C. §11111 was made in paragraph 47 of the complaint as a guideline only as to what the federal government considers appropriate standards for professional review actions and the nature of the process due in the physician-hospital relationship.” The Health Care Act has two main features: (1) it provides legal immunity for physicians engaged in peer review, and (2) it establishes a national clearinghouse to collect information on physicians. (Adler, “Stalking the Rogue Physician: An Analysis of the Health Care Quality Improvement Act,” 28 Am. Bus. L.J. 683, 702 (1991).) Thus, the Health Care Act does not provide a private cause of action for a physician seeking hospital staff membership. (See Caine v. Hardy (S.D. Miss. 1989), 715 F. Supp. 166, 170.) Accordingly, we find that count II of plaintiff’s complaint does not state a cause of action based on 42 U.S.C. §11111 (1988) of the Health Care Quality Improvement Act of 1986. However, we will determine whether the allegations in paragraph 47 of plaintiff’s complaint state a cause of action on some other basis.

Count II also alleged deprivations of procedural due process and a violation of plaintiff’s “right to basic fair procedure” by: (1) defendants’ arbitrary, capricious and unreasonable refusal to furnish plaintiff with a copy of “his credentials file”; (2) defendants’ arbitrary, capricious and unreasonable refusal to afford plaintiff a hearing in contravention of the Bylaws; and (3) Meyer’s wrongful interjection of “herself and her personal opinions into the credentialing process” in a meeting contrary to the Bylaws.

Count III of plaintiff’s complaint realleged the allegations contained in counts I and II and also alleged that when EHA rendered “its decision of February 25, 1991, regarding plaintiff’s application for Medical Staff membership,” it was State action. Count III further alleged that EHA’s action therefore deprived plaintiff of his due process rights under the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV) and 42 U.S.C. §1983 (1988).

On appeal, plaintiff contends that count II states a cause of action seeking judicial review of the conduct alleged in count II. In reaching this conclusion, plaintiff relies on an assertion that a public hospital’s action in rejecting an application for staff membership may be reviewed to determine whether the rejection was arbitrary, capricious, or unreasonable.

Defendants respond that count II is “rambling and muddled” and failed to inform defendants of the claim against them and is subject to dismissal on that basis alone. Defendants also contend that if count II is evaluated on the basis of a cause of action seeking judicial review to determine whether the alleged “rejection” of plaintiff’s application was arbitrary, capricious, or unreasonable, it still fails. Defendants argue that count II fails to state such a cause of action because it is based on a faulty factual predicate, i.e., that plaintiff’s application was rejected. Defendants assert that the mere refusal to process an incomplete application is not a rejection subject to judicial review. In the absence of a reviewable action, defendants posit that plaintiff’s other count II allegations (which defendants characterize as largely conclusory) are immaterial.

The gist of defendants’ contentions with respect to count III is that count III fails to state a cause of action because it fails to show that plaintiff had a property or liberty interest at stake in applying for staff membership. Defendants also assert that even if plaintiff had a property interest or liberty interest at stake, he received all the process he was due.

In granting defendants’ motion to dismiss, the trial court concluded that the pleadings showed that the hospital did not reject plaintiff’s application, but only “declined to consider the application because it was incomplete.” The trial court further concluded that the hospital’s declination to consider the application did not give rise to any property or liberty interests because plaintiff failed to fulfill his obligation to complete the application before the hospital was required to evaluate it. The trial court also concluded that whether the hospital was public or private was therefore not dispositive.

• 5 The question before us is whether the trial court’s determination was proper in a section 2 — 615 motion to dismiss. We agree with the trial court that the allegations of the pleadings show, even when liberally construed in favor of plaintiff, that the hospital did not reject plaintiff’s application. Although plaintiff is correct that a public hospital’s rejection of an application for staff membership may be judicially reviewed to determine if the rejection was arbitrary, capricious or unreasonable (Mauer v. Highland Park Hospital Foundation (1967), 90 Ill. App. 2d 409, 413), such a cause of action requires that the application in question be rejected. Thus a rejection of the application is necessary to state the cause of action plaintiff’s complaint purports to state.

Here, a careful review of the pleadings shows that the hospital did not reject plaintiff’s application for staff membership. The pleadings, particularly in the series of letters exchanged between plaintiff and the hospital, show that the hospital determined that plaintiff was required to provide the hospital with information concerning his two periods of probation while a resident at Loyola in order to complete his application and thereby be entitled to an evaluation of his qualifications for staff membership. Loyola refused to provide that information without an unconditional release from plaintiff. Plaintiff refused to sign such a release. The hospital advised plaintiff that it would consider the application voluntarily withdrawn unless plaintiff provided the information it deemed necessary. Plaintiff did not provide the information. Finally, the hospital notified plaintiff that it declined to determine whether plaintiff was qualified because his application was incomplete.

Based on the pleadings, we find as a matter of law that plaintiff has alleged insufficient facts to support his claim of arbitrary, capricious, or unreasonable behavior by the hospital. The Bylaws clearly placed the “burden of producing adequate information for a proper evaluation” of an applicant for medical staff privileges on the applicant. It is reasonable to expect the hospital to require information regarding two admitted periods of probation during an applicant’s residency for a proper evaluation. The Bylaws specifically require an applicant to sign releases under the good-faith-and-without-malice standard but do not limit the releases which could be required to that standard. By the specific terms of the application form, the applicant agreed “[t]o assist in every way possible, this medical staff and its representatives, in gathering the information necessary to determine my qualifications.”

Moreover, the Bylaws show that the hospital is only required to evaluate a completed application which includes all the information deemed necessary. Accordingly, we find, based on the pleadings, and contrary to plaintiff’s alleged conclusions, that it was not arbitrary, capricious, or unreasonable for the hospital to refuse to evaluate plaintiff’s application unless he provided the information necessary to complete his application.

We find that the pleadings show that the hospital’s actions did not constitute a rejection of plaintiff’s application nor any other substantive decision on the application. Accordingly, it was not arbitrary, capricious or unreasonable for the hospital to refuse a hearing and appellate review to plaintiff. Plaintiff’s reliance on Mauer (90 Ill. App. 2d 409) is misplaced because that case involved a rejection of an application, but there was no rejection or other substantive decision here. We find nothing in the Bylaws which would require the hospital to provide a hearing to an applicant for staff membership who has not submitted a complete application.

The pleadings fail to allege sufficient facts to support plaintiff’s claim that the meeting convened by Meyer deprived plaintiff of procedural due process. Plaintiff’s complaint shows that the meeting gave plaintiff an opportunity to present his views to hospital officials as to why he refused to execute an unconditional release. Plaintiff specifically agreed to attend such meetings when he signed the application form. We fail to see how such a meeting could constitute a deprivation of plaintiff’s procedural due process rights.

Plaintiff’s final specific allegation in counts II and III concerns the hospital’s denial of plaintiff’s request for access to the credentials file maintained by the hospital in relation to plaintiff’s application for staff privileges. Plaintiff’s complaint alleges that the denial was a violation of plaintiff’s right to basic fair procedure and deprived plaintiff of procedural due process.

The pleadings show that the hospital refused to provide plaintiff with a copy of the file on the ground that the information was privileged and confidential under the Medical Studies Act (Act) (Ill. Rev. Stat. 1991, ch. 110, par. 8—2101 et seq.). The Act provides, in relevant part:

“Information obtained. All information, interviews, reports, statements, memoranda or other data of *** committees of licensed or accredited hospitals or their medical staffs, including Patient Care Audit Committees, Medical Care Evaluation Committees, Utilization Review Committees, Credential Committees and Executive Committees, (but not the medical records pertaining to the patient), used in the course of internal quality control or of medical study for the purpose of reducing morbidity or mortality, or for improving patient care, shall be privileged, strictly confidential and shall be used only for medical research, the evaluation and improvement of quality care, or granting, limiting or revolting staff privileges, except that in any hospital proceeding to decide upon a physician’s staff privileges, or in any judicial review thereof, the claim of confidentiality shall not be invoked to deny such physician access to or use of data upon which such a decision was based.” Ill. Rev. Stat. 1991, ch. 110, par. 8-2101.

Plaintiff contends that the exception provided in the Act clearly applied to him and required that the hospital allow him access to the credentials file. We disagree.

The fundamental rule of statutory construction is to give effect to the intent of the legislature. (State v. Mikusch (1990), 138 Ill. 2d 242, 247.) To do that, a court first looks to the language of the statute, and, if the language is clear and unambiguous, the court should give it effect and not employ extrinsic aids to construction. In re Marriage of Logston (1984), 103 Ill. 2d 266, 277.

The language of section 8 — 2101 clearly and unambiguously provides that, as a general rule, all information used by hospital committees in proceedings to decide upon physician staff privileges is privileged and strictly confidential. The language unambiguously provides that the only exception to the general rule of strict confidentiality in such a proceeding or judicial review thereof is that “the claim of confidentiality shall not be invoked to deny such physician access to or use of data upon which such a decision was based.” Ill. Rev. Stat. 1991, ch. 110, par. 8-2101.

The language of the statute makes it clear that the exception to the general rule of confidentiality is limited to information upon which a hospital physician staffing decision was based. Therefore the exception applies only to information actually used by a hospital to make a physician staffing decision, and the exception does not apply to information not actually used as the basis of a physician staffing decision.

It follows that where no physician staffing decision was made, the exception does not apply. There can be no information used as the basis of a physician staffing decision when no such decision was made.

Here, no decision was made regarding plaintiff’s application for staff membership because plaintiff’s application was incomplete. Thus, the exception to the rule of confidentiality does not apply in this case because no decision was made on plaintiff’s application. We therefore find that plaintiff has not alleged sufficient facts to support his claim that he was "wrongfully denied access to the credentials file.

Thus, the trial court did not err in denying plaintiff’s request for access to the credentials file. Furthermore, the trial court did not err in determining that plaintiff’s allegations regarding the credentials file failed to state a cause of action.

There are other reasons why counts II and III fail to state a cause of action. The requirements of due process encompassed by the fourteenth amendment apply only to a State’s deprivation of life, liberty or property. (Board of Regents of State Colleges v. Roth (1972), 408 U.S. 564, 569, 33 L. Ed. 2d 548, 556, 92 S. Ct. 2701, 2705.) In order to state a cause of action for a due process violation under the fourteenth amendment, a plaintiff must allege deprivation of a liberty or property interest and State action. (Nicholson v. Chicago Bar Association (1992), 233 Ill. App. 3d 1040, 1049.) The same elements are necessary to state a cause of action under section 1983. Adickes v. S.H. Kress & Co. (1970), 398 U.S. 144, 150, 26 L. Ed. 2d 142, 150, 90 S. Ct. 1598, 1604.

Here, in granting defendants’ motion to dismiss plaintiff’s complaint, the trial court assumed that the alleged deprivations were the result of State action. The trial court therefore based its ruling on its conclusion that the hospital’s actions did not give rise to any property or liberty interests. Thus, the question before us with respect to counts II and III is whether the trial court erred when it determined that plaintiff’s complaint was insufficient under section 2 — 615 because it did not allege the deprivation of a property or liberty interest.

Property. “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Roth, 408 U.S. at 577, 33 L. Ed. 2d at 561, 92 S. Ct. at 2709.

On appeal, plaintiff asserts that his alleged property interest was his right to have his application fairly considered and evaluated in accordance with the terms of the Bylaws. Plaintiff also argues diminishment of the rights granted to him by the State under his license to practice medicine.

We find, as a matter of law, that plaintiff’s complaint failed to allege facts to support a property interest which could give rise to a deprivation of his due process rights. In the first place, procedural protections, such as plaintiff alleges under the Bylaws, do not create an entitlement upon which a claim of deprivation of property without due process of law can be founded. (Campbell v. City of Champaign (7th Cir. 1991), 940 F.2d 1111, 1113.) Furthermore, Illinois law does not grant a licensed physician a property right to practice at the hospital of his choice. (Tunca v. Lutheran General Hospital (7th. Cir. 1988), 844 F.2d 411, 414.) Accordingly, we find that the trial court did not err when it found as a matter of law, based on the pleadings, that plaintiff’s complaint failed to give rise to a property interest.

Liberty. While not defined with exactness, the concept of liberty protected by the due process clause of the fourteenth amendment includes occupational liberty in the sense of the freedom of an individual to engage in any of the common occupations of life. (Roth, 408 U.S. at 572, 33 L. Ed. 2d at 558, 92 S. Ct. at 2706.) However, it is the liberty to pursue a calling or occupation which is secured by the fourteenth amendment, not the right to a specific job or situation. (Wroblewski v. City of Washburn (7th Cir. 1992), 965 F.2d 452, 455.) Accordingly, being a member of a hospital medical staff is not an occupation; rather, it is a privilege attached to an occupation, and exclusion from membership of a hospital medical staff, without exclusion from the occupation, is not a deprivation of occupational liberty. Illinois Psychological Association v. Falk (7th Cir. 1987), 818 F.2d 1337, 1344.

Plaintiff’s complaint alleges that, as a result of the hospital’s actions, plaintiff suffered damage to his ability to earn a livelihood and practice his chosen profession. But nothing in the pleadings alleges that plaintiff was foreclosed from practicing medicine privately. In fact, the pleadings show that plaintiff is engaged in the private practice of medicine.

We find, as a matter of law, that plaintiff’s complaint failed to allege facts to support a liberty interest which could give rise to a deprivation of his due process rights. Plaintiff did not allege that the hospital’s action foreclosed his freedom to take advantage of membership on the staff of other hospitals. (See Nicholson, 233 Ill. App. 3d at 1050.) Plaintiff is still employed as a physician and has not alleged any facts to show he is precluded from seeking membership on the staff of another hospital. Even if the hospital had rejected plaintiff’s application, there would be no deprivation of a property interest absent a showing of a foreclosure of plaintiff’s ability to engage in private practice. (Todorov v. D C H Healthcare Authority (11th Cir. 1991), 921 F.2d 1438, 1464.) Here, where the pleadings show that plaintiff failed to complete his application for staff membership, plaintiff’s allegation of deprivation of his liberty interest fails as a matter of law. See Suckle v. Madison General Hospital (7th Cir. 1974), 499 F.2d 1364, 1367.

For all these reasons, we find that counts II and III of plaintiff’s complaint failed to state a cause of action based on the actions of the hospital in declining to evaluate plaintiff’s application. We also find that the trial court was correct in not allowing plaintiff access to information in the- credentials file.

In summary, we hold that the trial court did not err in granting defendants’ motion to dismiss plaintiff’s complaint.

The next issue on appeal is whether the trial court erred when it stayed parts of plaintiff’s discovery requests dealing with the credentials file. Plaintiff contends that the discovery limitation imposed by the trial court prevented plaintiff from obtaining information which was necessary to respond fully to the property interest and liberty interest issues. Plaintiff argues that it was an unconscionable abuse of discretion for the trial court to dismiss plaintiff’s claims without allowing plaintiff access to information which might have included material facts which plaintiff could have alleged to establish a cause of action. Finally, plaintiff again asserts a right of access to the credentials file under the Medical Studies Act (Ill. Rev. Stat. 1991, ch. 110, par. 8—2101 et seq.).

Defendants respond that the trial court order staying plaintiff’s discovery requests was well within the bounds of judicial discretion and consistent with the goal of judicial economy. Defendants argue that the trial court properly did not allow plaintiff to try to overcome the pleading deficiencies of his complaint by embarking on a fishing expedition to obtain information he did not have when he filed his complaint. Finally, defendants assert that the trial court ruling did not violate the Medical Studies Act.

The purpose of discovery is to determine the truth. (Buehler v. Whalen (1977), 70 Ill. 2d 51, 67.) To achieve this end, the scope of discovery may be very broad. (See 134 Ill. 2d R. 201(b).) However, a trial court is afforded great latitude in ruling on discovery matters, and a reviewing court should not disturb such rulings absent a manifest abuse of discretion. Maxwell v. Hobart Corp. (1991), 216 Ill. App. 3d 108, 110.

We find that the trial court’s ruling limiting discovery in this case to issues related to whether the hospital was a public hospital was not an abuse of its discretion. Our finding is based on the following: (1) defendants filed their motion to stay discovery at the same time they filed their motion to dismiss plaintiff’s complaint in its entirety; (2) at that time, the court could have reasonably concluded that the primary issue in determining whether to grant defendants’ motion to dismiss was whether the hospital was or was not a public hospital, and the court could therefore properly limit discovery to that issue; (3) despite plaintiff’s arguments to the contrary, we find nothing in the record to suggest that the credentials file might contain information which could establish plaintiff’s claim of a property interest or liberty interest; (4) despite plaintiff’s arguments to the contrary, we find nothing in the record to indicate that the contents of the credentials file were disseminated to anyone with a questionable right to the contents of the file; and (5) as determined above, under the Medical Studies Act (Ill. Rev. Stat. 1991, ch. 110, par. 8—2101) the information in the credentials file was privileged and strictly confidential and therefore not subject to discovery under the circumstances of this case.

For these reasons, we hold that the trial court did not err in staying those parts of plaintiff’s discovery requests dealing with the credentials file and the credentialing process.

The last issue on appeal is whether the trial court erred when it ruled that plaintiff’s motion for sanctions was moot. Plaintiff filed the motion for sanctions pursuant to Supreme Court Rules 137 and 219(c) (134 Ill. 2d Rules 137, 219(c)) after concluding that Meyer had deliberately filed a false affidavit of compliance with discovery. Meyer’s affidavit stated, in part, that to the best of her knowledge the hospital had produced all the records it could find concerning the relationship between EHA and EHD. The only record the hospital produced regarding that relationship was a copy of EHA’s lease and attachments. Plaintiff later independently obtained five documents which it contends clearly related to the EHA-EHD relationship.

In his motion for sanctions and on appeal, plaintiff maintains that Meyer either knew or reasonably should have known of the five documents (EHA’s application for a permit to establish a hospital, two disclosure of ownership statements, EHA’s articles of incorporation, and EHA’s Bylaws). Plaintiff argues that Meyer’s conduct, as an agent of EHA, in denying knowledge of the documents showed a “willful, intentional, contumacious and unwarranted disregard of the court’s authority” which should have been sanctioned.

Plaintiff maintains that the dismissal of his complaint did not render his motion for sanctions moot. Plaintiff asserts that the trial court abused its discretion in ruling that the motion for sanctions was moot. As support for this assertion, plaintiff argues that the trial court failed to set out a basis for its decision denying plaintiff’s motion for sanctions as required by Rule 137 (134 Ill. 2d R. 137).

Defendants contend that the trial court’s dismissal of plaintiff’s complaint without reaching the subject of the purported discovery violations whether the hospital was a public hospital rendered the discovery order moot. Defendants argue that because the discovery order was moot the only purpose of plaintiff’s attempt to revive the motion for sanctions was the improper purpose of punishment. Finally, defendants assert that plaintiff’s attorney’s recurring obstinacy and refusal to comply with Supreme Court Rule 201(k) (134 Ill. 2d R. 201(k)) caused confusion regarding what documents plaintiff requested.

Under both Supreme Court Rules 137 and 219(c), a decision regarding the imposition of sanctions is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. (North Shore Sign Co. v. Signature Design Group, Inc. (1992), 237 Ill. App. 3d 782, 790; Hartnett v. Stack (1993), 241 Ill. App. 3d 157, 172.) The purpose of discovery violation sanctions under Rule 219(c) is to effect discovery and not to inflict punishment. (Hartnett, 241 Ill. App. 3d at 172-73.) The purpose of Rule 137 sanctions is to prevent a litigant from abusing the judicial process by penalizing the party who brings a vexatious or harassing action without a sufficient legal or factual foundation. (North Shore Sign Co., 237 Ill. App. 3d 782.) Under Rule 137, the trial court must express the basis for its decision even when the court denies a motion for sanctions. 237 Ill. App. 3d at 791.

Here, where plaintiff alleges discovery violations warranting sanctions, Rule 219(c) would appear to be the applicable statute rather than Rule 137, given the purposes of the rules. However, we find that even if Rule 137 is the controlling statute, the trial court did not abuse its discretion in denying plaintiff’s motion for sanctions.

First, we find plaintiff’s contention that the trial court failed to set out the basis for its decision unpersuasive. The record shows that the trial court ruled on defendants’ motion to dismiss plaintiff’s complaint and plaintiff’s motion for sanctions at the same time. After expressing its reasons for granting the motion to dismiss, including finding that the question of whether the hospital was a public or private hospital was not dispositive, the court stated “[t]hat renders moot the motion for sanctions.” Thus, the trial court made several findings and then determined that the findings rendered plaintiff’s motion for sanctions moot. We find that the trial court thereby satisfied the Rule 137 requirement that it express its basis for denying the motion for sanctions. Accordingly, we conclude that the trial court did not abuse its discretion in denying plaintiff’s motion for sanctions under Rule 137 on the ground that it failed to express the basis for its decision.

We also find that the trial court did not abuse its discretion under Rule 219(c). We base our finding on the following: (1) the trial court assumed for purposes of its ruling on the motion to dismiss that the hospital was a public hospital; (2) consequently, the alleged discovery violations, which were related to the public hospital question, were not dispositive; (3) the purpose of Rule 219(c) is to effect discovery, not to punish; and (4) the effect of sanctions in these circumstances would only serve to punish. We also note that the trial court took an active role in this case in attempting to effect appropriate discovery and therefore was in a much better position than this court to determine whether sanctions were warranted.

For these reasons, we hold that the trial court did not err when it denied plaintiff’s motion for sanctions.

Based on the foregoing, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

WOODWARD and COLWELL, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM EDMUNDSON, Defendant-Appellant.
    Second District
    No. 2—91—0205
    Opinion filed July 22, 1993.

      G. Joseph Weller, of State Appellate Defender’s Office, and Anne S. Quincy, both of Elgin, and David W. Devinger, of Woodstock, for appellant.
    David R. Akemann, State’s Attorney, of Geneva (William L. Browers, Robert J. Biderman, and David Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, William Edmundson, appeals his conviction of reckless homicide (Ill. Rev. Stat. 1991, ch. 38, par. 9—3(a) (now 720 ILCS 5/9—3(a) (West 1992))) and driving with a suspended license (Ill. Rev. Stat. 1991, ch. 95^2, par. 6-303 (now 625 ILCS 5/6-303 (West 1992))). Defendant contends that the State failed to prove him guilty beyond a reasonable doubt of reckless homicide and that the court improperly admitted evidence of a blood test showing defendant to be intoxicated.

Phil Hauser was driving on Main Street near Elbum on April 20, 1991, when he saw a one-car accident along the side of the road. He drove to the nearby home of Dennis Richmond to summon an ambulance. He and Richmond then returned to the accident scene.

Richmond noticed that the car involved was off to the north side of the road, facing west and resting against a tree. A traffic sign warned that the road curved at that location. Richmond had driven the curve numerous times at or near the 55-mile-per-hour speed limit without difficulty.

Sergeant Kenneth Ramsey responded to the accident scene. He found defendant pinned behind the steering wheel of the car. Defendant had to be pried loose. A passenger in the car, later identified as Walter Kitzler, appeared to be deceased. As Ramsey approached defendant, he noticed an odor of alcohol on the latter’s breath. He found open and partly empty beer cans in the car and a broken rum bottle outside the car near the driver’s side.

Ramsey saw impressions in the grass where the car apparently left the road, travelled through the grass and came to rest against the tree. The tire tracks were straight until about 10 to 15 feet before the tree, where they appeared to swerve southwesterly. Ramsey also observed a mailbox atop a tree trunk about four to five feet off the road. White paint, the same color as that of the car, was observed on the mailbox. Based on the odor of alcohol, Ramsey opined that defendant was intoxicated.

Deputy Sheriff Thomas Bumgarner also responded to the accident scene. He measured the tire tracks from the point where the car apparently left the road to the point where it came to rest against the tree. The length of the tracks was 367 feet, 5 inches.

Bumgarner later spoke with defendant at the hospital. He noticed an odor of alcohol on defendant’s breath and that his eyes were bloodshot. Defendant would not submit to a breath test.

Bumgarner stated that on the night of the accident it began sprinkling when he arrived at the scene although the weather had previously been dry. He had negotiated the curve at the posted speed limit numerous times with no difficulty.

Eleanore Diamse was a medical technologist at Mercy Hospital in Aurora on April 20. She was trained to operate the machine that performs blood tests. She ran through the machine a sample of blood which she obtained from a vial containing defendant’s name. She did not recall whether she or Lisa Noonan had actually drawn the sample from defendant. The test showed a blood-alcohol level of .114. The result was written on a slip of paper, since the computer was down.

Lisa Noonan was also a medical technologist at Mercy Hospital. She testified concerning the hospital’s usual procedures for performing blood tests. However, she could not recall the defendant or the particular test performed in his case.

Dr. Kawadry was the emergency room physician at Mercy when defendant was brought in. He ordered several blood tests for purposes of treatment. He recalled being handed a computerized printout showing a blood-alcohol level of .114. He did not know who handed him the printout.

Defendant telephoned Gigi Kitzler, the wife of the decedent, about two weeks after the accident. Defendant was upset and crying. He stated that he and Walter Kitzler left defendant’s house on April 20 and stopped to have “a couple of beers.” The decedent then asked defendant to drive his car, since the decedent was too intoxicated. Defendant recalled that it had been raining prior to the accident. He remembered going around a curve and seeing headlights coming at him. He went off the road and tried to pull back.

Such was the testimony at trial. The parties stipulated that if called to testify witnesses would state that Walter Kitzler died as the result of injuries sustained in the April 20 accident. The State introduced Kitzler’s death certificate, as well as a certified copy of the summary suspension order regarding defendant’s driver’s license, showing that it was suspended on April 20.

Following this evidence, the court granted defendant’s motion for a directed finding regarding additional charges of driving under the influence of alcohol and improper lane usage. After closing arguments, the court found defendant guilty of reckless homicide and driving on a suspended license. The court denied defendant’s post-trial motion and sentenced him to two years’ imprisonment on the reckless homicide count. Defendant filed a timely notice of appeal.

Defendant first contends that the State failed to prove him guilty beyond a reasonable doubt of reckless homicide. Defendant contends that the State offered no evidence that his driving was reckless. He posits that the only evidence which could arguably support a finding of recklessness was the unreliable evidence of his intoxication. He maintains that this evidence was insufficient to establish that he drove while intoxicated and, even if it were, no nexus was established between his alleged intoxication and the accident.

When reviewing a challenge to the sufficiency of the evidence, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Campbell (1992), 146 Ill. 2d 363, 374; People v. Collins (1985), 106 Ill. 2d 237, 261.) This standard applies in all cases, regardless of whether the evidence is direct or circumstantial. (People v. Pintos (1989), 133 Ill. 2d 286, 291.) A reviewing court, therefore, must not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of the witnesses and will not reverse a conviction unless the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of defendant’s guilt. Campbell, 146 Ill. 2d at 375.

A person commits reckless homicide if, while driving a motor vehicle, he unintentionally kills an individual and the acts which caused the death are performed recklessly or as to create a likelihood of death or great bodily harm to some person. (Ill. Rev. Stat. 1991, ch. 38, par. 9-3(a) (now 720 ILCS 5/9-3(a) (West 1992)):) Reckless conduct occurs when an individual consciously disregards a substantial and unjustifiable risk that his acts are likely to cause death or great bodily harm to some individual and where such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in that situation. (People v. Zator (1991), 209 Ill. App. 3d 322, 328; People v. McDermott (1985), 141 Ill. App. 3d 996, 1006.) Recklessness may be inferred from all the facts and circumstances in the record, viewed as a whole, and may be established by evidence regarding defendant’s physical condition. (People v. Smith (1992), 149 Ill. 2d 558, 565; People v. Gittings (1985), 136 Ill. App. 3d 655, 659.) Therefore, evidence of intoxication, while not an element of the offense, is probative on the issue of recklessness. Smith, 149 Ill. 2d at 565, citing People v. Sleboda (1988), 166 Ill. App. 3d 42, 55.

In Smith, the supreme court held that intoxication was not an essential element of either involuntary manslaughter or reckless homicide. The two offenses have the same elements except that reckless homicide involves a motor vehicle. (Ill. Rev. Stat. 1991, ch. 38, par. 9—3(a) (now 720 ILCS 5/9 — 3(a) (West 1992)).) Thus, the State is not required to introduce evidence of intoxication to sustain a conviction of either offense. However, where the State does introduce such evidence, it need only present some evidence of intoxication from which, along with other circumstances, recklessness may be inferred. Smith, 149 Ill. 2d at 565.

The reckless homicide statute provides a rebuttable presumption that intoxication is equivalent to recklessness:

“In cases involving reckless homicide, being under the influence of alcohol or any other drug or drugs at the time of the alleged violation shall be prima facie evidence of a reckless act.” Ill. Rev. Stat. 1991, ch. 38, par. 9—3(b) (now 720 ILCS 5/ 9 — 3(b) (West 1992)).

Defendant contends, however, that evidence of intoxication alone is insufficient to support a reckless' homicide conviction, that there must be some “nexus” between defendant’s intoxication and the cause of death. (See People v. Walljasper (1981), 97 Ill. App. 3d 81.) Defendant contends that a reckless homicide conviction cannot be based solely on disputed evidence of intoxication and the statutory presumption. Smith, released for publication after defendant filed his brief in this court, does not explicitly state the nexus requirement, but appears to do so implicitly, requiring “other circumstances” in order to infer recklessness.

We find that the State submitted sufficient evidence from which the court could infer both intoxication and an adequate “nexus” beyond a reasonable doubt. In addition to the disputed blood-test evidence, which we discuss more fully below, there was evidence that both officers who investigated the accident noticed an odor of alcohol on defendant’s breath, and Bumgarner observed that defendant’s eyes were bloodshot. Sergeant Ramsey found open beer cans in the passenger area of the car and a broken rum bottle outside the car near the driver’s side door. Defendant himself admitted to Gigi Kitzler that he and the decedent had been drinking prior to the accident.

In addition to this evidence of intoxication, the circumstances of the accident give rise to an inference that the accident was the result of reckless conduct. The officers’ testimony established that the car defendant was driving left the road and travelled through the grass for a distance of 367 feet, grazing a mailbox and eventually coming to rest against a tree. From the photographs in the record, it appears that the curve where defendant left the road is not particularly severe, and witnesses familiar with that stretch of road testified that they had negotiated the curve on numerous occasions without difficulty. Defendant apparently did not attempt to get back on the road and avoid the obvious danger of the tree until he was 10 to 15 feet from it. The failure to take evasive action in the face of an obvious danger may itself constitute a gross deviation from the proper standard of care. (People v. Mikyska (1989), 179 Ill. App. 3d 795, 801; see also People v. Bernotas (1991), 215 Ill. App. 3d 371 (drifting off to side of road evidence of intoxication).) That other drivers were able to negotiate the curve without difficulty is further evidence of defendant’s recklessness. See People v. Brajcki (1986), 150 Ill. App. 3d 506.

People v. Walljasper (1981), 97 Ill. App. 3d 81, on which defendant relies, is distinguishable. In that case, defendant unexpectedly encountered a wet patch on an otherwise dry road and skidded off the pavement. The same thing had happened to another driver at the same location a few minutes earlier. This court held that, although there was evidence that defendant was intoxicated, there was simply no connection shown between his condition and the accident. (Walljasper, 97 Ill. App. 3d at 83.) In the instant case, there was no evidence of a dangerous road condition that caused the accident. Although defendant testified that it was raining at the time, Deputy Bumgarner testified that the rain did not begin until after he arrived at the accident scene. Defendant also told Gigi Kitzler that he remembered seeing headlights coming at him just before he lost control of the car. However, defendant’s implicit contention that he was blinded by the headlights is pure speculation. There was absolutely no evidence that the oncoming headlights somehow contributed to the accident. The evidence was sufficient to establish defendant’s guilt beyond a reasonable doubt.

Defendant’s second contention is that the State failed to lay a sufficient foundation for the admission of the blood-test evidence. He points out that none of the three medical witnesses could recall actually taking the blood sample used for the test. Moreover, the chain of custody was not established where Diamse did not know where the sample she tested came from. Defendant posits that the sample may have been contaminated, switched with some other sample or tampered with during the testing process.

The State responds that the blood-test results were properly admitted pursuant to section 11—501.4 of the Illinois Vehicle Code (625 ILCS 5/11 — 501.4 (West 1992)). Alternatively, the State contends that any error was harmless beyond a reasonable doubt.

Section 11 — 501.4 provides for the admission of blood-alcohol tests where they have been ordered, performed and used in the treatment of defendant by an emergency room physician. (625 ILCS 5/11—501.4 (West 1992).) Under this section, the State need not provide any evidence of the appropriateness of the test procedures or the working condition of the machinery used. People v. Crowe (1992), 232 Ill. App. 3d 955, 967.

The admissibility of evidence at trial is a matter within the sound discretion of the trial court, and a decision concerning the admission of evidence will not be disturbed on appeal absent a clear abuse of discretion. An abuse of discretion occurs where the trial court’s decision is arbitrary, fanciful or unreasonable, or where no reasonable man would take the view adopted by the trial court. People v. Illgen (1991), 145 Ill. 2d 353, 364.

Chain of custody evidence is required where physical evidence is not readily identifiable or is susceptible to contamination or tampering. The chain of custody must be sufficiently complete to make it improbable that the evidence has been tampered with. However, the State need not exclude every possibility of tampering. Unless the defendant provides actual evidence of tampering, the State need only establish the stated probability and any deficiencies go only to the weight of the evidence, not its admissibility. People v. Shiflet (1984), 125 Ill. App. 3d 161, 178.

In the instant case, the State established a sufficient foundation for the admission of the blood test under section 11 — 501.4. Dr. Kawadry testified that he ordered the blood test and relied on the results in his treatment of defendant. Diamse testified that she tested a sample from a vial marked with the name William Edmundson. Generally, identity of name creates a rebuttable presumption of identity of person. (People v. Davis (1983), 95 Ill. 2d 1, 31.) Noonan testified concerning the hospital’s standard procedure for taking and testing blood samples. Evidence of a routine practice of an organization is admissible to prove an action was taken on a given occasion if it is corroborated. (People v. Galbreath (1989), 182 Ill. App. 3d 519, 521.) Here, both Dr. Kawadry and Diamse corroborated Noonan’s testimony regarding the hospital’s standard practice. Diamse recalled actually testing a sample with defendant’s name on it. The fact that no one could remember actually drawing the sample used for the analysis goes only to the weight of the evidence. Defendant presented no evidence that the sample was not his, or that it had been contaminated or tampered with in any way.

Moreover, we agree with the State that any error in the admission of the blood test was harmless. The trial court’s remarks indicate that it gave the test results little weight in reaching its ultimate conclusion. There was ample evidence in the record to support the finding of intoxication, even absent the disputed blood test, including defendant’s own admission that he and the decedent had been drinking. Assuming for the sake of argument that the court erred in admitting the test results, the error was harmless beyond a reasonable doubt.

We note that defendant does not challenge on appeal his conviction of driving on a suspended license. The evidence in the record was sufficient to support that conviction.

For the foregoing reasons, defendant’s convictions are affirmed.

Affirmed.

WOODWARD and DOYLE, JJ., concur.


author: JUSTICE COOK

text:
      In re MARRIAGE OF DONALD O’BRIEN, Petitioner-Appellant, and JULIE ANN WARD, Respondent-Appellee.
    Fourth District
    No. 4—92—0823
    Opinion filed July 29, 1993.

      Grosboll, Becker, Tice & Smith, of Petersburg (Eldon H. Becker, of counsel), for appellant.
    A. Michael Kopec, of Stratton, Dobbs & Nardulli, of Springfield, for appellee.
   JUSTICE COOK

delivered the opinion of the court:

This appeal is from an order of the circuit court of Menard County granting Julie Ann Ward’s motion for judgment on the pleadings. (Ill. Rev. Stat. 1989, ch. 110, par. 2—615(e).) We affirm.

Donald and Julie were married November 23, 1985; Shea Donald O’Brien was born December 14, 1986. The parties separated in November 1988 and a judgment for dissolution of marriage was entered January 4, 1989, incorporating a settlement agreement the parties entered into that day. The settlement agreement provided that Julie would have custody of Shea, subject to specific rights of visitation for Donald. Donald agreed to pay child support of $400 per month, medical insurance for Shea, and half of the child’s medical expenses not covered by insurance.

On October 2, 1990, Donald filed a petition pursuant to section 2 — 1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401) to set aside the judgment. Donald alleged the judgment of dissolution and the incorporated settlement agreement were procured through Julie’s fraudulent misrepresentations that Donald was in fact the father of Shea, and attached an affidavit in which he stated he “was unaware that his wife had had sexual relations with any man during the marriage of the parties hereto.” By agreement of the parties blood tests were taken. The blood tests showed, among other things, that Donald was type O, Julie was type A, Shea was type B, and there was no possibility that Donald was Shea’s father. On February 1, 1991, Donald filed a verified two-count complaint for fraud, in the dissolution case, alleging Julie deceived him by statements that he was Shea’s father. Count I sought recovery of the child support payments Donald had made pursuant to the judgment of dissolution; count II sought recovery of Donald’s costs of raising the child from the date of the child’s birth through the termination of the marriage. In count I Donald alleged: “6. That the Defendant, Julie Ann Ward represented to the said Donald O’Brien that he was the father of said child and that she had had blood test [sic] performed which substantiated that he was the father of said child.” In count II Donald alleged:

“16. That after the Defendant informed Plaintiff that she was pregnant with the aforesaid referred to minor child the Plaintiff questioned the Defendant as to whether or not he was the father of said minor child, as he did not believe he could be.
17. That the Defendant, Julie Ann O’Brien, repeatedly assured the Plaintiff that he was the father of said minor child.”

On September 20, 1991, the trial court dismissed, with leave to amend, Donald’s section 2 — 1401 petition for failure to “adequately state a cause of action.” The court also dismissed Donald’s complaint for fraud, finding that unless the dissolution of marriage were set aside, the finding there, that Donald was the father of Shea, would be res judicata. Donald filed an amended section 2 — 1401 petition, alleging he previously had no reason to question whether he was Shea’s father, and attached an affidavit and the results of the blood tests which showed he was not Shea’s father. Julie filed a response to the section 2 — 1401 petition, affirmative defenses, and a motion for judgment on the pleadings alleging Donald had failed to exercise due diligence in contesting paternity. In his response to affirmative defenses Donald admitted “that he questioned the Defendant both prior to the birth of the child and prior to the entry of the Judgment.” The trial court then entered judgment on the pleadings against Donald, ruling as follows:

“1). THAT DONALD O’BRIEN (hereinafter Petitioner) having alleged in a previously filed Complaint for Fraud that he was highly suspicious of the paternity of the minor child prior to the Dissolution, cannot now demonstrate that he exercised due diligence in attempting to discover and present his meritorious defense prior to the entry of the judgment.
2). THAT because Petitioner cannot show such due diligence, the Motion [for] Judgment on the Pleading[s] should be sustained.”

Section 2—615(e) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2—615(e)) provides that “Any party may seasonably move for judgment on the pleadings.” A judgment on the pleadings is proper only if questions of law and not of fact exist after the pleadings have been filed. (Harris Trust & Savings Bank v. Donovan (1991), 145 Ill. 2d 166, 172, 582 N.E.2d 120, 122-23.) A denial of an allegation can prevent judgment on the pleadings, if the denial raises an issue of fact. On the other hand, an admission can lead to judgment on the pleadings by removing an issue of fact from the case. A motion for judgment on the pleadings could be described as a motion for summary judgment limited to the pleadings. If the admissions in the pleadings disclose there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law, judgment on the pleadings is proper. (3 R. Michael, Illinois Practice §27.2, at 494 (1989) (Civil Procedure Before Trial); see Tompkins v. France (1959), 21 Ill. App. 2d 227, 157 N.E.2d 799; Baker-Wendell, Inc. v. Edward M. Cohon & Associates, Ltd. (1981), 100 Ill. App. 3d 924, 427 N.E.2d 317.) A motion for summary judgment (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005) is generally a more satisfactory method for summary disposition of a case than a motion for judgment on the pleadings. With a motion for summary judgment, the parties have full opportunity to place relevant facts before the court by way of affidavits. In the unusual circumstances of this case, however, we conclude that the granting of the motion for judgment on the pleadings was proper. Here Donald admitted that while Julie was pregnant he did not believe he could be the father, that he questioned Julie about it, and Julie, repeatedly assured him that he was the father, even telling him that she had had blood tests performed which verified his paternity. Donald’s admissions were contained in his complaint for fraud, not in his section 2— 1401 petition, but no argument is made that fact prevents consideration of the admissions in connection with the motion for judgment on the pleadings.

A fact which is admitted in a pleading is a judicial admission, binding on the pleader, which may not be controverted. Pleadings which have been withdrawn or superseded contain only evidentiary admissions, which may be controverted. However, where the original pleading is verified it remains part of the record upon the filing of an amended pleading, and any admissions in the original verified pleading which were not the product of mistake or inadvertence are binding even after amendment. (Winnetka Bank v. Mandas (1990), 202 Ill. App. 3d 373, 397, 559 N.E.2d 961, 976 (bank did not claim pleadings were a product of mistake or inadvertence).) Verified statements in pleadings from one case, when used in another case, are again ordinary evidentiary admissions which may be used in a later action as statements against interest, but which may be controverted or explained. (Goodwin v. I T T Commercial Finance Corp. (1986), 146 Ill. App. 3d 810, 814, 497 N.E.2d 331, 333.) Even assuming the statements in this case are only evidentiary admissions, the statements are sufficient to support the trial court’s entry of judgment on the pleadings. Donald made no attempt to explain the statements or disavow them as the product of mistake or inadvertence. In fact Donald repeated in his pleadings that he questioned Julie about paternity before the child was born and before the judgment of dissolution was entered. Donald’s affidavit, attached to his amended section 2 — 1401 petition, states that he was unaware Julie had sexual relations with anyone other than himself during the marriage, but the affidavit does not negate his statements that he was highly suspicious of the paternity of the child prior to the judgment of dissolution.

This appeal raises the question whether Donald was diligent for purposes of his section 2 — 1401 petition, and not whether his claim was barred by the Illinois Parentage Act of 1984 statute of limitations (see Ill. Rev. Stat. 1989, ch. 40, par. 2508), but similar concerns are involved. When a child is born to a married couple the husband is presumed to be the father of the child, and that presumption may be rebutted only by clear and convincing evidence. (Ill. Rev. Stat. 1989, ch. 40, par. 2505(b).) An action to declare the nonexistence of the parent and child relationship shall be barred if brought by anyone other than the child later than two years after the birth of the child, or later than two years after the petitioner “obtains knowledge of relevant facts.” (Ill. Rev. Stat. 1989, ch. 40, pars. 2508(a)(2), (a)(3).) The policies underlying statutes of limitation in general apply with special force in this area. To paraphrase Justice Holmes, a child, “like a tree in the cleft of a rock, gradually shapes his roots to his surroundings, and when the roots have grown to a certain size, cannot be displaced without cutting at his life.” (M. Lerner, The Mind and Faith of Justice Holmes 417 (1953); see also In re Marriage of Beckett (1990), 195 Ill. App. 3d 424, 429-30, 552 N.E.2d 375, 379 (social issues here are obvious).) It is wrong to make a child a part of a family unit and pass over substantial concerns regarding the child’s paternity only to raise them years later in an attempt to avoid child support. In re Marriage of Johnson (1990), 206 Ill. App. 3d 992, 995-96, 565 N.E.2d 162, 163-64 (husband could not challenge paternity in a 1988 petition for modification of a 1977 judgment of dissolution where wife was eight months pregnant when husband returned in 1971 from a year in Vietnam — contention of no knowledge “strains credulity”).

We further note that the procedure employed by the parties here, submitting to the blood tests, then arguing the section 2 — 1401 petition could not be granted in any event, was backward. In re Marriage of Klebs (1990), 196 Ill. App. 3d 472, 482, 554 N.E.2d 298, 305 (error to order blood tests which established third-party father); In re Custody of D.A. (1990), 201 Ill. App. 3d 810, 823, 558 N.E.2d 1355, 1362 (a determination who is a child’s biological father may not always be in the child’s best interests); cf. In re Marriage of Tzoumas (1989), 187 Ill. App. 3d 723, 731-33, 543 N.E.2d 1093, 1098-99.

The purpose of section 2 — 1401 of the Code is to bring facts not of record to the attention of the trial court which, if known by the court at the time judgment was entered, would have affected or altered judgment. (In re Marriage of Frazier (1990), 203 Ill. App. 3d 847, 850-51, 561 N.E.2d 160, 162.) A party contending fraudulent inducement in the making of a property settlement agreement which is incorporated into a decree of dissolution may properly obtain relief pursuant to section 2—1401. (In re Marriage of Fricke (1988), 174 Ill. App. 3d 191, 194, 528 N.E.2d 370, 371.) A section 2 — 1401 petition to vacate a judgment should be granted if the petitioner proves the judgment would not have been entered if the grounds claimed for relief had been known by the trial court at the time the judgment was entered, and that faüure to present those grounds was not due to lack of diligence on the part of the petitioner. (Tzoumas, 187 Ill. App. 3d at 728-29, 543 N.E.2d at 1096.) Still, it is not the purpose of section 2 — 1401 to provide litigants with a fresh opportunity to do what they should have done in the prior proceeding. There exists a strong judicial policy favoring finality of judgments and of settlement agreements. (In re Marriage of Halas (1988), 173 Ill. App. 3d 218, 223, 527 N.E.2d 474, 478; In re Marriage of Lorton (1990), 203 Ill. App. 3d 823, 825, 561 N.E.2d 156, 158.) Donald was not diligent in raising the issue of paternity, and because of the admissions made in the pleadings here, judgment on the pleadings was properly entered dismissing Donald’s section 2 — 1401 petition.

Affirmed.

STEIGMANN, P.J., and GREEN, J., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SUSAN J. DERENGOSKI, Defendant-Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID C. BAUMANN, Defendant-Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NANCY BEATTY, Defendant-Appellant.—THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JENNIFER M. MOTON, Defendant-Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VICKI MILLER, Defendant-Appellant.—THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHAD STRITTMATTER, Defendant-Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER P. WENDT, Defendant-Appellant.—THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDREW WILLIAM WATSON, Defendant-Appellant.
    Fourth District
    Nos. 4—92—0943, 4—92—0944, 4—92—0991, 4—92—1034, 4-92-1035, 4-92-1037, 4-93-0172, 4-93-0176 cons.
    Argued July 21, 1993.
    Opinion filed July 29, 1993.

      Daniel D. Yuhas (argued), of State Appellate Defender’s Office, of Springfield, for appellants.
    Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten and Robert J. Biderman (argued), both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On our motion these cases are consolidated for disposition because they present identical issues common to several or all defendants.

These convictions arose following the arrest of 73 people, including defendants, who staged a protest at a medical facility in Champaign which provides abortion services. Each defendant was convicted of criminal trespass to real property in violation of section 21 — 3(a) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 21 — 3(a)) and no question is raised about the sufficiency of those convictions. In addition, four defendants — Derengoski, Beatty, Wendt, and Watson — were convicted of resisting a peace officer in violation of section 31 — 1 of the Code (Ill. Rev. Stat. 1991, ch, 38, par. 31 — 1). Each defendant, as part of the sentence he or she received, was ordered to pay $68.50 in restitution to the Champaign police department, which represents the proportionate share of the additional costs the department incurred in policing the protest.

On appeal, the defendants convicted of resisting a peace officer contend the informations by which they were charged were duplicitous and void. In addition, all defendants challenge the restitution order contending the Champaign police department is not a “victim” within the meaning of the restitution statute. (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5 — 6.) We affirm the convictions and reverse the restitution awards.

The informations charging defendants Derengoski, Beatty, Wendt, and Watson are substantively identical. They state that the offense of resisting a peace officer was committed:

“in that said defendant knowingly resisted the performance of John Gnagey, Wayne Roosevelt, Roosevelt, Brent Colclasure, Jeff Jolley, Rob Morris, Jeff Munds, Thomas Walton, John Schweighart, James Summers, Donald Carter, Melinda Kumler, and/or Donald Shepard, of an authorized act within their official capacity, namely: the arrest and booking of defendant knowing John Gnagey, Wayne Roosevelt, Brent Colclasure, Jeff Jolley, Rob Morris, Jeff Munds, Thomas Walton, John Schweighart, James Summers, Donald Carter, Melinda Kumler, and/or Donald Shepard to be peace officers engaged in the execution of their official duties, in that defendant lay limp and had to be lifted and carried from the property located at 301 E. Springfield Ave., Champaign, Illinois, by stretcher.” (Emphasis added.)

The only deviation from the quoted language involves the inclusion of the name of an additional police officer, Michael Paulus, in the informations pertaining to defendants Wendt and Watson.

Relying upon People v. Heard (1970), 47 Ill. 2d 501, 266 N.E.2d 340, and its progeny, defendants contend that the use of the disjunctive “or” with respect to the particular police officers whom defendants may have resisted rendered the charges duplicitous and void. We disagree.

In Heard, the supreme court held that a charge which follows the language of the statute defining the crime and uses the disjunctive “or” will not be sufficient where the statute names disparate and alternative acts, any of which will constitute the offense. (Heard, 47 Ill. 2d at 504, 266 N.E.2d at 342.) The rationale for the rule is that the use of the disjunctive in charging specific acts which are clearly disparate and alternative causes uncertainty and conjecture as to which of the alternatives the accused is charged with committing. (Heard, 47 Ill. 2d at 504-05, 266 N.E.2d at 342.) In Heard, for example, defendant was charged with gambling in that she set up or promoted a policy game or sold or offered to sell or transferred or knowingly possessed either a ticket or a policy ticket. Similarly, in People v. Capitol News, Inc. (1990), 137 Ill. 2d 162, 174-75, 560 N.E.2d 303, 308-09, the supreme court concluded that a charge that defendants “sold or delivered” an obscene magazine was duplicitous because the charged acts were disparate and alternative and either one of them would have constituted a distinct offense.

No such problem arises in this case. The single act with which defendants were charged was they resisted a peace officer by lying limp, requiring that they be lifted and carried from the property of the clinic. The identity of the particular peace officer or officers whom each defendant resisted is not an element of the offense. All that is required is that any police officer be resisted in the manner charged. For this reason, the charge is not duplicitous because it does not allege disparate or alternative elements of the offense. People v. Baugh (1986), 145 Ill. App. 3d 133, 139, 495 N.E.2d 688, 692.

Next, each defendant challenges the restitution award which ordered reimbursement of $68.50 to the Champaign County police department for the pro rata expenses the department incurred in effectuating the arrest of all of the protestors. At the various sentencing hearings, evidence was introduced that the Department incurred substantial manpower costs in controlling the demonstration which resulted in the arrest of 73 people. Among these costs, totalling $5,000.92, were $3,293.97 in overtime salary for police officers, $221.39 for a SWAT team, $1,032 for summoning the fire department, $168 to feed the police officers, and $85.56 in overtime for a clerk to subsequently calculate the expenses incurred by the Department.

The State concedes that the vast weight of authority has held that a police department or government agency is not considered a “victim” within the meaning of the restitution statute (Ill. Rev. Stat. 1991, ch. 38, par. 1005—5—6). (People v. Chaney (1989), 188 Ill. App. 3d 334, 544 N.E.2d 90; People v. Winchell (1986), 140 Ill. App. 3d 244, 488 N.E.2d 620; People v. Gaytan (1989), 186 Ill. App. 3d 919, 542 N.E.2d 1163; People v. Evans (1984), 122 Ill. App. 3d 733, 461 N.E.2d 634; People v. Lawrence (1990), 206 Ill. App. 3d 622, 565 N.E.2d 322; People v. McGrath (1989), 182 Ill. App. 3d 389, 538 N.E.2d 855.) The stated rationale in each of these cases is that where public money is expended in pursuit of solving crimes, the expenditure is part of the investigatory agency’s normal operating costs and the agency in not considered a “victim” for purposes of restitution. Chaney, 188 Ill. App. 3d at 335, 544 N.E.2d at 91.

Notwithstanding this authority, the State asserts, without citation to authority, that this precedent is without statutory “textual foundation” and, in any event, these overtime expenses are extraordinary expenditures for which the State ought to be reimbursed. However, as the court stated in Evans, it would “strain the commonly accepted understanding of the word ‘victim’ so as to include the [governmental] agency” (Evans, 122 Ill. App. 3d at 740, 461 N.E.2d at 639), when public monies are expended in the pursuit of solving crime or maintaining the public order.

The authority cited by the State, People v. Strebin (1991), 209 Ill. App. 3d 1078, 568 N.E.2d 420, and People v. Gray (1992), 234 Ill. App. 3d 441, 600 N.E.2d 887, is readily distinguishable. In each of those cases, restitution was awarded to a public agency which paid for medical or counseling services rendered to a direct victim of the crime. The rationale for providing restitution in those cases was premised on statutory language permitting restitution to unnamed victims and insurers which provide, without cost, services to an indigent victim for injuries related to a defendant’s criminal behavior. To hold otherwise, the court concluded, would render the actual victim’s indigence a fortuitous occurrence for the defendant, freeing him from a financial obligation he would otherwise bear had the actual victim paid the out-of-pocket expenses directly.

In this case, no such situation is present. There is no “private” victim who is being made whole by the government for criminal conduct. These expenses were incurred solely as a result of the police department’s ongoing, normal duty to maintain public order. To the extent the public may be entitled to a “remedy,” the court is entitled to consider imposing a fine upon a defendant, an authorized disposition for these offenses. (Ill. Rev. Stat. 1991, ch. 38, pars. 1005—9—1(a)(2), (a)(3).) Because the trial court erred in awarding restitution to the Champaign police department, that portion of its orders is reversed.

For the foregoing reasons, defendants’ convictions and sentences, except for the restitution order, are affirmed. The restitution orders are reversed.

Affirmed in part; reversed in part.

KNECHT and COOK, JJ., concur.