RICHARD MARTIS, on Behalf of Himself and All Others Similarly Situated, Plaintiff-Appellant, v. PEKIN MEMORIAL HOSPITAL, INC., a Not-For-Profit Corporation, d/b/a Pekin Hospital and Progressive Health Systems, et al., Defendants-Appellees, 395 Ill. App. 3d 943

JUSTICE LYTTON delivered the opinion of the court: Plaintiff, Richard Martis, filed a complaint against defendants, Pekin Memorial Hospital, Data Management, Inc., and Peoria-Tazewell Pathology Group and its individual shareholders. Defendants filed motions to dismiss, which the trial court granted. We affirm. In October 2004, plaintiff’s physician instructed plaintiff to undergo laboratory testing at Pekin Memorial Hospital. Plaintiff did not have medical insurance at the time of the testing.

At the hospital, plaintiff received a form authorizing treatment, which stated in pertinent part: “I understand, some physicians who furnish professional services to me (the patient), whether that care or service is provided directly or indirectly, are independent contractors and are not agents or employees of the hospital. This provision includes, but is not limited to radiologists, pathologists, anesthesiologists and any physicians called in as consultants. The hospital does not bill for the services rendered by each physician that tends to my needs during the course of my care and treatment.

By signing_(initial) I agree to pay these charges for physician services if my health plan does not cover all of the physician charges.” Plaintiff placed his initials where indicated on the form. Approximately one month later, plaintiff received two bills for the tests: one from the hospital for $609 and one from the pathology group for $73.30. The bill from the pathology group contained the following explanation of services: “You recently had some laboratory work performed at the hospital noted on the front of this statement.

The laboratory at this hospital is directed by the medical group of pathologists as referenced on the front of this statement. A pathologist is a physician who specializes in applying medical knowledge and judgment to the testing of laboratory specimens. This bill is for the professional services of a pathologist of the named group. These services do not necessarily involve personal review of your test(s). They include the pathologist’s supervision of the laboratory to make sure that your results are timely and medically reliable.

They also include the pathologist’s availability— seven days a week, 24 hours a day — to review any result that is questionable and to discuss various medical issues that might be raised about your test results by your doctor. The hospital will make a separate charge for its role in your testing.

That charge will cover the Hospital’s costs in furnishing the space, equipment, and technician’s service involved with your test(s). *** PROFESSIONAL COMPONENT SERVICES You may receive a bill from the pathologists for their professional component services which are required, by law, for the operation of the clinical laboratory. These services are provided on a 24 hours a day, seven days a week basis and include, but are not limited to: 1. Assuring that tests, examinations, and procedures are properly performed, recorded and reported. 2.

Interacting with members of the medical staff regarding issues of laboratory operations, quality and test availability. 3. Designing protocols and establishing parameters for performance of clinical testing. 4. Recommending appropriate follow-up diagnostic tests, when appropriate. 5. Supervising laboratory technical personnel and advising them about aberrant results. 6. Selecting, evaluating and validating test methodologies. 7. Direct, performing, and evaluating quality assurance and control procedures. 8.

Evaluating clinical laboratory data and establishing a process for review of test results prior to issuance of patient reports. 9. Assuring the hospital’s laboratory’s compliance with state licensure laws, Medicare conditions, JCAHO standards, the College of American Pathologists Laboratory Accreditation Program and federal certification standards.” Plaintiff filed a two-part complaint against defendants.

Part II consisted of nine counts that alleged defendants double-billed for their services. Plaintiff alleged that the pathology group and its members violated the Medical Practice Act of 1987 (225 ILCS 60/1 et seq. (West 2006)), the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2006)), and the Medical Patient Rights Act (410 ILCS 50/1 et seq. (West 2006)), and that they were unjustly enriched. He further alleged that the hospital violated the Medical Patient Rights Act and the Consumer Fraud Act and that it was unjustly enriched.

Finally, plaintiff alleged that Data Management violated the Consumer Fraud Act. Plaintiff requested declaratory and injunctive relief against all defendants on behalf of himself and others similarly situated. Defendants filed motions to dismiss plaintiffs complaint. The trial court granted the motions, holding that professional component billing is not actionable. We review de novo the trial court’s order granting defendants’ motions to dismiss for failure to state a claim. See Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 473, 905 N.E.2d 781, 789 (2009). I.

Medical Practice Act Claims Plaintiff argues that the pathology group’s practice of billing for professional component services violates

section 22(A)(14) of the Medical Practice Act because such services are not “actually and personally rendered” to patients. Defendants respond that plaintiff has no private right of action under the Act and, even if he did, defendants did not violate the Act. The Medical Practice Act is a regulatory statute designed to protect the public health and welfare from those not qualified to practice medicine. Ikpoh v. Department of Professional Regulation, 338 Ill. App. 3d 918, 926, 789 N.E.2d 442, 449 (2003); Tovar v. Paxton Community Memorial Hospital, 29 Ill. App. 3d 218, 220, 330 N.E.2d 247, 249 (1975).

Section 22(A)(14) of the Act prohibits fee-splitting and other fee-sharing arrangements. TLC The Laser Center, Inc. v. Midwest Eye Institute II, Ltd., 306 Ill. App. 3d 411, 427, 714 N.E.2d 45, 56 (1999). Specifically,

section 22(A)(14) states that a physician may be disciplined for the following conduct: “Dividing with anyone other than physicians with whom the licensee practices in a partnership, Professional Association, limited liability company, or Medical or Professional Corporation any fee, commission, rebate or other form of compensation for any professional services not actually and personally rendered.” 225 ILCS 60/ 22(A)(14) (West 2006). The conduct that the legislature seeks to prohibit in

section 22(A)(14) is (1) fee-splitting for patient referrals between licensees and (2) fee-sharing arrangements, “whereby a licensee ‘divides with anyone’ *** a percentage of the monies earned by the licensee for medical services he or she has performed.” (Emphasis omitted.) Vine Street Clinic v. Healthlink, Inc., 222 Ill. 2d 276, 292, 856 N.E.2d 422, 433-34 (2006). The purpose of

section 22(A)(14) is to ensure that physicians are making responsible and appropriate medical decisions that are not motivated by monetary compensation. As the court in TLC stated: “The policy reasons behind the prohibition are the danger that such an arrangement might motivate a nonprofessional to recommend a particular professional out of self-interest, rather than the professional’s competence.

In addition, the judgment of the professional might be compromised, because the awareness that he would have to split fees might make him reluctant to provide proper (but unprofitable) services to a patient, or, conversely, to provide unneeded (but profitable) treatment.” TLC, 306 Ill. App. 3d at 427, 714 N.E.2d at 56. An arrangement that does not relate patient care to an increase or decrease in revenue does not violate

section 22(A)(14) of the Act. See Vine Street Clinic, 222 Ill. 2d at 296, 856 N.E.2d at 435-36. The primary rule of statutory construction is to ascertain and give effect to the legislature’s intent and meaning. Brucker v. Mercola, 227 Ill. 2d 502, 513, 886 N.E.2d 306, 313 (2007). The language of the statute is the best indication of legislative intent. Brucker, 227 Ill. 2d at 513, 886 N.E.2d at 313. All provisions of a statute are viewed as a whole. Brucker, 227 Ill. 2d at 514, 886 N.E.2d at 313.

Accordingly, all words and phrases must be interpreted in light of other provisions of the statute and must not be construed in isolation. Brucker, 227 Ill. 2d at 514, 886 N.E.2d at 313. Each word, clause and sentence of the statute must be given meaning and not rendered superfluous. Brucker, 227 Ill. 2d at 514, 886 N.E.2d at 313. In determining the legislative intent, a court may properly consider not only the language of the statute, but also the purpose of the law, the evils sought to be remedied, and the goals to be achieved. Brucker, 227 Ill. 2d at 514, 886 N.E.2d at 313.

If we assume for purposes of this decision that a private right of action exists under the Medical Practice Act, plaintiff has nonetheless failed to establish that defendants engaged in fee-sharing or fee-splitting. Plaintiff alleged that defendants violated

section 22(A)(14) of the Act by charging for services “not actually and personally rendered.” However,

section 22(A)(14) does not prohibit such conduct. Rather,

section 22 (A) (14) prohibits fee-splitting and fee-sharing for services “not actually and personally rendered.” 225 ILCS 60/ 22(A)(14) (West 2006); TLC, 306 Ill. App. 3d at 427, 714 N.E.2d at 56.

According to the bill the pathology group sent to plaintiff and the form plaintiff signed upon entering the hospital, the bills from the hospital and pathology group are for separate services: the hospital bills for its “costs in furnishing the space, equipment, and technician’s service,” while the pathology group bills for “the professional services of a pathologist.” Two separate entities sending bills for different services is not fee-splitting or fee-sharing. Thus, plaintiff has failed to allege a violation of

section 22(A) (14) of the Act. See Vine Street Clinic, 222 Ill. 2d at 296, 856 N.E.2d at 436. The trial court properly dismissed plaintiffs Medical Practice Act claims. II. Consumer Fraud Act Claims Plaintiff argues that defendants violated the Consumer Fraud Act by (1) failing to comply with the Medical Practice Act, and (2) billing for services not directly provided to a patient, which is unfair and deceptive. The Consumer Fraud Act is intended to protect consumers against unfair and deceptive business practices. Ramirez v. Smart Corp., 371 Ill. App. 3d 797, 806, 863 N.E.2d 800, 811 (2007).

The elements of a claim under the Consumer Fraud Act are: an unfair or deceptive act or practice by the defendant; the defendant’s intent that plaintiff rely on the deception; the occurrence of the deception during a course of conduct involving trade or commerce; and actual damage to the plaintiff proximately caused by the deception. Ramirez, 371 Ill. App. 3d at 806, 863 N.E.2d at 811-12. To be unfair, the defendant’s conduct must: (1) offend public policy; (2) be immoral, unethical, oppressive, or unscrupulous; and (3) cause substantial injury to consumers. Ramirez, 371 Ill. App. 3d at 806, 863 N.E.2d at 812. A.

Medical Practice Act The Illinois legislature has identified 29 statutes which, if violated, will constitute an unlawful practice within the meaning of the Consumer Fraud Act. 815 ILCS 505/2Z (West 2006). The Medical Practice Act is not one of the named statutes. See 815 ILCS 505/2Z (West 2006). When certain things are enumerated in a statute, that enumeration implies the exclusion of all other things even if there are no negative words of prohibition. See People ex rel. Daley v. Grady, 192 Ill.

App. 3d 330, 333, 548 N.E.2d 764, 766 (1989) (applying the statutory rule of construction of expressio unius est exclusio alterius (“the expression of one thing is the exclusion of another”) (Black’s Law Dictionary 521 (5th ed. 1979))). Plaintiff claims that defendants’ alleged violation of the Medical Practice Act constitutes a violation of the Consumer Fraud Act. We disagree. First, as we have already found, plaintiff failed to state a claim for violation of the Medical Practice Act. Second, even if plaintiff had properly alleged a violation, such a violation does not constitute an unlawful practice.

The Medical Practice Act is not included in

section 2Z of the Consumer Fraud Act. If the legislature had intended Medical Practice Act violations to constitute unlawful practices under the Consumer Fraud Act, it could have included them in

section 2Z. See McCabe v. Crawford & Co., 210 F.R.D. 631, 640 (N.D. Ill. 2002) (provision of the Illinois Vehicle Code not listed in

section 2Z could not form the basis for a Consumer Fraud Act claim). Because the Medical Practice Act is not an enumerated statute under

section 2Z, an unlawful practice cannot be implied, and plaintiffs claim must fail. B. Unfair or Deceptive Practice Next, we must determine if plaintiff has adequately alleged that defendants’ practice of billing for professional component services of pathologists is unfair or deceptive. The practice of professional component billing by pathology groups has been litigated in several courts. In the majority of cases, courts have upheld the practice. See Central States, Southeast & Southwest Areas Health & Welfare Fund v.

Pathology Laboratories of Arkansas, P.A., 71 F.3d 1251 (7th Cir. 1995); Health Options, Inc. v. Palmetto Pathology Services, P.A., 983 So. 2d 608 (Fla. App. 2008); Arizona Society of Pathologists v. Arizona Health Care Cost Containment System Administration, 201 Ariz. 553, 38 P.3d 1218 (App. 2002). But see Central States, Southeast & Southwest v. Florida Society of Pathologists, 824 So. 2d 935 (Fla. App. 2002). In Central States v.

Pathology Laboratories of Arkansas, an employee welfare plan brought suit under the Employee Retirement Income Security Act (ERISA), seeking to enjoin Pathology Laboratories from billing patients directly for professional component services. The Seventh Circuit refused to prohibit Pathology Laboratories from billing patients directly for professional component services because “patients agreed when entering the Baptist Hospitals to pay all bills, whether or not the fees were covered by insurance.” Pathology Laboratories, 71 F.3d at 1253.

The court found that professional component fees were not “bogus” because the pathology group “provides supervisory services of value to all patients, and

interpretation services of value to some.” Pathology Laboratories, 71 F.3d at 1253. In Health Options, a pathologists’ group brought an action against a health maintenance organization (HMO) to recover payment for professional component services. In Florida, an HMO must pay for services rendered by a provider to an HMO member as long as it is “medically necessary and approved physician care rendered to a non-Medicare subscriber.” Health Options, 983 So. 2d at 614, citing Fla. Stat. Ann. §641.3154(1) (2005); Fla. Admin. Code Ann. 690— 191.049(2) (2005).

The HMO contended that professional component services were not “approved physician care.” The court disagreed, finding that “physician care” includes care that is “supervised by physicians,” such as supervisory duties of pathologists. Health Options, 983 So. 2d at 614. The court noted that Florida law previously required services to be “rendered directly to the HMO member,” but the current law “removed and thereby rejected the word ‘directly.’ ” (Emphasis added.) Health Options, 983 So. 2d at 615.

Thus, the court held that pathology services rendered to a patient “are compensable whether or not a pathologist and patient meet directly.” Health Options, 983 So. 2d at 615. In Arizona Society of Pathologists, the court determined that a state pathologists’ organization and private pathology group were entitled to injunctive relief barring a state health-care agency (AHCCCS) from enforcing a policy statement not to reimburse them for indirect costs, such as supervising the laboratory.

AHCCCS contended that the policy statement was merely a recitation of existing Arizona law, which made it unlawful to bill AHCCCS for services “not provided.” See Ariz. Rev. Stat. §36 — 2918(A)(1) (1999). The court disagreed, finding that Arizona law “does not in and of itself disallow payment for indirect pathology services.” Arizona Society of Pathologists, 201 Ariz. at 558, 38 P.3d at 1223. The court found that indirect pathology services are not items or services “not provided as claimed.” Arizona Society of Pathologists, 201 Ariz. at 558, 38 P.3d at 1223.

One court has ruled that patients are not obligated to pay for professional services rendered by pathologists. In Florida Society of Pathologists, a group of pathologists sought damages for unfair trade practices and tortious interference with business relationships against Central States for sending letters to its members advising that they should not pay for professional component charges.

In support of its claim that patients were required to pay professional component fees, Florida Society cited to admission forms mentioning that patients “may receive bills from pathologists, anesthesiologists and other professionals.” Florida Society of Pathologists, 824 So. 2d at 939.

The court found that the forms did not obligate patients to pay for professional component services, explaining: “[W]e see nothing that obliges a patient to pay for what might be characterized as the pathologists’ overhead and/or a pro rata share of hands-on pathology services performed for another patient.” Florida Society of Pathologists, 824 So. 2d at 939. After our review of these cases and the Illinois Consumer Fraud Act, we find that defendants’ professional component billing was not an unfair or deceptive practice.

Before any of plaintiff’s pathology tests were performed, plaintiff was notified that he must pay for services “provided directly or indirectly” to him and that he would receive separate bills for such services. When plaintiff placed his initials on the authorization form, he obligated himself to pay for indirect professional component services. See Pathology Laboratories of Arkansas, 71 F.3d at 1253; Health Options, 983 So. 2d at 615.

Since plaintiff was notified and agreed that he would be responsible for indirect, as well as direct, services, defendants billing plaintiff for those services was not deceptive or unfair. Under these circumstances, we do not find that the actions of the defendants offended public policy, were immoral, unethical, oppressive, or unscrupulous or caused substantial injury to plaintiff. See Ramirez, 371 Ill. App. 3d at 806, 863 N.E.2d at 812. The trial court properly ruled that plaintiff’s consumer fraud claims failed to state a cause of action. III.

Unjust Enrichment Claims Plaintiff argues that defendants’ billing for professional pathology services constituted unjust enrichment. To state a cause of action based on a theory of unjust enrichment, a plaintiff must allege that the defendant has unjustly retained a benefit to the plaintiffs detriment and that the defendant’s retention of the benefit violates the fundamental principles of justice, equity and good conscience. Kovilic v. City of Chicago, 351 Ill. App. 3d 139, 147, 813 N.E.2d 1046, 1053-54 (2004). The theory of unjust enrichment is based on a contract implied in law. Ramirez, 371 Ill.

App. 3d at 808, 863 N.E.2d at 813. Where there is an express contract that governs the relationship of the parties, the doctrine of unjust enrichment has no application. Ramirez, 371 Ill. App. 3d at 809, 863 N.E.2d at 814. Here, plaintiff entered into a contract with the hospital, pursuant to which he agreed to pay for all direct and indirect services provided to him by independent physicians. Pathologists were expressly mentioned in the contract; thus, they were intended third-party beneficiaries to it. See In re Marriage of Simmons, 355 Ill. App. 3d 942, 955, 825 N.E.2d 303, 314 (2005).

Since the relationship of plaintiff and defendants was governed by an express contract, plaintiff has failed to state a claim for unjust enrichment. See Ramirez, 371 Ill. App. 3d at 809, 863 N.E.2d at 814. IV Violation of the Medical Patient Rights Act Plaintiff argues that the hospital and pathology group violated

section 3(

b) of the Medical Patient Rights Act because they did not provide him with a “reasonable explanation” of the professional service component charges. Defendants respond that plaintiff does not have a private right of action under the Act and that, even if he did, he failed to state a claim under the Act.

Section 3(

b) of the Act enumerates certain patient rights: “The right of each patient, regardless of source of payment, to examine and receive a reasonable explanation of his total bill for services rendered by his physician or health care provider, including the itemized charges for specific services received. Each physician or health care provider shall be responsible only for a reasonable explanation of those specific services provided by such physician or health care provider.” 410 ILCS 50/3(b) (West 2006). Here, we need not decide whether the Medical Patient Rights Act allows a private right of action since we find that plaintiff has failed to state a claim under the Act.

Section 3(

b) of the Act is violated when a medical provider fails to give a patient a “reasonable explanation” of a medical bill.

The bill the pathology group sent to plaintiff specifically explains that it is “for the professional services of a pathologist,” which does “not necessarily involve personal review of your test(s)” but includes “the pathologist’s supervision of the laboratory to make sure that your results are timely and medically reliable” and “the pathologist’s availability — seven days a week, 24 hours a day — to review any result that is questionable and to discuss various medical issues that might be raised about your test results by your doctor.” The bill then describes professional component services, listing nine examples of such services.

The bill contains a clear and thorough explanation of defendants’ charges. We find this disclosure to be a “reasonable explanation of [the] specific services provided” by the pathology group. The trial court correctly found that plaintiff failed to state a cause of action under the Medical Patient Rights Act. Y. CONCLUSION The order of the circuit court of Tazewell County is affirmed. Affirmed. HOLDRIDGE, J., concurs.

Part I challenged the hospital’s billing practices toward uninsured patients. Plaintiff and the hospital entered into a settlement agreement disposing of those claims. Only the claims contained in

part II are relevant for purposes of this appeal.