Albazzaz v. Dept. of Professional Regulation, No. 1-98-3133
1st District, May 11, 2000
FOURTH DIVISION Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION andNIKKI ZOLLAR, Director, Defendants-Appellees. No. 98 CH 911 Honorable Thomas P. Durkin, JudgePresiding. JUSTICE BARTH delivered the opinion of this court: Plaintiff, Ala Albazzaz, M.D., filed a complaint for administrative review against the Illinois Department of ProfessionalRegulation (the Department) and its Director in the circuit court of Cook County. Therein, Albazzaz contested theDepartment's conclusion that he had violated two provisions of the Medical Practice Act in connection with the care andtreatment of six female patients. The circuit court affirmed the Director's order in its entirety. That order provided, amongother things, for the indefinite suspension of Albazzaz's license (but for a minimum of five years), and for Albazzaz to pay afine of thirty thousand dollars ($30,000), due within thirty days from the date the Director signs a final order. Albazzaz has raised the following issues on appeal: whether the findings were against the manifest weight of the evidence;whether there was prejudicial error in not admitting into evidence expert testimony offered by Albazzaz; whether there wasprejudicial error in not admitting other evidence offered by Albazzaz in mitigation of the sanction; whether there wasprejudicial error in using an administrative warning letter as evidence in aggravation; whether the sanctions imposed onAlbazzaz are unduly harsh, intended as punishment or otherwise violative of law; and whether the administrative complaintviolated 5 ILCS 100/10-25(A)(3) of the Administrative Procedures Act. Background This matter is based on a second amended complaint filed by the Department against Albazzaz. Six counts relating to thecare and treatment of six female patients remained at the end of the administrative hearing. Those counts alleged thatAlbazzaz violated the Medical Practice Act of 1987 and Department rules by engaging in dishonorable, unethical, orunprofessional conduct of a character likely to deceive, defraud or harm the public and by engaging in immoral conduct inthe commission of any act, including but not limited to, the commission of an act of sexual misconduct related to [his]practice. (225 ILCS 60/22(A)(5) and (A)(20) (1996)). Albazzaz, 46 years old at the time of the 1997 hearing, graduated from medical school in his native Iraq. He is married andhas three children. Albazzaz left Iraq in 1981, after completing a medical internship, one year of military service, andapproximately two years of teaching and private practice in general medicine. After coming to Chicago, he completed aone-year pediatric residency with Rush University Medical School and a three-year internal medicine residency withLoyola University, Hines Veterans Administration Hospital. After working two years in hospital emergency rooms,Albazzaz was hired as a primary care physician by Humana Managed Health Care. Licensed in Illinois and Indiana,Albazzaz is Board certified in internal medicine. He has no special training in gynecology. Prior to the commencement of his employment with Humana, the Department investigated a complaint lodged againstAlbazzaz. At the conclusion of the investigation in June, 1991, the Department sent Albazzaz an "Administrative WarningLetter." In that letter, the Department indicated that it had decided against initiating formal charges for allegedly engagingin unprofessional conduct of a character likely to deceive, defraud or harm the public. The Department further indicatedtherein that its decision was based in part on Albazzaz's agreement that a nurse be present during his future examinations offemale patients. Humana was unaware of the administrative warning letter. Each of the women who testified during the administrative hearing had HMO coverage and received care at the Humanaclinic where Albazzaz worked. Albazzaz was assigned as their primary care physician. Two of the women also testified atAlbazzaz's criminal trial, which resulted in acquittal. Those two women met in connection with that trial; otherwise, none ofthe six women knew each other. [Nonpublishable material removed under Supreme Court Rule 23]. The Hearing Officer's Report and Recommendation At the close of the evidence, the hearing officer issued a report, recommending that the Medical Disciplinary Board adopthis findings and conclusions, including the following: the six complaining witnesses were credible; Albazzaz was notcredible; and Albazzaz violated the Medical Practice Act of 1987 by engaging in dishonorable, unethical, or unprofessionalconduct of a character likely to deceive, defraud, or harm the public and by engaging in immoral conduct in the commissionof any act, including but not limited to, the commission of an act of sexual misconduct related to the licensee's practice (225ILCS 60/22 (A)(5) and (A)(20) (1996)). The hearing officer also recommended that Albazzaz's medical license besuspended indefinitely for a minimum of 5 years, that he be fined $30,000, that he be required to successfully complete aSpecial Purpose Examination ("SPEX") prior to petitioning for restoration, and that any restoration be conditioned onAlbazzaz not being allowed to examine female patients in an unchaperoned environment. The Director's Decision and the Recommendation of the Medical Disciplinary Board The Board adopted the findings of fact and conclusions of law made by the hearing officer. The Board rejected, in part, thehearing officer's recommendation regarding the type of discipline imposed on Albazzaz's license, making instead thefollowing recommendations: indefinite suspension for a minimum of 5 years; payment of a $30,000 fine within 30 days ofthe Director's final order; and the successful completion of the SPEX. Additionally, in conjunction with a petition for restoration, Albazzaz would be required to provide: documentation of timelypayment of the $30,000 fine and successful completion of the SPEX; a written report of a psychiatric evaluation performedby a psychiatrist pre-approved by the Medical coordinator within 6 months prior to the filing of the petition, which showsthat Albazzaz can practice medicine with reasonable judgment, skill and safety; and proof that he is deemed sufficientlyrehabilitated to warrant the public trust in accordance with department regulations. The Board also required that restorationbe conditioned upon Albazzaz not being allowed to examine or treat female patients. Albazzaz filed a timely petition for rehearing. The Director issued a decision denying the petition for rehearing andadopting the findings, conclusions, and recommendations of the Board. Albazzaz filed a timely complaint for administrativereview. The circuit court of Cook County affirmed the Director's decision in its entirety. Albazzaz timely appealed. Analysis [Nonpublishable material removed under Supreme Court Rule 23] IV. The Sanctions Albazzaz argues that the sanctions imposed were unduly harsh, intended as punishment, or otherwise violative of law.Specifically, he contends that in addition to the fact that they are impermissibly punitive, the Department lacked theauthority to issue the sanctions herein in the first place. Preliminarily, we note that a reviewing court will not interfere with an agency's decision to impose a certain sanction unlessthe agency acted unreasonably or arbitrarily or chose a sanction which is unrelated to the purpose of the statute. BallinDrugs, Inc. v. Illinois Department of Registration and Education, 166 Ill. App. 3d 520, 531, 519 N.E.2d 1151 (1988). TheState of Illinois has a legitimate interest in regulating medical professionals in order to promote and protect the publicwelfare, and the Medical Practice Act was enacted in accordance with this goal. Potts v. Illinois Department of Registrationand Education, 128 Ill. 2d 322, 333, 538 N.E.2d 1140 (1989). Next, we point out that although it is the Department, and not the courts, that bears the responsibility to determine sanctionsfor individual cases necessary to protect the public, a reviewing court has the authority to review a sanction imposed. Obasiv. Department of Professional Regulation, 266 Ill. App. 3d 693, 704, 639 N.E.2d 1318 (1994). A sanction will be affirmedunless it constitutes an abuse of discretion. This will be found where the Department imposes a sanction that is (1) overlyharsh in view of the mitigating circumstances or (2) unrelated to the purpose of the statute. Pundy v. Department ofProfessional Regulation, 211 Ill. App. 3d 475, 488, 570 N.E.2d 458 (1991). Albazzaz was found to have committed repeated violations of the Medical Practice Act, and these violations involvedmultiple patients. The Department imposed a number of sanctions, each of which is challenged by Albazzaz, and each ofwhich will therefore be reviewed in turn. First, the Department recommended indefinite suspension, but for a minimum of 5 years, of Albazzaz's license. Albazzazargues that such a suspension is harsh, effectively ending his medical career. We agree that the sanction is severe althoughwe decline to find it overly harsh, or otherwise an abuse of the Department's authority. We therefore defer to theDepartment's expertise and experience. Obasi, 266 Ill. App. 3d at 704. Albazzaz additionally argues that the Department is without the authority to set a definite term for his suspension. Thisargument is based on Sections 60/22 and 60/43 of the Medical Practice Act of 1987. (225 ILCS 60/22 and 60/43 (1998)).Section 60/22 provides, in part relevant to this appeal: And Section 60/43 provides: Albazzaz contends, without citation to relevant authority, that 60/43 allows a license to be restored at any time, and thus anyattempt by the Department to impose a minimum duration for suspension is in conflict with this language andimpermissible. Moreover, he maintains, there is no statutory language authorizing the Department to impose a suspensionfor a certain amount of time. We reject Albazzaz's interpretation of these Sections, both individually and read together. Revocation or suspension of a medical license is a powerful sanction which will, at least temporarily, deprive the medicalprofessional of his or her livelihood. Massa v. Department of Registration and Education, 116 Ill. 2d 376, 388, 507 N.E.2d814 (1987). We are aware that, in developing a scheme of regulation in this area, the general assembly has chosen to requirethat the Medical majority of members of the Disciplinary Board be physicians. (225 ILCS 60/7(A) (1998)). We believe it isreasonable to infer that, based on its composition, the Board brings to its disciplinary decisions the perspective of themedical profession. Such a perspective obviously entails a recognition of the considerable ramifications of suspending alicense, and therefore suspension as a sanction is not likely to be lightly imposed. Conversely, the impact of a disciplinary decision, and the ability of the Board to carry out the purposes of the MedicalPractice Act would be greatly undermined if, as Albazzaz urges, Section 60/43 were read to allow a physician to petition forrestoration the day after the Director signs an order suspending his or her license for 5 years. Such a scenario wouldseverely impair the ability of the Disciplinary Board to carry out the Act's purposes which, as noted above, includeregulating the medical profession while promoting and protecting the public welfare. Rather, we interpret the language of60/43 to mean that once a physician has completed the term of his or her sanction, the Department may, "at any time after,"restore the license to him or her. (225 ILCS 60/43 (1998) emphasis added)). Such a reading is, in our view, consistent withSection 1285.255 of the Rules for Administration of the Medical Practice Act, which contains a (non-exhaustive) list offactors for the Disciplinary Board to consider in determining whether to grant a petition for the restoration of a medicallicense. Among those factors are "[t]he length of time which elapsed since the disciplinary action was taken;" "[t]heprofession, occupation and outside activities in which the applicant has been involved;" [a]ny counseling, medicaltreatment, or other rehabilitative treatment received by the applicant;" and "[w]hether probationary terms which may havebeen imposed have been complied with." (68 Ill. Admin. Code 1285.255 (1998)). These factors clearly contemplate that aperiod of time will have passed since the imposition of the sanction, during which the offender, it is hoped, will movetowards rehabilitation and renewed fitness to practice medicine. See generally Middleton v. Clayton, 128 Ill. App. 3d 623,629, 470 N.E.2d 1271 (1984). This in turn connotes that the Board, in the exercise of its knowledge and experience andbased on the severity of the offense(s) in question (Massa, 116 Ill. 2d at 388), may set at least a minimum term on asanction when it is issued. Illinois courts have repeatedly affirmed such decisions. See e.g., Ziporyn v. Zollar, 311 Ill. App.3d 638, 724 N.E.2d 180 (1999) (indefinite suspension of medical license); Siddiqui v. Department of ProfessionalRegulation, 307 Ill. App. 3d 753, 718 N.E.2d 217 (1999) (6 month suspension of medical license); Singh v. Department ofProfessional Regulation, 252 Ill. App. 3d 859, 625 N.E.2d 656 (1993) (minimum 5 year suspension of pharmacist'slicense); and Wegmann v. Department of Registration and Education, 61 Ill. App. 3d 352, 377 N.E.2d 1297 (1978) ( 6month suspension of dentistry license). Finally on this issue, Albazzaz points to the language of 60/22 and urges this court to find that the Board was withoutstatutory authority to impose a time frame on the suspension of his license, since that Section provides only for theimposition of the sanction itself. Administrative agencies, such as the Disciplinary Board, exercise purely statutory powers and possess no inherent orcommon law powers. Newkirk v. Bigard, 109 Ill. 2d 28, 37, 485 N.E.2d 321 (1985). Therefore, any authority the agency hasto act must arise either from the express language of the Act, or by fair implication and intendment from those expressprovisions, as an incident to achieving the objectives for which the agency was created. City of Chicago v. IllinoisCommerce Commission, 294 Ill. App. 3d 129, 136-37, 689 N.E.2d 241 (1997). As noted above, the Medical Practice Actwas enacted to ensure that the healthcare needs of the citizenry are being attended to by qualified, competent medicalpersonnel. To that end, the Act gives the Disciplinary Board the explicit power to impose the sanction of suspension whencertain specified violations have been proven. (225 ILCS 60/22 (1998)). We find that, by fair implication and intendmentfrom that express provision, the Board is also authorized to impose a length of time, as was done in the instant case, duringwhich a suspension should be enforced. Next, we turn to the Board's requirement that, as a condition on the restoration of Albazzaz's license, he not be allowed toexamine or treat female patients. Albazzaz contends that this too is a sanction which is beyond the Board's authority toimpose. In support, he points to the language of Section 60/37, which authorizes the Board to limit the scope of a licensee'spractice only under certain circumstances. (225 ILCS 60/37 (1998)). That Section provides: Albazzaz contends that the Board's authority to limit the scope of practice is triggered only where disciplinary action otherthan suspension or registration is taken. We agree. The interpretation of a statute is a question of law. Oregon Community Unit School District No. 220 v. Property Tax AppealBoard, 285 Ill. App. 3d 170, 175, 674 N.E.2d 129 (1966). An administrative agency's finding on a question of law or aninterpretation of a statute, including a statute it is charged with administering, is not binding upon this court. Branson v.Department of Revenue, 168 Ill. 2d 247, 254, 659 N.E.2d 961 (1995). The language of 60/37 suggests that the Board'soptions, suspension/revocation, or other disciplinary action (meaning the accused would still retain his or her license), aremutually exclusive with respect to its authority to impose additional limitations. The logic is apparent, as there would belittle need to limit the scope of practice of a medical professional whose license has already been suspended or revoked. Weaccordingly determine that this sanction is unreasonable. Next, Albazzaz argues that the sanction of a $30,000 fine, to be paid within thirty days of the date on which the Directorsigns a final order, is unduly harsh in light of his dire financial circumstances as of the date of the hearing, and furthermore,is without statutory authority. We note first that the imposition of a fine as a sanction, even where imposed in conjunctionwith suspension, is authorized by Section 60/22(A) of the Medical Practice Act. (225 ILCS 60/22(A)(1998)). And as to the"harshness" of the amount of the fine, we again defer to the agency's exercise of its discretionary authority.(1) Dharmavaramv. Department of Professional Regulation, 216 Ill. App. 3d 514, 529, 576 N.E.2d 361 (1991). However, we do agree withAlbazzaz that there is no statutory authority permitting the Board to mandate payment of the fine within thirty days. SeeArmstead v. Sheahan, 298 Ill. App. 3d 892, 894, 700 N.E.2d 149 (1998) (actions or decisions which are beyond the scope ofan administrative agency's authority are void). Thus, although prompt payment of the fine is certainly desirable, it cannot,under the authority of the Medical Practice Act, be mandated. Next, Albazzaz argues that the requirements imposed by the Board with respect to his filing of a petition for restoration willeventually be heard by a different Board, at a different time.(2) The discretion of that Board, he explains, should not befettered by the pronouncements of this Board, five years prior. We find Albazzaz's argument less persuasive than hisreference to Administrative Rule 1285.255. (68 Ill. Admin. Code 1285.255 (1998)). As noted earlier in this opinion, thisRule sets forth the criteria for the Board to consider when evaluating a petition for the restoration of a license. Administrative agencies are authorized, within the statutes which create them, to determine, define and implement suchstatutes through the adoption of rules and regulations. See e.g., Granite City Division of National Steel Co. v. IllinoisPollution Control Board, 155 Ill. 2d 149, 155, 613 N.E.2d 719 (1993); 225 ILCS 60/8(F). When an agency has acted in itsrulemaking capacity, a court will not substitute its judgment for that of the agency. Granite City, 155 Ill. 2d at 162. By thesame token, an agency is itself bound by the rules it promulgates, and must adhere to them. Kaszynski v. Department ofPublic Aid, 274 Ill. App. 3d 38, 45, 653 N.E.2d 1330 (1995). In this case, the Licensing Board has promulgated a set offactors which must be considered each time it reviews a petition for restoration. This list (though non-exhaustive) purportsto contain the sole bases for a Board's review in such a hearing. When and if he petitions for restoration of his medicallicense, Albazzaz is therefore entitled to be evaluated on the basis of those considerations only, without regard to the"requirements" set by the Board which imposed his suspension. Thus, while this court does not presume to substitute its judgment for that of the Board, it is our duty to see that, once a rulehas been promulgated, the agency abides by its provisions. See Monsanto Co. v. Pollution Control Board, 67 Ill. 2d 276,289-91, 367 N.E.2d 684 (1977). We find the petition for restoration requirements to be invalid. Conclusion For the foregoing reasons, the decision of the Department is affirmed in part, reversed in part, and remanded with directionsfor entry of an order consistent with this opinion. Affirmed in part, reversed in part, and remanded. SOUTH and HALL, J.J., concur. 1. 00000 60/22 allows for the imposition of a fine up to $5,000 for each violation of the Act; Albazzaz was found to havecommitted 6 separate violations. 2. 00000 These requirements include: (1) that he provide documentation of having paid the fine within thirty days; that heprovide documentation of having successfully completed the SPEX examination; (3) that he submit a written report of apsychiatric evaluation performed withing 6 months of the filing of the petition, which states that he can practice medicinewith reasonable judgment and safety; (4) that psychiatrist must be pre-approved by the Medical coordinator, and Albazzazmust pay for the exam himself; and(5) that he prove he is sufficiently rehabilitated to warrant the public trust in accordancewith Section 1285.255.ALA ALBAZZAZ, Appeal from the Circuit Court of CookCounty. "(A) The Department may revoke, suspend, place on probationary status, or take any other disciplinary action as theDepartment may deem proper with regard to the license or visiting professor permit of any person licensed under thisAct to practice medicine, or to treat human ailments without the use of drugs and without operative surgery upon anyof the following grounds:
(5) Engaging in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harmthe public.
(20) Immoral conduct in the commission of any act including, but not limited to commission of an act of sexualmisconduct related to the licensee's practice." (225 ILCS 60/22 (1998)).
"At any time after the suspension, revocation, placing on probationary status, or taking disciplinary action with regardto any license, the Department may restore it to the accused person, or take any other action to reinstate the license togood standing, without examination, upon the written recommendation of the Disciplinary Board." (225 ILCS 60/43(1998)).
"If disciplinary action, other than suspension or revocation is taken, the Disciplinary Board may recommend that thedirector impose reasonable limitations and requirements upon the accused registrant to insure compliance with theterms of probation or other disciplinary action including, but not limited to, regular reporting by the accused to theDepartment of their actions, placing themselves under the care of a qualified physician for treatment, or limiting theirpractice in such a manner as the Director may require." (225 ILCS 60/37 (1998)).