Parikh v. Division of Professional Regulation of the Department of Financial & Professional Regulation , 2014 IL App (1st) 123319 ( 2015 )

Illinois Official Reports
Appellate Court
Parikh v. Division of Professional Regulation of the Department of Financial &
Professional Regulation, 2014 IL App (1st) 123319Appellate Court MAHESH PARIKH, M.D., Plaintiff-Appellant, v. THE DIVISION
Caption OF PROFESSIONAL REGULATION OF THE DEPARTMENT OF
FINANCIAL AND PROFESSIONAL REGULATION and JAY
STEWART, Director, Defendants-Appellees.
District & No. First District, Second Division
Docket No. 1-12-3319
Filed November 4, 2014
Held The order of the Director of the Department of Financial and
(Note: This syllabus Professional Regulation that plaintiff’s medical license be indefinitely
constitutes no part of the suspended for a minimum of one year based on the finding that
opinion of the court but plaintiff, a neurologist, touched the breasts and pelvic area of a
has been prepared by the 19-year-old college student for no clinical purpose during several
Reporter of Decisions neurological examinations was upheld, notwithstanding the fact that
for the convenience of the order was contrary to the recommendation of the Department’s
the reader.) Medical Disciplinary Board and the administrative law judge, since
the Illinois Medical Practice Act did not require the Director to follow
the recommendations of the Board, the Director could have found by
clear and convincing evidence that plaintiff did inappropriately touch
his patient, the Director’s factual findings were not against the
manifest weight of the evidence, the determination of the legal effect
of the facts was not clearly erroneous, and the sanction imposed was
neither unreasonable nor arbitrary.
Decision Under Appeal from the Circuit Court of Cook County, No. 12-CH-10974; the
Review Hon. Franklin U. Valderrama, Judge, presiding.
Judgment Affirmed.
Counsel on Goldberg Law Group, LLC, of Chicago (Michael K. Goldberg, Robert
Appeal A. Bauerschmidt, and Jenna E. Milaeger, of counsel), for appellant.
Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Solicitor General, and Nadine J. Wichern, Assistant Attorney General,
of counsel), for appellees.
Panel JUSTICE PIERCE delivered the judgment of the court, with opinion.
Justices Neville and Liu concurred in the judgment and opinion.
OPINION
¶1 Appellant, Mahesh Parikh, M.D., a neurologist, appeals an order of administrative
proceeding where the Director of the Division of Professional Regulation (Director) ordered
that his medical license be indefinitely suspended for a minimum of one year. Parikh argues:
(1) the Director does not have the authority under the Illinois Medical Practice Act of 1987
(225 ILCS 60/1 et seq. (West 2010)) to make factual finding and credibility determinations
contrary to those made by the Medical Disciplinary Board of the Department (Board); (2) the
Director’s findings were against the manifest weight of the evidence; (3) the Director’s finding
on the legal effect of the facts is clearly erroneous; and (4) the Director abused his discretion by
indefinitely suspending Parikh’s medical license for at least a year. For the following reasons,
we affirm the decision of the Director acting on behalf of the Illinois Department of Financial
and Professional Regulation (Department).
¶2 BACKGROUND
¶3 The Department filed a two count complaint against Parikh, a neurologist licensed to
practice medicine in Illinois, on October 29, 2010. Count I alleged that on July 29, 2010,
during an office visit, Parikh examined L.K.’s breasts without wearing gloves and examined
her pubic area by pressing on the area near the clitoris region in violation of section 22(A) of
the Illinois Medical Practice Act of 1987 (Act) (225 ILCS 60/22(A)(5) (West 2010)). Count II
alleged that on August 24, 2009, during an office visit, Parikh examined L.K.’s breasts by
inserting an ungloved hand underneath her clothes, examined her vagina without wearing
gloves, hugged L.K. at the end of the exam and examined L.K. without providing a gown in
violation of section 22(A) of the Act (225 ILCS 60/22(A)(20) (West 2010)).
¶4 A hearing before an administrative law judge (ALJ) was held over three days in June,
August and September of 2011. On November 9, 2011, the ALJ issued a report assessing the
testimony of seven witnesses: L.K., the patient; her ex-boyfriend; her mother; Dane Michael
Chetkovich, a neurologist and the Department’s expert; Cynthia Monroe and Karen Hoff,
Parikh’s employees; and Parikh.
¶5 L.K. was a patient under Parikh’s care and treatment from December 12, 2008 through
August 24, 2009, for migraine headaches, anxiety and joint pain. L.K. was a 19-year-old
-2-
college student when she first began visiting Parikh’s office. L.K. testified that the blinds on
the window in the examination room door were closed during her eight appointments with
Parikh in 2008 and 2009. L.K. testified that during her third visit to Parikh’s office on March
20, 2009, she complained of breast tenderness along with other symptoms. With her
permission to conduct a breast examination, Parikh stuck his hand down her shirt, using two or
three fingers in a circular motion, and then squeezing her breasts with his hands and fingers.
L.K. estimated that Parikh touched her breasts for 30 seconds to 1 minute. He performed this
test once while she was sitting up and then again after she lay down. No one else was present
during the examination.
¶6 L.K. indicated that a similar breast examination occurred during a March 24, 2009
follow-up visit although she did not complain of breast tenderness and Parikh did not ask
permission. L.K. testified that similar incidents occurred during two separate visits in July
2009. In addition, L.K. claimed that during a July 29, 2009 visit, after conducting a similar
breast exam, Parikh stuck his hand down her pants, underneath her underwear, with two or
three fingers pushing into the pelvic area. L.K. felt uncomfortable about the examination, but
trusted that Parikh knew what he was doing. Additionally, on a July 2009 visit, L.K. was
accompanied by her then-boyfriend Brandon Olson because she felt uncomfortable seeing
Parikh. Olson stated that he heard Parikh ask permission to examine L.K.’s breasts and then
stuck his hand down her shirt. At that time Brandon looked away to give her some privacy.
¶7 L.K. also testified that during an August 2009 visit Parikh conducted another breast
examination and again stuck his hand down her pants. After receiving permission to continue,
he pushed into the pubic area above her clitoris. He then conducted yet another breast
examination and later stuck his hand up the leg of her shorts, touching her vaginal lips. Once
the exam was completed, L.K. told Parikh this would be her last visit since she was returning to
college. Parikh asked if he could hug her and gave her a “really squeezy bear hug.” L.K. told
her mother, Tina, about the uncomfortable visit with Parikh. Tina spoke to L.K.’s primary care
physician, with L.K.’s approval, about the nature of the examinations with Parikh. L.K.’s
primary care physician recommended calling the police.
¶8 L.K. spoke with the police. The police report prepared stated that L.K. told officers that
Parikh touched her breasts two appointments before the last one, but she testified that he first
touched her breasts during the third appointment. L.K. told the Department that the first time
Parikh touched her breasts was during the second appointment.
¶9 Brandon testified regarding the July 21, 2009, visit to Parikh’s office with L.K. Brandon
testified that he looked away out of respect for his girlfriend when Parikh’s hand went down
L.K.’s shirt. Parikh’s back was to him at the time so he could not see the examination. Brandon
testified that L.K. had complained about breast tenderness and that Parikh asked L.K. for her
permission to perform the examination.
¶ 10 Tina, L.K.’s mother, testified that she accompanied L.K. to Parikh’s office twice. During
one of the appointments, she left the examination room when Parikh started asking questions
about L.K.’s sexual history. Tina also testified about the conversation she had with L.K.,
L.K.’s primary care physician and the police.
¶ 11 Dr. Dane Michael Chetkovich, a board-certified neurologist, gave expert testimony for the
Department. Dr. Chetkovich testified that typically, neither a breast nor a pelvic examination
would be part of a neurological exam. Rather, if a breast or pelvic examination was indicated, a
neurologist would refer the patient to a gynecologist or general practitioner. In the rare case
-3-
where a neurologist would be required to conduct a breast or pelvic exam, the doctor would
document the reason for its necessity and report the results for diagnostic purposes.
Dr. Chetkovich opined that based on a review of L.K.’s medical records, there was no reason
for Parikh to perform a breast or pelvic exam. In addition, Dr. Chetkovich opined that the
exams described by L.K. would be an inappropriate and unprofessional touching of L.K.’s
breasts and pelvic area and that if the allegations were true, Parikh had failed to provide ethical
care and treatment to L.K.
¶ 12 Parikh testified as an adverse witness and on his own behalf. He stated that he was L.K.’s
neurologist between December 2008 and August 2009. He maintained throughout his
testimony that he did not perform breast or vaginal examinations on L.K. He further
maintained that either Tina, Brandon or one of his office assistants was in the examination
room for part of L.K.’s visits. Parikh stated that his assistant Cynthia Monroe was present
during the August 24, 2009, visit.
¶ 13 Dr. Parikh also called two of his office assistants to testify on his behalf. Monroe testified
the examination room has blinds which are generally kept open. From where she sits in the
office, Monroe can see into the examination room even when the door is closed, but cannot see
past the corner of the examination table. She is always allowed to enter the examination room
after knocking and does not wait for permission to enter. Dr. Parikh’s other office assistant,
Karen Hoff, gave substantially similar testimony on these points.
¶ 14 After reviewing the testimony and documentary evidence, the ALJ concluded that the
Department failed to prove its charges by clear and convincing evidence and recommended
that no action be taken against Parikh. The ALJ found that L.K. was confused about some
points and demonstrated a naivety unusual for a woman of her age and educational
background. The ALJ also found that her testimony was uncorroborated, except for Brandon’s
testimony regarding the one visit. The ALJ questioned Brandon’s reliability given that he
testified that he saw Parikh put his hand down L.K.’s shirt but then stated that Parikh’s body
blocked his view of the examination. The ALJ also found that Parikh testified credibly and
calmly and his testimony was consistent with the medical records.
¶ 15 On December 29, 2011, the Board adopted the ALJ’s findings of fact and conclusions of
law in its recommendations to the Director. The Department then filed a motion asking the
Director to take action contrary to the Board’s recommendation. The Department argued that it
proved the charges by clear and convincing evidence. The Department urged the Director to
find that Parikh had inappropriately touched L.K. based on testimony presented and the
conclusions that could be drawn therefrom, and find Parikh in violation of the Act.
¶ 16 On March 26, 2012, contrary to the Board’s and ALJ’s recommendation, the Director
issued an order determining the evidence was sufficient to prove the charges against Parikh by
clear and convincing evidence. The Director found that Parikh “overstepped his relationship
with a young, vulnerable patient and fondled her breasts and touched her pelvic area for no
clinical purpose during numerous neurological examinations” and “even fondled [L.K.’s]
breasts under the guise of a legitimate examination in the presence of the patient’s boyfriend.”
The Director found that L.K.’s naivety did not dispel her clear and consistent testimony of the
events occurring in Parikh’s office on multiple occasions. The Director also found that Parikh
testified that he did not recall any of the office visits with L.K. with any specificity, which
lessened the weight of his denials in the face of the testimony from L.K. and Brandon. Further,
the Director found that Parikh’s employees’ testimony should be given less weight in light of
-4-
their employment relationship and financial dependence on Parikh keeping his license to
practice medicine, as well as the fact that they were not in the examination room for L.K.’s
visits. The Director concluded:
“Respondent abused his position of trust and took advantage of his patient. L.K.
provided consistent, detailed testimony regarding six separate office visits during
which Respondent fondled her breasts and pelvic region. I find no reason to believe the
patient was mistaken or confused about what happened. Additionally, the
Department’s expert found the Respondent’s actions to serve no medical purpose and
to be unprofessional and unethical. Further, I find no motive on the part of the patient to
fabricate this story. There is no evidence that L.K. is unstable or suffered from a mental
illness that would render her unreliable. Instead, the patient and her mother state the
sole reason they came forward with a complaint was to protect other young women.”
Accordingly, the Director ordered that Parikh’s medical license be indefinitely suspended for a
minimum of one year.
¶ 17 Parikh immediately filed a complaint for administrative review and an emergency motion
to stay the Director’s order in the circuit court, which was denied. On April 20, 2012, Parikh
filed a timely notice of interlocutory appeal to this court, and on September 19, 2012, we
affirmed the judgment of the circuit court denying the stay. Parikh v. Division of Professional
Regulation of the Department of Financial & Professional Regulation, 2012 IL App (1st)
121226. The trial court upheld the decision of the Director on October 17, 2012. Parikh now
appeals from the Director’s finding.
¶ 18 ANALYSIS
¶ 19 Before we reach the merits of Parikh’s arguments, we must discuss the appropriate
standard of review in this case. Judicial review pursuant to the Administrative Review Law
(735 ILCS 5/3-101 (West 2010)) provides that this court review the Director’s decision and not
the decision of the ALJ or the circuit court. Lindemulder v. Board of Trustees of the Naperville
Firefighters’ Pension Fund, 408 Ill. App. 3d 494, 500 (2011). The standard of review we apply
depends on the question presented. Comprehensive Community Solutions, Inc. v. Rockford
School District No. 205, 216 Ill. 2d 455 (2005). When an issue of pure law is raised, we review
de novo. Village Discount Outlet v. Department of Employment Security, 384 Ill. App. 3d 522,
525 (2008). When the issue raised is one of fact, we will only ascertain whether such findings
of fact are against the manifest weight of the evidence. Provena Covenant Medical Center v.
Department of Revenue, 236 Ill. 2d 368, 386-87 (2010). A mixed question of law and fact is
reviewed under the clearly erroneous standard. Heabler v. Illinois Department of Financial &
Professional Regulation, 2013 IL App (1st) 111968, ¶ 17. Mixed questions of fact and law are
“questions in which the historical facts are admitted or established, the rule of law is
undisputed, and the issue is whether the facts satisfy the statutory standard,” or to put it another
way, whether the rule of law as applied to the established facts is or is not violated.
Pullman-Standard v. Swint, 456 U.S 273, 289 n.19 (1982).
¶ 20 Parikh first argues that the Director lacked the authority under the Act to make factual
findings and credibility determinations contrary to those made by the Board. This is a question
of law. Therefore, we review this issue de novo. Village Discount Outlet, 384 Ill. App. 3d at
525.
-5-
¶ 21 The primary rule of statutory construction is to ascertain and give effect to the intent of the
legislature. MD Electrical Contractors, Inc. v. Abrams, 369 Ill. App. 3d 309, 312 (2006).
Generally, the statutory language is the best evidence of the legislature’s intent, and such
language should be given its plain and ordinary meaning. Paris v. Feder, 179 Ill. 2d 173(1997). In interpreting a statute, we must construe words and phrases in light of other relevant
portions of the statute so that, if possible, no term is rendered superfluous or meaningless. West
Suburban Bank v. City of West Chicago, 366 Ill. App. 3d 1137, 1140 (2006). Moreover, “[a]
court is not permitted to ignore the plain meaning of the statute by reading into it exceptions,
limitations, or conditions that the legislature did not express.” Forest Preserve District v.
Loren & Gisela Brown Family Trust, 323 Ill. App. 3d 686, 692 (2001). “Only where the
language of the statute is ambiguous may the court resort to other aids of statutory
construction.” People v. Glisson, 202 Ill. 2d 499, 505 (2002).
¶ 22 The Director, in his written order, discussed the power bestowed on the Director to make
findings in contravention of the Board’s recommendation and cited to section 44 of the Act. An
agency’s decision on a question of law is not binding on a reviewing court. Cinkus v. Village of
Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200 (2008).
¶ 23 Section 44 of the Act states:
“None of the disciplinary functions, powers and duties enumerated in this Act shall be
exercised by the Department except upon the action and report in writing of the
Disciplinary Board.
In all instances, under this Act, in which the Disciplinary Board has rendered a
recommendation to the Director with respect to a particular physician, the Director
shall, in the event that he or she disagrees with or takes action contrary to the
recommendation of the Disciplinary Board, file with the Disciplinary Board and the
Secretary of State his or her specific written reasons of disagreement with the
Disciplinary Board. Such reasons shall be filed within 30 days of the occurrence of the
Director’s contrary position having been taken.
The action and report in writing of a majority of the Disciplinary Board designated
is sufficient authority upon which the Director may act.
Whenever the Director is satisfied that substantial justice has not been done either
in an examination, or in a formal disciplinary action, or refusal to restore a license, he
or she may order a reexamination or rehearing by the same or other examiners.” 225
ILCS 60/44 (West 2010).1
¶ 24 Parikh argues that the plain meaning of the first paragraph of section 44 requires the
Director to accept the Board’s recommendation. We disagree. The plain language of the first
paragraph prohibits the Department from engaging in disciplinary action without a written
report from the Board. Further, the plain and ordinary meaning of the second paragraph of
section 44 states that where the Director disagrees with or takes action contrary to the
recommendation of the Board, within 30 days of taking action contrary to the Board’s
recommendation, the Director shall file with the Board his or her specific written reasons of
disagreement. The second paragraph permits the Director to “disagree with” the Board. It also
clearly allows the Director to “take action” contrary to the recommendation “of the
1
Amended by Public Act 97-622, § 10 (eff. Nov. 23, 2011) to vest this authority in the Secretary of
the Department.
-6-
Disciplinary Board.” The third paragraph of this section gives the Director the authority to act
upon the Board’s recommendation where the majority of the Board makes the
recommendation. The fourth paragraph of section 44 does not similarly preclude the Director
from making findings contrary to the Board’s recommendation: it allows the Director the
opportunity to send the case back for a reexamination or a rehearing where the Director finds
the proceeding before the ALJ or the Board did not comply with due process. See Stojanoff v.
Department of Registration & Education, 79 Ill. 2d 394 (1980); Smith v. Department of
Registration & Education, 412 Ill. 332 (1952).
¶ 25 We find no language in the Act that requires the Director to follow the Board’s
recommendations, nor does Parikh cite to any. On the contrary, other sections of the Act
support our conclusion that the Director may act in contravention of the Board. Both sections
40 and 35 speak of the Board providing its recommendations to the Director. Section 40 states
that, “[a]t the expiration of the time allowed for filing a motion for rehearing, the Director may
take the action recommended by the Disciplinary Board.” (Emphasis added.) 225 ILCS 60/40
(West 2010). Section 35, which explains the procedure for disciplinary proceedings, states that
“[t]he hearing officer shall report his findings and recommendations to the Disciplinary Board
within 30 days of the receipt of the record. The Disciplinary Board shall have 60 days from
receipt of the report to review the report of the hearing officer and present their findings of fact,
conclusions of law and recommendations to the Secretary.” (Emphasis added.) 225 ILCS
60/35 (West 2010). Therefore, we conclude that legislative authority grants the Director the
authority to agree and act on the majority of the Board’s recommendation or to disagree with
the findings and recommendations of the Board subject to the standard of judicial review
applicable to the nature of the action taken.
¶ 26 Parikh next argues that the final decision of the Director must be reversed because the
Director shifted the burden of proof when he found that Parikh was not credible because he
denied the allegations being made by the patient. Parikh points to the Director’s statement in
his written order that reads, “I find the Respondent’s testimony less than credible due to the
repeated consistent statements from L.K. and the corroborating eyewitness account from her
ex-boyfriend.”
¶ 27 We disagree that this statement is indicative of improper burden shifting. It is the
Director’s function, as the fact finder, to weigh the evidence, determine the credibility of the
witnesses, and resolve conflicts in the evidence. Marconi v. Chicago Heights Police Pension
Board, 225 Ill. 2d 497, 540 (2006). The Director, in assessing the credibility of the witnesses
who testified before the ALJ, merely found L.K. more credible than Parikh.
¶ 28 Defendant also argues that the Director’s factual findings were against the manifest weight
of the evidence. Findings of fact and credibility determinations on review are held to be prima
facie true and correct and should not be overturned unless they are against the manifest weight
of the evidence. Cinkus, 228 Ill. 2d at 210. An administrative agency’s factual determinations
are against the manifest weight of the evidence if the opposite conclusion is clearly evident. Id.It is not our function to reevaluate witness credibility or resolve conflicting evidence. Morgan
v. Department of Financial & Professional Regulation, 374 Ill. App. 3d 275, 288-89 (2007). If
the issues are merely ones of conflicting testimony or credibility of witnesses, the
determinations of the agency should be upheld. Keen v. Police Board, 73 Ill. App. 3d 65(1979).
-7-
¶ 29 Because we cannot reweigh the evidence or reassess the credibility of the witnesses on
review, our sole inquiry is whether anything in the record supports the Director’s decision that
the facts supported, by clear and convincing evidence, that Parikh inappropriately touched
L.K. several times during her neurological examinations. We find that the Director’s factual
findings are not against the manifest weight of the evidence. In his order, the Director clearly
states that his decision is based on the “evidence presented at the hearing” before the ALJ and
that he considered “all of the evidence and testimony.” The testimony of L.K., coupled with
that of her boyfriend and her mother, provides enough evidence for us to conclude that the
Director could have found by clear and convincing evidence that Parikh inappropriately
touched L.K.’s breasts and pelvic area. L.K. testified that Parikh touched her breasts and pelvic
area on several occasions. Brandon’s testimony corroborated L.K.’s testimony, although he
did not actually see Parikh’s hand on her breasts. L.K.’s mother Tina testified that L.K. came to
her about Parikh because she was uncomfortable with the way Parikh was touching her. Based
on the testimony in the record, it is not “clearly apparent” that Parikh did not inappropriately
touch L.K.’s breasts. Although the Director weighed the conflicting evidence differently and
made credibility assessments in disagreement with the ALJ, the Director’s findings are to be
afforded deference even when his findings differ from those of the ALJ. Wilson v. Department
of Professional Regulation, 317 Ill. App. 3d 57 (2000). The fact that we may have found
otherwise is not sufficient to find that the Director’s decision is against the manifest weight.
¶ 30 Parikh also argues that the final decision of the Director must be reversed because it was
not based on the evidence and therefore was against the manifest weight of the evidence.
Parikh actually misstates the standard of review with respect to this argument. We review pure
questions of fact under the manifest weight standard. Cinkus, 228 Ill. 2d at 210. The Director’s
decision on the legal effect of a given set of facts–such as whether Parikh’s conduct constituted
a violation of the Act–presents a mixed question of law and fact and is reviewed under the
clearly erroneous standard. Heabler, 2013 IL App (1st) 111968, ¶ 17. The clearly erroneous
standard of review lies between the manifest weight of the evidence standard and the de novo
standard, and lends some deference to the agency’s decision. Lombard Public Facilities Corp.
v. Department of Revenue, 378 Ill. App. 3d 921 (2008). The Board’s decision will be deemed
clearly erroneous only where, upon review of the entire record, we are “left with the definite
and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.)
AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 393
(2001).
¶ 31 The Director made a determination as to the legal effect of the facts, as we have already
discussed. Specifically, the Director found that Parikh abused his position of trust and took
advantage of his patient during six separate office visits when he fondled L.K.’s breasts and
pelvic region. Based on this conduct, the Director found that Parikh engaged in dishonorable,
unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public
in violation of section 22(A)(5) of the Act (225 ILCS 60/22(A)(5) (West 2010)) and engaged in
immoral conduct in the commission of any act including but not limited to commission of an
act of sexual misconduct related to the licensee’s practice in violation of section 22(A)(20) of
the Act (225 ILCS 60/22(A)(20) (West 2010)).
¶ 32 As previously discussed, the Director’s factual findings are not against the manifest weight
of the evidence. Accordingly, the determination regarding the legal effect of the facts, that
based on his conduct plaintiff violated the Act, was not clearly erroneous.
-8-
¶ 33 Finally, we address Parikh’s argument that the sanction imposed must be reversed because
it is overly harsh. As previously stated, the Director suspended Parikh’s medical license
indefinitely but for at least one year.
¶ 34 A reviewing court defers to the administrative agency’s expertise and experience in
determining what sanction is appropriate to protect the public interest. Massa v. Department of
Registration & Education, 116 Ill. 2d 376, 388 (1987). A reviewing court will not interfere
with an agency’s decision to impose a particular sanction unless the decision is unreasonable,
arbitrary or unrelated to the purpose of the relevant statute. Singh v. Department of
Professional Regulation, 252 Ill. App. 3d 859, 870 (1993).
¶ 35 Prior to a recent amendment, section 22 of the Act provided that the Department “may
revoke, suspend, place on probationary status, refuse to renew, or take any other disciplinary
action as the Department may deem proper with regard to the license or visiting professor
permit of any person issued under this Act to practice medicine” based upon “dishonorable,
unethical or unprofessional conduct of a character likely to deceive, defraud or harm the
public” and “[i]mmoral conduct in the commission of any act including, but not limited to,
commission of an act of sexual misconduct related to the licensee’s practice.” 225 ILCS
60/22(A), (A)(5), (A)(20) (West 2010). The Act now reads that the Director “may revoke,
suspend, place on probation, reprimand, refuse to issue or renew, or take any other disciplinary
or non-disciplinary action as the Department may deem proper.” 225 ILCS 60/22(A) (West
2012).
¶ 36 Parikh argues that, even assuming all of the factual findings of the Director were true,
similarly situated physicians were given six-month suspensions in Reddy v. Department of
Professional Regulation, 336 Ill. App. 3d 350 (2002), and Pundy v. Department of
Professional Regulation, 211 Ill. App. 3d 475 (1991), where there were far more offending
incidents, allegations of intercourse and a much greater span of time involved.
¶ 37 In Reddy, a psychiatrist professed his love for his patient during a psychiatric treatment
session, moved her into the home that he shared with his wife and children, divorced his wife,
and married his patient. Reddy, 336 Ill. App. 3d at 352. After an administrative hearing, the
ALJ found that Reddy’s behavior warranted discipline because the evidence showed that his
behavior was unethical, unprofessional, and immoral under the Act, and Reddy suffered from a
mental illness that resulted in his inability to practice medicine with a reasonable degree of
judgment under the Act. The ALJ recommended that Reddy’s medical license be placed on
two years’ probation “with certain restrictions on plaintiff’s practice of medicine.” Id. The
Board accepted the ALJ’s findings, but based on the “egregious” nature of the offense,
recommended a more severe penalty of a six-month suspension of his medical license. Id. The
Department accepted the Board’s recommendation and issued an order suspending Reddy’s
license for six months and prohibited Reddy from supervising other medical practitioners. Id.
This court affirmed the Department’s order and held that the Department did not abuse its
discretion in imposing the six-month suspension. Id.
¶ 38 In Pundy v. Department of Professional Regulation, 211 Ill. App. 3d 475, 479 (1991), a
psychiatrist began a sexual relationship with one of his patients. During the course of their
relationship, the psychiatrist hired the patient to work in his office, eventually allowing her to
act as a “co-therapist” and to be present during other patients’ psychiatric sessions. Id.¶ 39 Multiple psychiatrists testified as expert witnesses on behalf of Pundy. These experts
testified that Pundy had not violated any medical ethics by entering into a sexual relationship
-9-
with his patient. Id. at 480. The ALJ determined that there was no credible evidence to support
a finding of a clear and convincing violation of the Act and recommended that no punishment
be imposed. Id. However, the Board declined to follow the ALJ’s recommendation, finding
that Pundy was guilty of unprofessional conduct likely to harm the public and recommended
that the Department suspend his medical license for six months, followed by a two-year
probationary period. Id. The Department accepted the Board’s recommendations and ordered
the punishment recommended. Id.
¶ 40 On appeal, Pundy argued that the sentence was arbitrary and overly harsh. Id. at 488.
Despite his arguments that he had been exploited by his patient and had taken steps to mitigate
any harm done to his patient by terminating the psychiatrist-patient relationship, we found that
the Department did not abuse its discretion in suspending Pundy. Id.
¶ 41 We find Reddy and Pundy factually distinguishable. Both Reddy and Pundy, psychiatrists,
engaged in consensual, loving relationships with partners that happened to be patients. In this
case, Parikh used his position of trust and authority as L.K.’s physician to violate her by
touching her breasts and pelvic area. Parikh’s actions were more egregious than those in Reddy
or Pundy, and the punishment imposed reflects that.
¶ 42 Finally, we consider whether the punishment was unrelated to the purpose of the statute.
The purpose of the Act is 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
(2003).
¶ 43 The Director in this case found that Parikh abused his position of trust as a physician and
took advantage of his patient. In addition, the Director found that Parikh’s actions served no
medical purpose. Clearly, this is the type of conduct subject to disciplinary regulation that the
statute contemplates. Therefore, we do not find that a one-year mandatory suspension with an
indefinite duration thereafter is an unreasonable or arbitrary penalty, nor do we find it to be
unrelated to the statute, where Parikh can petition to restore his license one year from the date
of the Director’s order.
¶ 44 CONCLUSION
¶ 45 For the foregoing reasons, we affirm the judgment of the Department.
¶ 46 Affirmed.
- 10 -