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Smith v. Dept. of Reg. & Education

OPINION FILED JUNE 4, 1952.

GEORGE FRANKLIN SMITH, APPELLANT,

v.

THE DEPARTMENT OF REGISTRATION AND EDUCATION ET AL., APPELLEES.



APPEAL from the Superior Court of Cook County; the Hon. JOHN A. SBARBARO, Judge, presiding.

MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:

This is a proceeding based upon the provisions of the Administrative Review Act (Ill. Rev. Stat. 1949, chap. 110, pars. 264-279, incl.,) to review the findings and the decision of the Department of Registration and Education which, through its Director, adopted the findings and recommendation of the Medical Examining Committee and revoked the license of George Franklin Smith to practice medicine in all of its branches in the State of Illinois. A complaint for review was filed in the superior court of Cook County where, after many sessions, the revocation order was affirmed by that court and the appeal therefrom brings the case here.

On March 8, 1950, Lucy Boehne, of Evansville, Indiana, one of appellant's patients, filed a sworn complaint against Dr. Smith with the Department of Registration and Education charging violation of the Medical Practice Act. Pursuant thereto, a citation was issued by the Director of the administrative agency addressed to appellant, and with it a copy of the complaint was served upon the appellant on March 11, 1950. Therein a date for the hearing on said charges was fixed for April 13, 1950, and appellant was directed to file his sworn answer to the complaint within twenty days or by March 31, 1950. By stipulation, the time for answering or otherwise pleading was extended to April 12, 1950, and on that date appellant filed a sworn motion to dismiss the citation and complaint and also filed a sworn petition for the disqualification of the medical committee which had been appointed by the Director to hear the charges. Subsequently, on April 25, 1950, appellant filed his supplemental affidavit in support of the disqualification petition, detailing further charges of bias and prejudice against said medical committee.

The appellant was accorded a hearing before the medical committee on May 3, 1950, on his motion to dismiss the citation and complaint and his petition for disqualification of the medical committee. On the same date both the motion and petition were denied. Thereupon appellant was granted until May 13, 1950, within which to file his sworn answer to the complaint, and the hearing on the charges was set for May 18, 1950. Immediately thereafter, appellant sought, in strict compliance with applicable statutes, to take the prehearing deposition of Lucy Boehne, the complainant, at her home in Evansville, Indiana, on May 17, 1950, and presented his application for a dedimus potestatem to the Director on May 16, 1950. The Director, however, refused to issue the dedimus potestatem. On May 13, 1950, appellant filed his sworn answer to the complaint with the Director of the Department of Registration and Education.

On May 17, 1950, appellant unsuccessfully undertook to obtain a temporary injunction in the circuit court of Cook County, cause No. 50C4848, to restrain the Director of the administrative agency, its counsel, the members of the medical committee and their attorneys from proceeding with the hearing on the complaint scheduled for May 18, 1950.

On May 18, 1950, the counsel for appellant appeared before the medical committee solely to plead that the hearing on the complaint be continued so that appellant might take depositions necessary to his defense and in particular he might accomplish a prehearing deposition of the complainant, Lucy Boehne. This was promptly denied. Whereupon, appellant and his counsel left the hearing room and refused to return and participate in the trial. The medical committee then proceeded with the hearing on the complaint in the absence of appellant and his counsel. A number of witnesses were heard, including the complainant. Upon its conclusion, the committee took the matter under advisement.

Thereafter, on August 12, 1950, the appellant was notified that the medical committee had recommended revocation of his license to practice medicine in all of its branches and that the recommendation had been approved by the Director of the administrative agency and its superintendent of registration.

September 15, 1950, appellant sent to the Director by registered mail, his motion for rehearing. On November 8, 1950, a supplemental motion for rehearing was mailed to the Director. November 20, 1950, all of the motions for rehearing were denied by the Director, and on January 5, 1951, the administrative agency sent to appellant a copy of the revocation order executed by the Director revoking appellant's license to practice medicine in Illinois, with a copy of the report, findings and recommendation of the medical committee.

The appellant filed in the superior court of Cook County, in cause No. 51S2337 on February 8, 1951, a complaint for review of said final administrative decision and praying that said revocation order might be reversed. Subsequently, on March 19, 1951, the court entered its order affirming the administrative decision and filed therewith a written opinion.

As we have heretofore indicated, the medical committee elected to proceed with the hearing on the charges against appellant on May 18, 1950, in the absence of the doctor and his counsel. The administrative agency called five witnesses, to-wit, Mrs. Lucy Boehne, the complainant, and her husband Edward J. Boehne, Dr. Thomas B. Bondus, Kate Edison, and Dr. M. Alice Phillips. One of the principal contentions made by appellant on this appeal is that the administrative agency made findings of fact which were not supported by the evidence. Consequently, it becomes necessary for us to recite rather fully in this opinion the testimony of the several witnesses in the ex parte hearing.

Mrs. Lucy Boehne testified that she visited the appellant's office on May 9, 1949, because she had not been well for quite sometime and had become ill while visiting in Chicago; that after she disclosed her symptoms to appellant he gave her certain tests and a general physical examination; that the next day he reported to her that she had a malignant tumor the size of a large hen egg; that he also told her that she would have no occasion to worry because he would administer the "Koch Treatment" which was an absolute cure; and that he told her she had fistules and later performed an operation removing them. Mrs. Boehne further testified that during the second week of her experience with Dr. Smith he told her "since you are the mother of three children, at least one out of the three will be a positive case," and he recommended that all three of the children should "by all means have the test, and if they show positive they should have the `glyoxylide' injection because that would keep them from having cancer;" that appellant suggested that she see Dr. Bondus, and she visited him twice, and he failed to find a tumor; that she visited appellant's office first every day then later three times a week and then after that twice a week. She also testified that her husband and their children each received an urinalysis and blood test; that appellant announced that the "baby was a positive and should by all means have a one-third injection so that she would never have cancer;" that the second child had moles and was negative "but that they could turn cancerous;" that the third child was negative but would be helped by the "Koch Treatment;" and that he recommended that her husband receive an injection of glyoxylide for "that would keep him from ever having cancer." Her testimony further revealed that appellant suggested that she go to the Cancer Prevention Center to check on his diagnosis in addition to her seeing Dr. Bondus. There were exhibits in evidence indicating that the Boehne family had paid appellant the sum of $585. This bill covered many series of allergy tests, all office calls, injections and operations covering a period of several months.

Mr. Boehne testified that on May 11, 1950, appellant told him that Mrs. Boehne was very sick, and that she had a malignant tumor about the size of a hen egg, but that she should not have to worry because the "Koch Treatment" would take care of her, that she should have colonic irrigations and allergy tests, that she was very toxic which accounted for her being emotionally upset and her sleepiness, and that she was very anemic; and that appellant suggested to him that the children should be examined as a precautionary measure, that the youngest child was a "cancerous candidate and all should have the shot that it would kill the infection," and that the shot he referred to was "what goes with the `Koch Treatment,' glyoxylide." Dr. Bondus testified that he was a physician and surgeon, duly licensed to practice medicine in the State of Illinois and had done so for a quarter of a century; that he had examined Mrs. Boehne at the request of appellant; that he told her she had a small fibroid tumor of the uterus; that on one of his examinations it was disclosed that Mrs. Boehne had bleedings and once bled for two weeks and passed heavy blood clots; that it was debatable as to whether or not such bleeding was due to fibroid or something else; that he found no malignant tumor on his examinations but that she could have had one and he did not find it. Kate Edison and Dr. M. Alice Phillips both testified that they are associated with the Cancer Prevention Center of Chicago; and they were visited by Mrs. Boehne June 6, 1949; that they did not find present at that time a cancer, but Dr. Phillips said that she could have had a cancer but she did not discover it. In response to a question as to whether or not she could tell from the record whether complainant was suffering from a cancer at that time she replied: "I can only say we did not find one."

It is claimed by appellant upon this appeal that the final administrative decision of the Department of Registration and Education revoking his license to practice medicine in the State of Illinois should be reversed for the following reasons: (1) That he was denied by said administrative agency the equal protection of the laws, guaranteed to him by section 1 of amendment XIV to the constitution of the United States; (2) that he had been denied a fair and impartial hearing of the charges against him before an unbiased and unprejudiced medical committee, which denial constituted a denial of that due process of law guaranteed by section 2 of article II of the constitution of the State of Illinois and amendments V and XIV of the constitution of the United States; (3) that he was denied a right to take complainant's prehearing discovery deposition which thus prevented his properly preparing his defense; (4) that the evidence adduced at the hearing on May 18, 1950, does not support the findings of the medical committee upon which its recommendation that appellant's license be revoked was based; (5) that he was prejudiced by the arbitrary refusal of the Director to allow his motion for continuance made on May 18, 1950. There are other assignments of error, but it is not necessary to detail them, for in the main they appear to be variations of the five we have outlined above.

Section I of amendment XIV of the constitution of the United States reads in part as follows: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law." The United States Supreme Court in interpreting this section in the case of Ex parte Virginia, 100 U.S. 339, said: "We have said the prohibitions of the Fourteenth Amendment are addressed to the States. They are, `No State shall make or enforce a law which shall abridge the privileges or immunities of citizens of the United States, . . . nor deny to any person within its jurisdiction the equal protection of the laws.' They have reference to actions of the political body denominated a State, by whatever instruments or in whatever modes that action may be taken. A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provisions, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any ...


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