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Demarco v. University of Health Sciences





APPEAL from the Circuit Court of Cook County; the Hon. DANIEL A. COVELLI, Judge, presiding.


The defendant, University of Health Sciences/The Chicago Medical School, an Illinois not-for-profit corporation, appeals from a judgment of the circuit court of Cook County compelling it to issue the degree of Doctor of Medicine to the plaintiff, Pasquale DeMarco.

The issues on review are whether a court has the authority to compel the award of an academic degree, whether the plaintiff complied with the requirements of the degree of Doctor of Medicine, whether the plaintiff has suffered harm which would justify equitable relief, whether the plaintiff is estopped from avoiding a special agreement with the school, whether the plaintiff's claim is barred by the doctrine of "unclean hands", whether the plaintiff's claim is barred by laches, and whether the court erred in permitting testimony barred by the Dead Man's Act.

The plaintiff graduated from Long Island University in June of 1940 and enrolled in the Middlesex Medical School, an unaccredited institution located in Waltham, Massachusetts, in September of 1940. He testified he became disillusioned with its program and its financial ability to continue in operation. As a result he attended classes irregularly and was dismissed by Middlesex.

On July 19, 1941, DeMarco applied for admission to the Chicago Medical School, which at that time was also unaccredited. One of the questions on the application inquired: "Have you attended another medical school?" DeMarco answered "no," believing the question was directed at whether he was seeking to transfer credits. He erroneously testified that the next question on the application inquired as to what credits he might be seeking. Another question on the two-page application inquired as to why the student was applying to the school. DeMarco answered: "I am applying because I heard through a friend of mine that Dr. Bergmann of Middlesex Medical School considers the faculty at this school one of the best, especially the anatomy department."

DeMarco was admitted to the school and began classes on September 29, 1941. From that time to June 17, 1944, the plaintiff successfully completed all but the final six weeks of his senior (fourth) year. At the end of the third year, he had a ranking of 23 in a class of 58.

As a result of correspondence with the plaintiff's draft board, the Chicago Medical School discovered that he had attended the Middlesex Medical School. When confronted with the information by Dr. Sheinin, the dean of the school, DeMarco replied it was common knowledge that he had. After a promotions committee meeting, Dr. Sheinin dictated a letter of "resignation" to his secretary, Miss Lubeck. She typed it and then DeMarco copied it in his own handwriting. DeMarco testified Dr. Sheinin told him that if he entered the armed forces and was honorably discharged, he would be readmitted. At that time the school's catalog provided:

"The school reserves the right to accept students with the unconditional understanding that they may be required to withdraw at any time for failure to conform with the rules of the school, of if found by the Faculty Council to be unfit to pursue the study of medicine. * * *"

At the time of his "resignation" he was six weeks short of completing his fourth year of medical school, at which time he would have qualified for a Bachelor of Medicine degree. A Doctor of Medicine degree was awarded upon completion of a year of internship to students who so qualified.

DeMarco testified that shortly before being dismissed he had a conversation with Dr. Sheinin and Miss Lubeck concerning his failure to make a $500 contribution to the school as he had promised. He said he did not have the funds at that time because his father had just died. Dr. Sheinin stated the school could not live on promises. Miss Lubeck told DeMarco that he was the only student who had not contributed. She had a list of names with dollar amounts written alongside them, and he could see there was no figure written alongside his name.

DeMarco was honorably discharged from the armed services in 1946 and sought readmission to the school, but was rejected. His attempts to be readmitted in 1947 and 1948 were also rejected. After 1948, he worked as a detail man for a pharmaceutical firm and owned and operated several nursing homes. Since 1955 he has operated and expanded the Northwest Hospital in the City of Chicago as executive director.

In the early 1950's DeMarco had a conversation with Dr. Sheinin concerning his readmission. Dr. Sheinin told him he was trying to get committees together to reaccept him into the school.

In 1968 DeMarco went to Dr. Leroy Levitt, who was the dean of the school at that time. Levitt told him there was a completely new board and he had not made any efforts to make friends, that he had not made any contributions to the School to make himself known. DeMarco replied he had given $7500 a few years earlier, but that Dr. Sheinin had failed to publicize it. In 1968 or early 1969, DeMarco went to see Sol Hoffman, a trustee of the school. DeMarco related his story to Hoffman, who said he would look into the problem. As a result DeMarco met with Dr. Taylor, the president of the school. Taylor told him that it required a lot of money to educate a student and that the tuition fees charged were not adequate for this purpose. Every returning student was expected to contribute his share. DeMarco said he would contribute $40,000 and on December 30, 1969, made a first installment payment of $2500 toward his pledge.

On September 9, 1970, Dean Levitt reported to the faculty council as follows in relevant part:

"I wish to bring to your attention a matter that has weighed heavily upon the conscience of this institution for almost three decades. It is time now for us to consider rectifying this decision, and giving Mr. DeMarco an opportunity to participate in this correction. The fundamental moral issue here is that a punishment was levied against Mr. DeMarco that possibly far exceeded the `crime.' He was also probably given other assurances and qualifications, but when fulfilled, did not reverse the primary decision. The basic facts are briefly as follows.

Mr. DeMarco's defense as to the falsification of his application to the Chicago Medical School was on the basis that the question posed was not pertinent insofar as he was not asking credit for the brief work in a Class B medical school that was in the process of disintegration. Aside from the fact that the Chicago Medical School, between the years 1940-1950 was struggling valiantly to become accredited and therefore was, as always, exquisitely sensitive to reactions of the accrediting agencies, the issue remains that he did not openly answer that particular question truthfully. It is entirely conceivable that in his single-minded desire to study medicine, he made an assumption that Middlesex was not to be considered as a school, particularly since he had little involvement with them. Further, the application blank of that time needed or demanded no attestation of correctness by the applicant, as the case is currently.

It is really the School's responsibility to check out each admitted student in the first weeks after acceptance as to the accuracy of their record. Previous record of medical school attendance (with exception of foreign schools) can be easily obtained. Swift action can be taken early; but to dismiss, expel, or have withdraw a student 6 weeks before commencement on the basis of a misstatement 4 years previous seems to be a punitive exactment of extraordinary severity and is morally unjustifiable."

On September 18, 1970, Dean Levitt wrote a letter to the plaintiff stating that the board of trustees had rescinded its previous action of January 30, 1948, in which he was denied admission and recommended to the administration that a favorable consideration be given his request for readmission to the fourth year of the medical curriculum. The letter also stated that the Committee on Admission had recommended he be readmitted providing specific requirements were met. Those requirements are as follows:

1. Three letters of recommendation.

2. A passing grade on Part I of the National Board Examination.

3. Completion of four quarters (48 weeks) of full-time clinical clerkships, which would include all of the major subjects.

4. A passing grade on Part II of the National Board Examination.

The letter concluded: "It is my understanding that in your preliminary discussions with Doctor Taylor and Doctor Shaffer, you indicated that these requirements were reasonable and that you wished to undertake this task. After a lapse of 26 years, we all appreciate the difficulties ...

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