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Hah v. Stackler

OPINION FILED NOVEMBER 3, 1978.

MING KOW HAH, M.D., PLAINTIFF-APPELLANT AND CROSS-APPELLEE,

v.

RONALD STACKLER, DIRECTOR OF THE DEPARTMENT OF REGISTRATION AND EDUCATION, ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Mr. JUSTICE LORENZ delivered the opinion of the court:

Plaintiff filed a complaint under the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 264 et seq.) for administrative review of defendants' final order that his Illinois medical license be revoked. The circuit court affirmed that order. On appeal, plaintiff contends that this judgment was erroneous and should be reversed.

The following undisputed facts are pertinent to the disposition of this appeal.

On June 4, 1976, the Illinois Department of Registration and Education (Department) filed a complaint with the Medical Disciplinary Board charging that pursuant to section 16(11) of the Medical Practice Act (Ill. Rev. Stat. 1975, ch. 91, par. 16a(11)) plaintiff's Illinois Physician and Surgeon license, No. 36-47323, should be suspended or revoked. The statute cited provides in part that:

"The Department may revoke, suspend, place on probationary status, or take any other disciplinary action as the Department may deem proper with regard to the license, certificate or state hospital permit of any person issued under this Act or under any other Act in this State to practice medicine * * * upon any of the following grounds:

11. Revocation or suspension of a medical license in a sister state."

Plaintiff filed an answer and, on September 1, 1976, a hearing was held on the matter by the State of Illinois Medical Disciplinary Board. On September 15, the Board found, inter alia, that plaintiff was a registered physician and surgeon in Illinois, having been issued certificate of registration No. 36-47323; that plaintiff had also been a licensed physician and surgeon in Michigan, and had held Michigan Medical license No. 31531 and 1975 Registration Certificate No. 113498; that on November 18, 1975, following a hearing regarding the revocation of plaintiff's Michigan medical license, certain findings of fact and conclusions of law, were filed with the Michigan Medical Practice Board; that on December 3, 1975, Frederick W. VanDuyne, M.D., President of the State of Michigan Department of Licensing and Regulation Medical Practice Board, issued a final order that plaintiff's medical license and registration certificate be revoked and surrendered; and that said revocation by Michigan, a sister State, constituted grounds for the revocation of plaintiff's Illinois license under section 16(11) of the Medical Practice Act (Ill. Rev. Stat. 1975, ch. 91, par. 16a(11)). Based on the foregoing, and the conclusion that it was in the best interest of the citizens of the State of Illinois, the Medical Disciplinary Board recommended to the Director of the Department of Registration and Education that plaintiff's Illinois medical license be revoked. On November 29, 1976, the Director issued an order which adopted the Board's findings and recommendation, denied plaintiff's motion for rehearing, and ordered that his license was thereby revoked. On December 9, 1976, plaintiff filed his complaint for administrative review in the circuit court. Following a hearing, on February 4, 1977, the circuit court ordered that the decision of the Director be affirmed, but that said decision be stayed pending the outcome of an appeal. This appeal followed.

OPINION

• 1, 2 Plaintiff contends that the order of the circuit court should be reversed. He initially points out that section 16 of the Medical Practice Act (Ill. Rev. Stat. 1975, ch. 91, par. 16a) contains several grounds upon which a medical license can be revoked other than a revocation in a sister State. He therefore argues that "[t]he only reading of the statute that makes sense" in this type of case is that an Illinois license can be revoked only when the sister State's revocation was for conduct which would also constitute grounds for revocation in Illinois. We disagree. Plaintiff has conceded that he can cite no case in support of his suggested standard, but argues that we should adopt it as a matter of statutory interpretation. We note, however, that the language used in the statute is the primary source for determining legislative intent, and when that language is clear and unambiguous, the proper function of the court is to enforce the statute as enacted. (People ex rel. Gibson v. Cannon (1976), 65 Ill.2d 366, 357 N.E.2d 1180; General Motors Corp. v. Industrial Com. (1975), 62 Ill.2d 106, 338 N.E.2d 561.) Section 16 of the Medical Practice Act clearly states that the Department may revoke a license for any of a number of separate and independent grounds including number 11, which is the "[r]evocation or suspension of a medical license in a sister state." (Ill. Rev. Stat. 1975, ch. 91, par. 16a(11).) This statement by the legislature of a possible ground for revocation is clear and unambiguous, and to enlarge upon its meaning or terms as plaintiff suggests would be improper judicial legislation. (See Berwyn Lumber Co. v. Korshak (1966), 34 Ill.2d 320, 215 N.E.2d 240; In re Estate of Buehnemann (1975), 25 Ill. App.3d 1003, 324 N.E.2d 97.) Moreover, our conclusion is supported by our supreme court's opinion in Bruni v. Department of Registration and Education (1974), 59 Ill.2d 6, 319 N.E.2d 37, cert. denied (1975), 421 U.S. 914, 43 L.Ed.2d 780, 95 S.Ct. 1573. In that case, plaintiff's license was revoked pursuant to section 16(2) of the Medical Practice Act (Ill. Rev. Stat. 1965, ch. 91, par. 16a(2)), which provided for revocation upon "[c]onviction of a felony." Plaintiff had been convicted of counterfeiting charges which were felonies under the United States Code, but not under Illinois law. The supreme court nevertheless affirmed the revocation of plaintiff's license, finding that the use of the word "felony" in the Illinois statute included conviction of a crime classified as a felony under Federal, but not Illinois law. In the instant case, the statute speaks simply of a revocation in a sister State, and does not require that the conduct involved there constitute substantive grounds for revocation under Illinois law. Based on the above, we conclude that following the revocation of plaintiff's license in Michigan, the Department was authorized, under section 16(11) of the Medical Practice Act, to revoke plaintiff's Illinois medical license.

• 3 In his reply brief plaintiff has, for the first time in these proceedings, raised the contention that section 16(11) of the Medical Practice Act is unconstitutional because it improperly delegates authority over Illinois licenses to other States, and because it denies equal protection of the laws to Illinois doctors with out-of-State licenses. We note, however, that Supreme Court Rule 341(e)(7) (Ill. Rev. Stat. 1975, ch. 110A, par. 341(e)(7)) clearly states that points not argued in the appellant's original brief "are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing." Plaintiff's attempted constitutional attacks upon the statute will accordingly not be considered on this appeal.

Plaintiff next contends that the hearing conducted in Michigan which resulted in the revocation of his license there, denied him his right to due process of law and therefore should not be relied upon to support a revocation in Illinois. He cites as unfair the fact that, unlike the practice in Illinois, the revocation hearing in Michigan was not held before the full medical board, and that a majority of the hearing panel's members were not doctors. Further, he especially emphasizes that the sole expert medical testimony regarding his conduct in Michigan was submitted there in the form of an affidavit. He argues that because that procedure did not allow him a chance to cross-examine the affiant, it denied him his right to due process and should not now be relied upon. As support for this argument, plaintiff cites Smith v. Department of Registration & Education (1952), 412 Ill. 332, 106 N.E.2d 722.

• 4 Plaintiff's reliance upon Smith is misplaced. Contrary to his assertion, that case did not hold that the inability to subject a witness or affiant to cross-examination is a denial of due process. The supreme court did rule in Smith that at a license revocation proceeding, due process required a definite charge, adequate notice, and a fair and impartial hearing. Our review of the record of the proceedings in Michigan reveals no basis to conclude that these were denied to plaintiff in this case. We specifically disagree with his suggestion that even though the Smith standards were met, due process was denied simply because the hearing panel in Michigan was composed differently than its counterpart in Illinois. Moreover, regarding the argument that a reversal is warranted here due to plaintiff's inability to cross-examine an affiant, we noted in Lo Piccolo v. Department of Registration & Education (1972), 5 Ill. App.3d 1077, 1083, 284 N.E.2d 420, 424, that under the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 275(2)), "[f]ailure of an administrative agency to observe technical rules of evidence is not ground for reversal, unless the failure `materially affected the rights of any party and resulted in substantial injustice to him.'" The record of the proceedings in Michigan shows that plaintiff was clearly informed of the charge against him, was represented by counsel, and submitted evidence on his own behalf. The Illinois Medical Disciplinary Board reviewed the record in Michigan as well as documents, affidavits and testimony submitted by plaintiff on his behalf before recommending that his Illinois license be revoked. A substantial injustice does not appear to have resulted to plaintiff from the reliance on the Michigan revocation. The order affirming the revocation of his license in Illinois should therefore be affirmed.

Finally, defendants contend that the circuit court erred by improperly staying the revocation of plaintiff's license pending appeal. Section 12(1)(a) of the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 275(1)(a)) states that the circuit court shall have the power "* * * to stay the decision of the administrative agency in whole or in part pending the final disposition of the case." As defendants point out, however, section 17.08 of the Medical Practice Act, as amended (Ill. Rev. Stat. 1975, ch. 91, par. 16b.08, amended by Pub. Act. 79-1130, effective November 21, 1975), provides that "[d]uring the pendency and hearing of any and all judicial proceedings incident to such [Department] disciplinary action the sanctions imposed upon the accused by the Department shall remain in full force and effect." Defendants ...


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