APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
L. CURRY, Judge, presiding.
MR. JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 19, 1979.
___ N.E.2d ___ Plaintiff Stefan Stojanoff appeals from an order of the circuit court affirming the decision of defendant Illinois Department of Registration and Education (hereinafter "Department") revoking plaintiff's license to practice medicine. Plaintiff denies the power of the Director of the Department (hereinafter "Director") to revoke his license absent a review of the evidence and recommendation by a peer committee pursuant to section 17.10 of the Medical Practice Act (Ill. Rev. Stat. 1975, ch. 91, par. 16b.10) (hereinafter "Act"), and further alleges a lack of substantial evidence to support the Department's decision.
For the reasons stated below, we reverse and remand with directions.
On November 21, 1975, 32 days after the Department served its amended complaint on plaintiff, the General Assembly amended the Act and provided for creation of the Illinois State Medical Disciplinary Board (Ill. Rev. Stat., 1976 Supp., ch. 91, par. 16a-2 et seq.) (hereinafter "Board"). Nominally a new body, the Board had essentially the same composition as the Medical Examining Committee (hereinafter "Committee") provided for under prior law (Law of July 25, 1945, 1945 Ill. Laws 990, 994, § 17a (amended 1975); Ill. Rev. Stat. 1975, ch. 127, par. 60a), and as before was empowered to conduct license revocation or disciplinary hearings and make written findings and recommendations to the Director. *fn1
Before receiving a license to practice medicine in Illinois a physician must pass an examination to the satisfaction of the Department under section 3 of the Act (Ill. Rev. Stat. 1975, ch. 91, par. 3). Since 1968 the Department has administered the Federation Licensing Examination (hereinafter "Examination") to doctors in order to determine eligibility for licensing. Scoring is done by a national board; scores are reported to the Department and eventually to the Board, which then determines eligibility on the basis of the aforesaid scores. Under Rule V.3 of the Department, standards for licensing require that the applicant receive an overall average score of 75 and a minimum score of 60 in each subject area. At the time plaintiff sat for the Examination in June of 1974, however, the Committee had evidently developed the practice of reviewing the files of certain license applicants at their request and discretionarily adjusting their inadequate scores to passing level.
Plaintiff received an overall score of 73.2. Prior to this, plaintiff had taken the Examination on six different occasions without achieving a passing score. In its amended complaint the Department invoked section 3 of the Act and the revocation section, which provides for revocation of the license of any person for violation of any provision of the Act or of the administrative rules and regulations. (Ill. Rev. Stat. 1975, ch. 91, par. 16a12.) The amended complaint alleged inter alia that: plaintiff had been issued a license by unauthorized action instigated by John B. Hayes, then superintendent of the Department; plaintiff was not then and had never been qualified to practice medicine in Illinois as a result of his failure to achieve a passing score on the Examination at any point; and these facts constituted grounds for revocation of plaintiff's license.
On the Committee's recommendation, a hearing officer was designated by the Director to take evidence and conduct the hearing in plaintiff's case, which began on April 30, 1976. Evidence was adduced principally from the testimony of three witnesses: Dr. Paul Tullio, a member of the Committee; Beverly Mason, acting supervisor of the Department's medical section and Hayes' assistant; and Superintendent Hayes.
According to Tullio, on August 22, 1974, he was told by Hayes that plaintiff, who had failed the Examination two months earlier, was suffering from cancer and would be unable to study or sit for another Examination; Hayes suggested that Tullio present plaintiff's records to the Committee when it met later that day and "* * * see if they could make some kind of exception as to him." At the Committee's luncheon meeting, Tullio gave to Dr. Schnepp, chairman of the Committee, papers reciting plaintiff's Examination scores and medical history, and related Hayes' request that the scores be given "consideration" since plaintiff couldn't take another exam. The Committee decided to defer taking any action pending verification and inspection of plaintiff's entire file and medical history.
Ms. Mason, who also attended the Committee meeting, testified that Schnepp told the other Committee members Tullio had been asked to have them review plaintiff's records because he was dying of cancer and couldn't take the Examination again. Schnepp then suggested that the Committee should have a letter verifying these facts, whereupon the other members agreed. Ms. Mason saw Hayes shortly after the meeting ended and told him the Committee wanted a letter concerning plaintiff's health. As supervisor it was her duty to take minutes of the meeting; she did so, but later destroyed them out of bitterness over her own removal from the medical section of the Department in the following month.
According to Ms. Mason, on the following day she told Hayes she had not "taken care of" plaintiff's Examination scores because of the Committee's requirement of a verification letter. Hayes told her that while Tullio confirmed the Committee wanted a letter, Tullio directed that a license was to be issued to plaintiff in the meantime. Hayes then instructed Ms. Mason to change plaintiff's June Examination score to a passing level. She changed his score in clinical competence from 74.3 to 77.0, which was calculated as resulting in an overall average score of 75.0.
Ms. Mason testified that Hayes questioned her on later occasions as to whether the acceptance letter customarily sent to those applicants passing the Examination had been sent to plaintiff. She reminded him she had not yet received the verification letter requested by the Committee. He assured her the letter would be forthcoming and urged her to send plaintiff his acceptance letter without delay, which she did. Ms. Mason never received the verification letter, and Hayes later told her he heard plaintiff had died.
Hayes confirmed the conversation of August 22, 1974, with Tullio concerning plaintiff, but testified that he requested the exception at the behest of one Nancy Schlaes of the Governor's office, who told him plaintiff was being considered for an administrative position for which licensure was a prerequisite. Hayes suggested to Tullio that some combination of plaintiff's past and present Examination scores might result in a passing grade.
Hayes testified that he arrived at the close of the Committee meeting and Schnepp told him that the Committee had recommended plaintiff be issued a license. When told by Tullio that it "might not be unwise" to confirm plaintiff's condition, Hayes suggested a personal interview but was advised such would be unnecessary since the Committee had "acted"; however, to satisfy Dr. Schnepp a letter was requested. Hayes denied ever instructing Ms. Mason to alter plaintiff's ...