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Biogenetics, Ltd. v. Dept. of Public Health

OPINION FILED DECEMBER 8, 1980.

BIOGENETICS, LTD., PLAINTIFF-APPELLANT,

v.

THE DEPARTMENT OF PUBLIC HEALTH, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES C. MURRAY, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

After an administrative proceeding, the Director of the Department of Public Health found that Biogenetics, Ltd., had committed certain violations of the Ambulatory Surgical Treatment Center Act and the Rules and Regulations of the Department of Public Health. On the basis of this finding, the Director ordered a 180-day suspension of Biogenetics' license. The trial court affirmed the suspension order. Biogenetics filed an emergency motion for a stay pending appeal. The motion was granted by this court.

We reverse.

The principal issue in this appeal is whether the facts presented in previous proceedings were legally sufficient to justify a 180-day suspension of a license under section 7 of the Ambulatory Surgical Treatment Center Act (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 157-8.7), which provides that licenses may be suspended only for a "substantial failure to comply" with the Ambulatory Surgical Treatment Center Act or the Rules and Regulations of the Department of Public Health.

Biogenetics, Ltd. (Biogenetics), is an ambulatory surgical treatment center (astc), licensed to perform first trimester termination of pregnancy procedures. On January 3, 1979, the Director of the Department of Public Health (Director) closed Biogenetics and sought permanent revocation of the clinic's license by the issuance of an order of summary suspension of license.

The summary order initially contained 45 counts charging Biogenetics with numerous violations of the Ambulatory Surgical Treatment Center Act (ASTC Act) (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 157-8.1 et seq.) or the Department's Rules and Regulations. The Department withdrew 2 of the 45 counts. An administrative hearing was held on the merits of the remaining 43 counts before a hearing officer appointed by the Director. The officer concluded that the evidence did not support the charges with respect to 28 of the 43 counts. On the basis of the hearing officer's findings, the Director ordered a 180-day suspension of Biogenetics' license retroactive to January 3, 1979.

The Director's 180 day suspension of Biogenetics' license was based upon two specific factual situations which involved the performance of medical procedures by two individuals who were not licensed to practice medicine in Illinois. The first involved Dr. Luis Garcia Nique. The second involved Dr. Shaista Khan.

Dr. Nique performed five termination of pregnancy procedures at Biogenetics on October 18, 1978. Nique's credentials were stipulated by the parties. He received his Doctor of Medicine from a Peruvian medical school. He then came to the United States and successfully completed a residency in pathology and two levels of graduate residency in obstetrics-gynecology. Thereafter, Nique applied for and received a license to practice medicine in North Dakota. In late August 1978, he applied for a permanent license in Illinois under the reciprocity provision of the Illinois Medical Practice Act. Ill. Rev. Stat. 1979, ch. 111, par. 4407.

In early October 1978, Nique informed Dr. Baldoceda, Biogenetics' medical director, that he received his Illinois medical license and requested that he be permitted to perform procedures at Biogenetics. Baldoceda consented. On the morning of October 18, 1978, when Nique appeared at Biogenetics, he was asked to list his licensing credentials on a sheet of paper. Later that same day, when it was discovered that Nique was not yet licensed to practice in Illinois, he was asked to leave. The record indicates that less than 1 month after his performance of the procedures at Biogenetics, the Illinois Committee on Medical Examiners recommended to the Department of Registration and Education that Nique be issued a license to practice medicine in Illinois.

Dr. Khan received her Doctor of Medicine from a medical school in Pakistan. She completed a 1-year internship at a teaching hospital in Pakistan. Thereafter, she completed a 4-year residency in obstetrics and gynecology at another hospital in Pakistan. As of late 1978, she was not licensed to practice medicine in Illinois, but was studying for a physician's licensing examination to be administered in early 1979.

Khan was employed by Biogenetics for a 5-month period, which ended in the fall of 1978. Her duties included the administration of injections at the direction of licensed physicians and the performance of pelvic examinations under the supervision and review and at the direction of licensed physicians. On occasion, Khan performed screening pelvic examinations on patients who received negative or inconclusive pregnancy test results. Additionally, she sometimes performed 2-week post-operative pelvic examinations, the results of which were recorded on patients' charts to be reviewed by a licensed physician. In one instance, on September 16, 1978, Khan failed to seek physician review of a post-operative pelvic examination prior to the patient's discharge.

The Director found that Nique's performance of five termination of pregnancy procedures constituted a violation of the ASTC Act since he was not licensed to practice medicine in Illinois. Additionally, the Director found that Khan's performance of medical procedures constituted a violation of the ASTC Act since she was not licensed to perform any medical procedures in Illinois.

Biogenetics filed a complaint for administrative review on April 11, 1979. Upon administrative review, the trial court affirmed the Director's order. Biogenetics then filed its notice of appeal on December 18, 1979. On December 31, 1979, a motion for a stay pending appeal was granted by this court.

The principal issued on appeal is whether the facts presented in the administrative hearing were legally sufficient to justify a 180-day suspension of a license under section 7 of the ASTC Act (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 157-8.7). Section 7 provides that the Director of the Department may suspend an astc license if he finds that there has been a "substantial failure to comply" with the ASTC Act or the Department's Rules and Regulations. Biogenetics maintains that in order to establish that there was a substantial failure to comply, it is incumbent upon the Department to establish that the conduct of Biogenetics has resulted in injury to the public safety and health of a more serious kind or to a significantly greater extent that is normally incident to the operation of an astc. Further, relying on Dorfman v. Gerber (1963), 29 Ill.2d 191, 193 N.E.2d 770, Biogenetics claims that a showing of technical or de minimis violations of the ASTC Act or the Rules and Regulations is ...


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