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Biogenetics v. Department of Public Health

OPINION FILED FEBRUARY 2, 1982.

BIOGENETICS, LTD., APPELLEE,

v.

THE DEPARTMENT OF PUBLIC HEALTH, APPELLANT.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. James C. Murray, Judge, presiding.

JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

The Director of the Department of Public Health (Director) suspended the license of Biogenetics, Ltd., an ambulatory surgical treatment center (ASTC) licensed to perform first-trimester abortions. The suspension for 180 days was based upon several violations of the Ambulatory Surgical Treatment Center Act (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 157-8.1 et seq.) and the rules promulgated thereunder by the Department of Public Health (Department). Biogenetics sought review under the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.). Although the Cook County circuit court affirmed the Director's order, the appellate court reversed, holding that if violations did occur, they were not substantial, and therefore did not warrant suspension. (91 Ill. App.3d 615.) We granted leave to appeal and now affirm the appellate court's judgment.

Biogenetics' difficulties began when, amid highly publicized charges in the media of wrongdoing among Chicago abortion clinics, the Director summarily ordered that Biogenetics be closed and sought a permanent revocation of its ASTC license. Forty-five charges were brought against the clinic. Two of these were dropped, and of the remaining 43, only 15 were sustained by the evidence at the administrative hearing. In part because of this failure of proof, the Director ultimately decided to suspend Biogenetics' license rather than to revoke it.

The 15 charges stemmed from only three incidents. The Department relies on two of these to justify its suspension, the third one being a relatively minor matter involving the improper completion of statistical forms, which we do not regard as important enough to discuss.

The first incident concerns the employment of Dr. Luis Garcia Nique, who the Department claims performed five abortions in one morning at Biogenetics at a time he was not licensed. The facts are stipulated. Dr. Nique was a fully licensed physician in North Dakota at the time in question. Although he had applied for an Illinois license under the reciprocity provision of the Medical Practice Act (Ill. Rev. Stat. 1979, ch. 111, par. 4401 et seq.), he had not yet received word from the Illinois authorities. Dr. Baldoceda, the medical director of Biogenetics, was familiar with Dr. Nique from their days together in medical school in Peru. They renewed their acquaintance at Cook County Hospital in 1976, and Dr. Baldoceda was brought up to date on Nique's professional activities. He learned that Nique had interned at St. Anne's Hospital and had served an obstetrics-gynecology residency in Youngstown, Ohio, before returning to Illinois for additional residencies. Two years later, Nique informed Baldoceda that he had become a licensed physician in North Dakota and that he was in the process of applying for an Illinois license under the reciprocity rules. He also told Baldoceda that he would like to do some work at Biogenetics when he received it, and Baldoceda told him he would consider the matter. A few months later, Nique told Baldoceda that he had received his Illinois license. This was false. Baldoceda invited him to come to work at Biogenetics.

Dr. Nique appeared at Biogenetics on October 18, 1978, ready to begin work. The nurse in charge first asked him to complete certain forms, list his credentials on a sheet of paper, and supply her with a photocopy of his Illinois license. He gave her, among other things, his A.M.A. number, his affiliation with the University of Illinois Medical Center, and an Illinois license number. He then began work and performed five abortions under the supervision of Dr. Baldoceda. Later that morning, Baldoceda discovered that Nique has not yet supplied the nurse with a copy of his license, and sent Nique home to get it. Dr. Nique has not been heard from at Biogenetics since.

The second incident arose from the employment of Dr. Shaista Khan, an Indian physician educated in Pakistan with extensive experience in obstetrics-gynecology. She received her B.Sc. from Shah Adbul Liateed Government College in Pakistan and then attended F.D. Medical College in Pakistan for five years, receiving her M.D. from that institution. She served residencies in obstetrics-gynecology for four years in Pakistan and conducted approximately 40,000 pelvic examinations during that time. Dr. Khan was not licensed in Illinois or any other State, because she had only recently arrived in this country. She was employed by Biogenetics for five months in the autumn of 1978 while she was preparing to sit for the Illinois licensing examination scheduled for early 1979.

Dr. Khan's duties at Biogenetics were not those of a physician, however, and she did not identify herself as a doctor to patients while working at Biogenetics. She was allowed to perform only those minor medical procedures that the licensed physicians, after a close scrutiny of her ability, agreed that she was capable of. Dr. Khan administered injections when so directed by a licensed physician, conducted screening pelvic examinations on patients who received negative or inconclusive pregnancy test results, and conducted routine two-week post-operative examinations.

The screening examination was performed to provide a basis for a licensed physician either to confirm the results of the pregnancy test or to make his own independent examination. If Dr. Khan found evidence of pregnancy, she would turn the patient over to a licensed physician to make his own independent examination and evaluation; if she found no such evidence, a licensed physician would confirm the lab report. The patient would be told to return in two weeks for retesting if she then still believed she was pregnant. No surgery was ever performed on the basis of Dr. Khan's examination. She made no diagnoses; she simply looked for evidence, any shred of evidence, of pregnancy. Her observations were used to assist a licensed physician in making his diagnosis; they gave him extra information to work with. Experts testified that many physicians simply send patients whose tests come out negative or inconclusive home, informing them that the test is somewhat unreliable and that they can return in two weeks if they wish.

On routine two-week post-operative pelvic examinations, she would record specific observations on a chart, and if no evidence of complications existed and the patient had no complaints, a licensed physician would review the chart and make his diagnosis from her observations. Whenever a patient had a complaint or the information recorded by Dr. Khan suggested the possibility of some complication, the doctor who performed the abortion would conduct his own post-operative examination.

None of these activities, when performed under the direct supervision of a licensed physician, constitute the practice of medicine; they are the routine of a physician's assistant. (See Rules for the Administration of the Physician's Assistants Practice Act VII, IX.) The Department appears to acknowledge this. It claims, however, that since Dr. Khan was not certified as a physician's assistant under the Physician's Assistants Practice Act (Ill. Rev. Stat. 1979, ch. 111, par. 4751 et seq.), Biogenetics was in violation of ASTC Rules 4.2(B), 6.1, and 12.

In addition, the Department contends and the Director found that on one occasion Dr. Khan released a patient after her two-week post-operative exam without first consulting a physician. The hearing officer's factual findings, upon which the Director's findings are based, do not specify when or to whom this was done. Moreover, a thorough examination of the record reveals no evidence to establish this contention. Rather, it seems to have arisen from a misunderstanding involving a witness who testified that she was not directly examined by a doctor. We, therefore, will not consider it in evaluating the charges against Biogenetics.

The Ambulatory Surgical Treatment Center Act (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 157-8.7) provides that the Director may, after notice and an opportunity for a hearing, revoke the license of an ASTC if he finds that there has been a substantial failure to comply with the provisions of the Act or the rules promulgated thereunder. This limits the Director's power. In order for the Department to prevail, therefore, it must prove not only that Biogenetics violated the law, but also that its ...


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