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Marcowitz v. Dept. of Public Health





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


Plaintiffs appeal from the trial court's affirmance of an administrative order suspending their ambulatory surgical treatment center license for 30 days. The suspension was based on Dr. Stewart Marcowitz' refusal to permit officials from the Department of Public Health (the Department) to inspect plaintiffs' medical facility. Plaintiffs contend: (1) their medical facility, the Oak Lawn Surgical Center, does not fall within the purview of the Ambulatory Surgical Treatment Center Act (the ASTC) (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 157-8.1 et seq.); (2) the inspections requested by the State officials were unreasonable invasions of privacy; and (3) the requested inspections amounted to unreasonable interference with the physician-patient relationship.

On June 17, 1980, the Department issued "Allegations of Noncompliance" against plaintiffs alleging that Department employees were denied the right to inspect plaintiffs' medical facility on April 24 and May 22, 1980. An administrative hearing was held on October 9, 1980. The following evidence was testified to by Department employees.

On April 24, 1980, two female Department employees, one a hospital nurse consultant and the other a social worker, traveled to plaintiffs' facility to conduct a survey (inspection). The two employees arrived at the Oak Lawn Surgical Center at 1 p.m. Dr. Marcowitz met them and refused their request to conduct a survey because he was seeing patients. He told them to come back at noon the following Monday. The Department employees informed him that they needed more than one date because the surveys were required to be unannounced. Dr. Marcowitz refused to give any additional dates.

On May 2, 1980, the Department received a letter of complaint from one of Dr. Marcowitz' former patients alleging that the abortion she received at the Oak Lawn Surgical Center was carelessly performed, nearly causing her death. The letter stated that the facilities at the Center were dirty, as was the surgeon who performed the procedure. The same two Department employees who had been turned away on April 24 returned to the Center on May 22, 1980. They arrived at 12:20 p.m. and saw no patients in the waiting room. Dr. Marcowitz again refused to allow them to conduct the survey, telling them that he was having office hours at 1 p.m. He told them to return the following Monday. One of the two Department employees, both of whom conduct surveys as a regular part of their duties, testified that a survey includes examining the records and regulations of the surgical facility. She also stated that attempts to observe a surgical procedure and a patient counseling session are made only with the patient's permission.

Michael S. Grobsmith, the Department's Chief of Hospitals and Ambulatory Health Programs, wrote a letter to Dr. Marcowitz after the latter's refusal to permit the April 24 inspection. In the letter, Grobsmith informed Marcowitz that no notice of an impending inspection is required and that the inspectors would visit the Center again in the near future. Grobsmith testified that he defined a reasonable time for inspection as anytime during daylight business hours of the working days of the week. This would include the time that surgical procedures would be performed since inspection of the operating area during a procedure should be a part of a survey.

Dr. Marcowitz testified that he is the sole stockholder of Stewart Marcowitz Medical Service Corporation and has a license to operate an ambulatory surgical treatment center known as the Oak Lawn Surgical Center. On some days the Center is used for Dr. Marcowitz' general practice. The only surgical use of the facility, however, is the performance of abortion procedures. Dr. Marcowitz has observed all 4,000 of the abortions performed at the Center but does not himself conduct the procedure, which is done by an independent surgeon. Dr. Marcowitz agreed with the testimony of the Department employees concerning the events of April 24 and May 22, 1980. He further stated that he feels he should be present during a survey, which he said usually lasts 3 to 4 hours, and that he cannot accommodate an inspection when patients are at the Center. He believes there would be a danger in allowing a nurse from the Department to observe an abortion procedure.

On November 20, 1980, the hearing officer filed his findings and recommended decision. He found that plaintiffs failed to comply with the ASTC Act by refusing to allow inspections of the Oak Lawn Surgical Center. The officer also found that there was no showing that such inspections would have been unreasonable or oppressive or that other employees of the Center could not have accommodated the Department's inspections while Dr. Marcowitz was occupied. The hearing officer recommended that plaintiffs' license be suspended for 30 days. On November 24, 1980, the Director of the Department adopted the hearing officer's findings and recommended decision.

On December 10, 1980, plaintiffs filed a complaint for administrative review of the Department's decision and, on December 12, moved the circuit court to stay the suspension order pending administrative review. The court ordered the stay "on the condition that plaintiff allow reasonable inspections." On January 28, 1981, the Department inspectors arrived at the Oak Lawn Surgical Center at approximately 9:30 a.m. Dr. Marcowitz told them he was busy and had surgery at 9:30 a.m. and that they could not inspect the facility until noon. The Department employees left and reported Dr. Marcowitz' refusal to allow the inspection to their supervisor.

The Department moved the trial court to vacate the stay order based on plaintiffs' refusal to allow the reasonable inspection as provided for in the stay order. A hearing on this matter was held on February 27, 1981, at which time Dr. Marcowitz testified that on January 28 it would have been impossible to allow the inspectors to examine his records because he (Marcowitz) would not be able to observe such an examination. He further testified he would have permitted an inspection of the facility room at noon on January 28, but he might not have permitted an examination of his records. One of the reasons he did not want to produce his records, according to Dr. Marcowitz, was that the Department would not "assume the responsibility for the information which they observed and for the privacy of that information."

The trial judge stated that he did not believe that an ambulatory surgical treatment center can put any restrictions on the statutory right of the State to inspect such facilities. He also noted that State employees are subject to stringent confidentiality provisions in the Act. On March 23, 1981, after submission of written arguments, the circuit court entered its final order. The court vacated the stay order which it had entered on December 12, 1980, and affirmed the Department's suspension of plaintiffs' ASTC license for 30 days. This appeal followed.

Plaintiffs' first contention on appeal is that the Center cannot be classified as an ambulatory surgical treatment center and, therefore, does not fall within the purview of the ASTC Act. (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 157-8.1 et seq.) Their argument is founded on a recent Illinois Supreme Court decision holding that the ASTC Act could not constitutionally create one class of facilities that perform abortions and another class that does not. (Village of Oak Lawn v. Marcowitz (1981), 86 Ill.2d 406, 427 N.E.2d 36.) The enactment the court reviewed was an Oak Lawn ordinance which adopted the definition of an ambulatory surgical treatment center from a section of the Illinois Act. That act states:

"`Ambulatory surgical treatment center' means any institution, place or building devoted primarily to the maintenance and operation of facilities for the performance of surgical procedures or any facility in which a medical or surgical procedure is utilized to terminate a pregnancy, irrespective of whether the facility is devoted primarily to this purpose." (Emphasis added.) Ill. Rev. Stat. 1979, ch. 111 1/2, par. 157-8.3(A).

Our supreme court held that the italicized portion of this statute was unconstitutional in that it discriminates against abortion procedures and thus contravenes equal protection and privacy considerations. (Village of Oak Lawn v. Marcowitz (1981), 86 Ill.2d 406, 420.) The court went on to hold that the remainder of the statute is constitutionally permissible and is enforceable. (86 Ill.2d 406, 421-22.) Plaintiffs argue that the primary activity at the Oak Lawn Surgical Center (emphasis added) is not the rendering of abortions — and therefore not surgical procedures since abortions are the only surgical procedures conducted at the Center — and that the Department failed to introduce any evidence to the contrary. Plaintiffs therefore ...

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