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Middleton v. Clayton

OPINION FILED NOVEMBER 7, 1984.

JAMES G. MIDDLETON, M.D., PLAINTIFF-APPELLANT,

v.

GARY L. CLAYTON, DIRECTOR, DEPARTMENT OF REGISTRATION AND EDUCATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.

JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

James G. Middleton (petitioner) appeals from an order of the circuit court which affirmed the decision of the Department of Registration and Education (Department) denying petitioner's request for restoration of his license to practice medicine in Illinois.

The record discloses the following underlying facts: petitioner was first licensed to practice medicine in 1959 in the State of Missouri. In 1962 he was licensed in Georgia and in Tennessee. In 1963 he petitioned for licensure in Illinois based on reciprocity with Tennessee. He was licensed in Illinois, on that basis, in 1964.

In 1961 petitioner pleaded guilty to a charge of assault and battery in Ohio. In May 1962 petitioner's Missouri medical license was revoked "on the basis of unprofessional and dishonorable conduct." The Missouri Board of Registration found that petitioner had on two occasions administered certain drugs to a female patient which "rendered her powerless to resist" and then committed sexual acts upon her, without her consent.

In 1971 petitioner's Illinois medical license was revoked by the Department, premised on its findings that petitioner had committed acts which constituted "dishonorable, unethical or unprofessional conduct." The acts found to have been committed by petitioner were: (1) in the years 1968 through 1970, he had injected five different female patients with drugs, rendering them helpless to resist, and then taken sexual liberties with them, without their consent; (2) when applying for an Illinois medical license in 1963, petitioner had failed to advise Illinois authorities that his Missouri medical license had been previously revoked; and (3) when petitioner applied for medical licensure in Georgia in 1962 he was required to respond, under oath, to the question of whether he had ever been "charged or convicted" of a crime. Petitioner answered "no" when, in fact, he had previously pleaded guilty to the Ohio criminal charge, and had been charged in Missouri with the crime of rape by the use of drugs.

The record also demonstrates that petitioner, following his Illinois license revocation, was convicted of a single felony charge of deviate sexual assault in Illinois in 1972, and, in the same year, of a Federal felony charge of unlawful possession of firearms.

After serving his prison sentences, petitioner first applied to the Department for restoration of his Illinois medical license in April 1980. Petitioner, who was not then represented by counsel, was denied restoration. In October 1981 petitioner secured counsel, and reapplied for restoration. It is this second application which is involved in the present appeal.

At the administrative hearing before the Illinois State Medical Disciplinary Board (Board), petitioner presented the testimony of Dr. Bernard Shulman, chairman of the department of psychiatry at St. Joseph's Hospital in Chicago. He testified that he had examined petitioner for about an hour and one-half, and devoted several additional hours consulting with other doctors who had also examined petitioner, as well as reviewing background documents. In Dr. Shulman's opinion, there was no evidence that petitioner was suffering from any mental or emotional illness. He found no evidence to indicate that petitioner would have any greater trouble than any other practicing physician in avoiding the medical or psychiatric problems relating to the practice of medicine. Dr. Shulman felt it appropriate to restore petitioner's medical license.

On cross-examination, Dr. Shulman acknowledged he was not an "expert" in "cases of deviate sexual behavior."

Petitioner also presented the testimony of his wife and 10 friends, many of whom had been patients of petitioner. Based on their observations of petitioner over the past 12 years, they agreed that petitioner was rehabilitated and fit to practice medicine. Many of the witnesses stated that they would again consult petitioner should his medical license be restored.

Petitioner testified that since his release from prison in 1980 he has been active six days per week in continuing medical education, and had earned more than 1,900 hours of credit in such courses. He had attempted to work in medically related fields, but had been unable to do so due to his license revocation. He was "rehabilitated" due to his continuing "socialization" and medical education. He would, if required by the Department, agree to practice medicine in a controlled environment such as a group, rather than solo practice.

With regard to the Department's factual findings which led to his 1971 license revocation in Illinois, petitioner denied having abused any patients. He stated that he did not advise Illinois that his Missouri medical license had been previously revoked because he was not asked that specific question, but admitted he nonetheless should have informed Illinois of that fact. He denied the charges of sexual abuse on which the revocation of his Missouri license was based. He admitted pleading guilty to the Ohio criminal charge, but contended he was "basically" innocent. He denied his guilt of the Illinois deviate sexual assault charge. He admitted his guilt to the Federal weapons charge. When asked if he felt "remorse" for the victims of his offenses, petitioner stated that there were no victims "except my wife and myself." He said he felt remorse for the victims to the extent that their personal problems prompted them to make untrue charges against him.

Petitioner told the Board that if he were allowed to resume the practice of medicine, he would not molest patients. He also contended that there is no basis for the theory that an individual's past conduct is determinative of his future conduct.

At the request of the Board, Dr. James Cavanaugh, director of the "Psychiatry in the Law" section of the department of psychiatry at Rush-Presbyterian-St. Luke's Medical Center in Chicago, examined petitioner. Dr. Cavanaugh testified he spent some seven hours interviewing petitioner and conducted several psychological and neurological tests of petitioner. If one accepts as true the allegations of petitioner's past misconduct, the ...


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