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05/15/87 the People of the State of v. Fairbank Chua

May 15, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

FAIRBANK CHUA, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

509 N.E.2d 533, 156 Ill. App. 3d 187, 108 Ill. Dec. 837 1987.IL.630

Appeal from the Circuit Court of Cook County; the Hon. Sophia H. Hall, Judge, presiding.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. SULLIVAN, P.J., and PINCHAM, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

This cause involves an appeal by defendant, Dr. Fairbank Chua, from a jury conviction of delivery of a controlled substance, Valium, in violation of section 401 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401). Dr. Chua was sentenced to 24 months' probation and fined $5,000. The facts of this case are as follow.

Dr. Chua received his medical license in 1980 and had a private medical practice at St. Joseph's Medical Center (Medical Center). On September 28, 1983, undercover special agents Clem Ferguson and Willie Davis went to the Medical Center to investigate illegal drug trafficking. Agent Ferguson posed as a public aid recipient and had a public aid medical card (green card) in the name of Eli Jamorki. Ferguson testified that he told Dr. Chua that he wanted some Valium, cough syrup with codeine, and Darvocet. Ferguson related that the doctor then looked down his throat with a tongue depressor and took his blood pressure. The agent also testified that Dr. Chua never asked him about his medical symptoms or medical history. However, Dr. Chua's medical charts reflect that Ferguson complained of a cold that he had had for 1 1/2 weeks with headache, nervousness, and sleeping problems. Dr. Chua wrote Ferguson-Jamorki a prescription for Ampicillin, a cough syrup without codeine, 5 milligrams of Valium (nonrenewable), and Darvocet for pain. The charts also show that a mouth and lung examination indicated bronchitis and that the throat was lightly congested. Ferguson stated that he went to the clinic to get codeine, which he did not get.

Agent Davis' green card contained the name of Kevin Smith. Davis waited approximately 35 minutes while Ferguson was in the examining room with Dr. Chua. Davis testified that he told the doctor that he wanted some Valium and Tussionex cough syrup because he had a cold, was nervous, and could not sleep. Although Davis stated that Dr. Chua asked him questions, he could not recall the specific inquiries. Dr. Chua's medical charts indicate that Davis had a persistent cough, nasal-chest congestion, nervousness, sleeping difficulties, and emotional instability. Davis' police report indicates that he had a brief examination of the throat and chest area. Davis received prescriptions for 5 milligrams of Valium (nonrenewable), Ampicillin, and cough syrup without codeine. Dr. Chua advised Davis that he would have to pay $5 to the pharmacy for Tussionex since it was not covered by public aid.

Six and one-half months later, on April 18, 1984, Agent Leonard Day, posing as public aid recipient James Jones, visited the Medical Center. Day told Dr. Chua that he had a back problem, which was coded on his green card. The agent testified that he told the doctor he wasn't sick but that he wanted some Valium. Day stated that Dr. Chua responded by saying he had to record some ailment, whereupon the agent said he had back problems. The medical charts indicate that Day had a back problem caused by an automobile accident five years earlier, nervousness, and sleeping difficulties. The chart further reflects that the patient's blood pressure, pulse, and respiration were taken. The agent weighed himself and the chart correctly reflects his weight as 205 pounds. Day also testified that when he presented his green card to the doctor saying that James Jones was not his real name, Dr. Chua just nodded his head. Dr. Chua prescribed 5 milligrams of Valium (nonrenewable) and, according to the chart, instructed Day to apply moist heat to his back. Day could not remember whether he was told to apply heat treatments. The agent denied that Dr. Chua took any medical history or that he checked his blood pressure, pulse, and respiration, or other items completed on the chart. Before leaving Dr. Chua's office, Day asked which pharmacy he should use; Dr. Chua told him he could fill his prescription at any Chicago-area pharmacy.

On May 9, 1984, Tommie Wofford, an investigator for the State Police, posed as a public aid recipient named Kevin Smith, which was the same name used by Agent Davis in September 1983. Wofford testified that Dr. Chua noted that his last visit was on September 28. The agent told the doctor that nothing was wrong with him; he only wanted a Valium prescription. Wofford stated that Dr. Chua said, "For your nerves?" and, when the agent made no response, Dr. Chua wrote on Kevin Smith's medical chart and made out a prescription for 5 milligrams of Valium (nonrenewable). Wofford then offered the doctor cash for a prescription for Doriden; Dr. Chua refused the cash and would not write the prescription. Wofford next asked for prescriptions for Valium and birth control pills for his wife. The doctor refused and told Wofford that his wife should come in to the clinic. Wofford then inquired whether he was going to get a physical examination, to which the doctor responded that no examination was needed for nerves. Kevin Smith's chart indicates that he was nervous, having personal problems, and was "shaky" most of the time. At the time of this visit, Agent Wofford was unaware that another agent had visited Dr. Chua in September using Kevin Smith's green card.

Five days later, on May 15, Agent Wofford again visited Dr. Chua, dressed differently and using the name of Willie Barnett. He told the receptionist that he had left his public aid identification card at home; the receptionist replied that the clinic had no record for Willie Barnett. Wofford then stated that he had been there the week before and had used the name of Alexander. Wofford testified that Dr. Chua inquired about his family, childhood, blood pressure, and whether he had had a recent blood test. When asked what his ailment was, Wofford told the doctor that he wanted some Valium. Dr. Chua asked if he had bad nerves and the agent responded, "Doc, I've got a lot of problems." Wofford told Dr. Chua that Valium made him "feel good." While Dr. Chua was writing a nonrenewable prescription for 2 milligrams of Valium, Wofford offered cash for a prescription of Doriden and cough syrup. Dr. Chua refused the request.

A psychiatrist, Dr. Leon Kuhs, testified for the State as an expert witness. Dr. Kuhs is the medical director of the Alcohol Substance Abuse Treatment Center at Martha Washington Hospital. Dr. Kuhs heard only Agent Ferguson's testimony and, based on that and the police reports concerning all of the agents' visits to Dr. Chua, he responded to the State's hypothetical questions by stating that there was insufficient medical information on which to issue prescriptions for Valium to any of the agents-patients. However, on cross-examination, Dr. Kuhs stated that he had not seen Dr. Chua's medical charts, which the State had received through discovery. Dr. Kuhs further stated that the medical charts were the normal and usual charts used by doctors and, based on the information in those charts, there was a medical basis for prescribing Valium for each of the agents. He also stated that the amounts of Valium, with no refills, prescribed for the recorded ailments were not necessarily indicative of drug abuse or addiction. Dr. Kuhs noted that the number of patients seen by a doctor is pertinent to the extensiveness of an examination. Dr. Chua saw between 10 and 40 patients a day.

An internist, Dr. John Baron, was called as an expert witness by Dr. Chua. Dr. Baron heard all of the agents' testimony and saw their medical charts. He testified that there was no doubt the prescriptions were issued in the normal course of medical practice and further, that the dosages gave no indication of drug abuse. Dr. Baron, who had worked in medical clinics in the past, stated that under the circumstances of Dr. Chua's practice, he (Baron) believed that Dr. Chua did the best that he could in his prescribing.

On appeal, Dr. Chua asserts five alleged errors: (1) the State failed to prove its case beyond a reasonable doubt; (2) a provision of the Illinois Controlled Substances Act, as applied to Dr. Chua (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1312(h)), is unconstitutionally vague; (3) the State's hypothetical questions of its expert witness were unduly prejudicial; (4) the indictment was defective in that it charged the offense of illegal delivery of, rather than dispensing of, a ...


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