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06/08/89 Efren Naguit, v. Stephen F. Selcke

June 8, 1989

EFREN NAGUIT, PLAINTIFF-APPELLEE

v.

STEPHEN F. SELCKE, DIRECTOR OF THE DEPARTMENT OF REGISTRATION AND EDUCATION, ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

539 N.E.2d 1353, 184 Ill. App. 3d 80, 132 Ill. Dec. 547 1989.IL.868

Appeal from the Circuit Court of St. Clair County; the Hon. Robert L. Craig, Judge, presiding.

APPELLATE Judges:

JUSTICE HARRISON delivered the opinion of the court. WELCH, P.J., and RARICK, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Defendants, the Illinois Department of Registration and Education (now the Department of Professional Regulation) and its director, Stephen F. Selcke, appeal under Supreme Court Rule 307(a)(1) (107 Ill. 2d R. 307(a)(1)) from an order of the circuit court of St. Clair County which preliminarily enjoined them from using certain medical records in bringing disciplinary action against plaintiff, Efren Naguit, a physician. As grounds for their appeal, defendants argue that issuance of a preliminary injunction was improper because plaintiff failed to establish the elements necessary to warrant such relief. We agree. We therefore reverse.

Based upon prescription records compiled by the Illinois Department of Alcohol and Substance Abuse, defendants initiated an investigation into whether plaintiff was improperly prescribing controlled substances to his patients. There is no dispute that such conduct, if established, would entitle defendants to "revoke, suspend, place on probationary status, or take any other disciplinary action as the Department may deem proper" with regard to plaintiff's license to practice medicine under section 22of the Medical Practice Act of 1987 (Ill. Rev. Stat. 1987, ch. 111, par. 4400-22). Pursuant to their investigation, defendants issued a subpoena on April 13, 1987, in which they directed plaintiff to produce for inspection and copying all patient records, test results and medication records he had concerning 15 specific individuals. Plaintiff, who had secured counsel, honored this subpoena, and copies of the requested materials were turned over to one of defendants' investigators by plaintiff's office.

The April 13 subpoena indicated that it was being issued pursuant to section 110.140 of title 68 of the Illinois Administrative Code (68 Ill. Adm. Code § 110.140 (Supp. 1986)). After plaintiff turned over the materials specified in this subpoena, plaintiff's attorney complained that defendants had no right to those materials and demanded that they be returned immediately. Shortly thereafter, the Medical Practice Act of 1987 (Ill. Rev. Stat. 1987, ch. 111, par. 4400-1 et seq.) went into effect, and the law governing the licensing and regulation of physicians changed. Defendants then issued a second subpoena to plaintiff. This subpoena, dated November 4, 1987, requested records regarding the same 15 patients specified in the original subpoena. The type of records sought was also the same. The only difference was that the second subpoena contained no references to the Administrative Code, but instead indicated that it was being issued in accordance with section 38 of the new law (Ill. Rev. Stat. 1987, ch. 111, par. 4400-38).

Plaintiff refused to comply with the new subpoena. Instead, he filed an action for declaratory and injunctive relief in the circuit court of St. Clair County to challenge the legality of defendants' actions in obtaining the medical records of his patients under the original subpoena. At the outset of the case plaintiff obtained a temporary restraining order against defendants. That order was soon dissolved, but a hearing was set on a request by plaintiff for preliminary injunctive relief. In the meantime, defendants filed a motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-615).

A hearing on the motion to dismiss and the motion for a preliminary injunction was held on January 28, 1988. On April 8, 1988, the circuit court issued a written order in which it denied defendants' motion to dismiss, but granted plaintiff's request for a preliminary injunction. Specifically, it "ordered that defendants are preliminarily restrained and enjoined from using any of the records here in question,

(1) as a basis for the revocation or suspension of plaintiff's license to practice medicine, or

(2) to prosecute any alleged violation of the Medical Practice Act by plaintiff and from filing any complaint or obtaining the issuance of any process against plaintiff with the aid of the records in question,

pending Disposition of plaintiff's declaratory judgment action on the merits." Defendants now appeal pursuant to Supreme Court Rule 307(a)(1) (107 Ill. 2d R. 307(a)(1)) from that portion of the circuit court's order granting preliminary injunctive relief.

In order for a preliminary injunction to issue, a plaintiff must plead and prove the following: (1) a clear and ascertainable right in need of protection; (2) an irreparable injury if the injunction is not granted; (3) an inadequate remedy at law; and (4) a likelihood of success on the merits. (Meerbrey v. Marshall Field & Co. (1988), 169 Ill. App. 3d 1014, ...


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