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Maun v. Department of Professional Regulation

September 03, 1998

LORENZO MAUN, M.D., PLAINTIFF-APPELLANT,
v.
THE DEPARTMENT OF PROFESSIONAL REGULATION AND NIKKI M. ZOLLAR, DIRECTOR OF THE DEPARTMENT OF PROFESSIONAL REGULATION, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice Steigmann

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Appeal from Circuit Court of Sangamon County No. 96MR0238

Honorable Robert J. Eggers, Judge Presiding.

Plaintiff, Dr. Lorenzo Maun, appeals from a December 1997 circuit court order affirming the suspension of his license to practice medicine for 18 months by defendants, the Illinois Department of Professional Regulation (Department) and its director, Nikki M. Zollar, based on Maun's violation of section 22(A)(25) of the Medical Practice Act of 1987 (Act) (225 ILCS 60/22(A)(25) (West 1992)). Maun argues that (1) section 22(A)(25) of the Act is unconstitutionally vague; (2) section 22(A)(25) is an unconstitutional delegation of legislative authority; (3) because the Department has failed to promulgate rules defining the phrase "[g]ross and wilful and continued overcharging" as set forth in section 22(A)(25) (225 ILCS 60/22(A)(25) (West 1992)), it cannot enforce that section against him; and (4) the Department's decision was against the manifest weight of the evidence. We affirm.

I. BACKGROUND

Because the parties are familiar with the facts, we discuss them only to the extent necessary to put Maun's arguments in context. In October 1993, defendants commenced disciplinary proceedings against Maun, a plastic surgeon licensed to practice medicine in Illinois. The multicount disciplinary complaint sought the suspension or revocation of Maun's license or other disciplinary action on several grounds, including the alleged violation of section 22(A)(25) of the Act. Section 22(A)(25) provides as follows:

"The Department may revoke, suspend, place on probationary status, or take any other disciplinary action as the Department may deem proper with regard to the license or visiting professor permit of any person issued under this Act to practice medicine, or to treat human ailments without the use of drugs and without operative surgery upon any of the following grounds:

25. Gross and wilful and continued overcharging for professional services, including filing false statements for collection of fees for which services are not rendered, including, but not limited to, filing such false statements for collection of monies for services not rendered from the medical assistance program of the Department of Public Aid under the Public Aid Code." 225 ILCS 60/22(A)(25) (West 1992). According to the disciplinary complaint, Maun violated section 22(A)(25) by charging too much for services rendered to patients.

The evidence at the disciplinary hearing conducted between October and December 1995 showed the following. Dr. Bob Ryan, a plastic and reconstructive surgeon, testified that he had been in private practice since 1972 and was familiar with the fair and reasonable charges for various types of plastic surgery services. Ryan had reviewed the patient records of Ashley J., Amanda M., and Steven H., which included descriptions of services Maun had performed on those patients.

Ryan testified that Ashley J.'s records showed that she was a three-year-old child who had been bitten on her face, tongue, and eye by a dog in August 1990. Ashley J. was under anesthesia for 20 minutes, during which time Maun cleansed, debrided, and repaired her bite wounds. Ryan testified that during the course of his career, he had treated patients suffering from dog bite wounds. Ryan opined that Maun spent only 10 minutes actually operating on Ashley J. When asked by the Department whether Maun's $11,100 fee for Ashley's surgery constituted a "gross and willful overcharging," Ryan stated the following: "I can't really find words for that. At most, ten minutes of operating time here, $11,000 I would say is maybe $10,000 too much."

Ashley J.'s records also showed that she returned to Maun's office for scar excision and revision and dermabrasion in October 1990. Ryan opined that an appropriate fee for such an office procedure would be "at the upper side of $1,500." When asked by the Department whether Maun's $3,900 fee for that procedure constituted a "gross and willful overcharging," Ryan stated, "[t]hat again would be way out of line."

Amanda M.'s records showed that she had clefts (elongated openings) on both of her lower earlobes, and in June 1991, Maun reconstructed her right earlobe in his office using a technique known as Z-plasty (a procedure using a Z-shaped incision to relieve tension in scar tissue). The Z-plasty procedure took approximately 15 to 20 minutes. Ryan stated that the procedure is "very commonly performed," and he has treated "multiple" patients with torn earlobes. He opined that a fair fee would be $600 per earlobe, plus $500 for supplies and operating room costs. Ryan also opined that Maun's $6,653 fee for the procedure constituted gross, wilful, and "unconscionable" overcharging.

Steven H.'s medical records showed that in July 1991, Maun- performed an operation on Steven H., a 28-year-old man with four facial lacerations resulting from a minor car accident. His medical records indicated that the surgery involved debridement abrasion of his fore- head, plastic repair for wounds, including muscles, and microsurgery repair of nerves. Ryan testified that he was familiar with the type of plastic surgery Steven H. required, and during the course of his career, Ryan had treated patients who had suffered lacerations resulting from car accidents. Ryan opined that Maun's $16,767 fee constituted "very, very gross overcharging." He stated that a reasonable fee for the type and length of surgery would have totaled 25% of what Maun had charged Steven H. (around $4,190). Ryan also opined that because the anesthesia report revealed that Steven H. was only in the operating room for 45 minutes, "there is no way a plastic surgeon could repair--do microsurgery repair of a supraorbital nerve in the time allocated in this operation." (Maun testified that the operation lasted 1 hour and 45 minutes, and he repaired Steven H.'s supraorbital nerve using micro- surgery.) Ryan further opined that the medical records indicated that Steven H.'s supraorbital nerve did not appear to have been damaged by any of the facial lacerations.

The Department also introduced deposition testimony of Drs. Gerald Harris and Michael Vender and an evaluation letter from Dr. Charles Carroll. Maun stipulated to the admission of that evidence.

Carroll, an orthopedic surgeon with training in microsurgery, reviewed the medical records of Eugene B., one of Maun's patients who complained of right-hand contracture and pain. Between June 1990 and February 1991, Maun performed eight surgeries on Eugene B., with fees totaling $95,000. In his evaluation letter, Carroll opined that Maun's surgical fees were excessive for many of the listed procedures and Maun had charged Eugene B. for duplicate and unnecessary procedures. In summarizing his review of the case, Carroll stated that "[i]n my experi- ence in multiple university centers I have not seen anyone require this much surgery."

Harris, a plastic surgeon who specializes in hand surgery, examined and reviewed the medical records of Randy H., one of Maun's patients who had four fingers amputated during a work-related accident. In December 1989, Maun performed a 14-hour operation on Randy H. to reattach his fingers and charged him $108,989. Harris opined that Maun's $108,989 fee was high. He stated that a reasonable and customary fee for micro- surgery (the most difficult type of surgery) would be $2,000 per hour, or $28,000 for a 14-hour surgery. Vender, a plastic surgeon with an expertise in hand surgery, also examined Randy H. and reviewed his medical records. He opined that Maun's $108,989 fee was excessive, and a reasonable rate for such surgery would be between $800 and $1,500 per hour. He further opined that a reasonable fee for Randy H.'s 14-hour surgery would have been approximately $21,000.

Maun testified that, from 1989 through 1992, he practiced plastic surgery in Lake County, Illinois. When questioned by the Department about who had responsibility for billing practices in his office, Maun stated that he was unaware of his billing practices and explained that he was "only a [d]octor. We have business people to do those things, and I hire people because I do not know." He further stated that software technicians had installed a fee schedule and billing software program which his office had purchased from the "Peach Tree people" after Maun had seen the software at a plastic surgery meeting. His office personnel also use other fees schedules which "they bought some place." When asked to explain how he arrived at Ashley J.'s $11,100 bill, Maun stated as follows: "I don't know how they arrive at the amount. When operative notes go to the office, they check how many wounds, and then they look on the code number and determine how many wounds were done. And then they multiply how many wounds."

Maun further stated that he believed his fees for the procedures he performed on Ashley J. were reasonable and appropriate. He also stated that he was aware that Ashley J.'s attorney had complained about the $11,100 charge. Maun also testified that when Amanda M.'s insurance company objected to his $6,653 fee for the Z-plasty procedure, his "billing people" reduced the charge to $940.

Dr. Jimmy Alastair Chow, a plastic surgeon, testified on Maun's behalf that all surgical procedures Maun performed on Randy H. were necessary. Chow refused to answer questions about Maun's billing practices or fees.

Following the hearing, the hearing officer issued his ruling and found that Maun (1) had violated section 22(A)(25) of the Act; and (2) had engaged in dishonorable, unethical, or unprofessional conduct when he used retirement pension funds to alleviate a business cash shortage. The hearing officer wrote, in relevant part, as follows:

"12) *** [Dr. Ryan] is very well qualified to render expert opinions in this proceeding. ***

13) Dr. Ryan reviewed the patient records of Amanda M. herein and was of the opinion that [Maun's] billing of $6,653.00 for services rendered in that matter was gross ...


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