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Ziporyn v. Zollar

December 30, 1999

MARVIN ZIPORYN, PLAINTIFF-APPELLEE,
v.
NIKKI M. ZOLLAR, DIRECTOR OF DEPARTMENT OF PROFESSIONAL REGULATION, STATE OF ILLINOIS, AND DEPARTMENT OF PROFESSIONAL REGULATION, STATE OF ILLINOIS DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. 97 CH 6325; 98 CH 5283 Honorable Robert V. Boharic Judge Presiding

The opinion of the court was delivered by: Presiding Justice Zwick

In 1991, the Director of the Department of Professional Regulation ordered Marvin Ziporyn's medical license indefinitely suspended and his controlled substance license revoked. The Director also ordered Ziporyn to complete a course of study approved by the Department's Medical Coordinator and to pass a mental and physical examination prior to petitioning for restoration of his medical license. Ziporyn did not seek administrative review of the Director's decision and did not comply with the conditions attached to the suspension.

Ziporyn filed with the Director a petition for restoration of his medical license in 1996. He did not seek restoration of his controlled substance license. After the director denied the petition, Ziporyn filed a complaint for administrative review. The circuit court remanded the matter to the Director for reconsideration of the indefinite suspension of Ziporyn's medical license. On remand the Director ordered that Ziporyn's license remain indefinitely suspended. The circuit court reversed the Director's decision and ordered the Director to terminate the suspension of Ziporyn's license and reinstate the license.

We are presented with the following issues for review: (1) whether the circuit court improperly exercised jurisdiction over the case where Ziporyn conceded that he had not complied with the conditions attached to his suspension in seeking restoration of his license and, (2) whether the Department's refusal to restore Ziporyn's medical license is supported by the record.

The record shows that Ziporyn is a psychiatrist, and has been licensed as a medical doctor since 1948. In September 1986, the Department (then known as the Illinois Department of Registration and Education) filed a complaint against Ziporyn who then held an Illinois certificate of registration as a physician and surgeon and also a controlled substances license. The complaint alleged that between June 9, 1984 and February 11, 1986, Ziporyn prescribed for one of his patients over 1,036,500 mg. of Demoral, a schedule II controlled substance, for the purpose of treating acute depression. Additionally, the complaint alleged that by so treating this patient, Ziporyn failed to exercise currently accepted standards of medical care, had prescribed a habit-forming controlled substance in a way other than for therapeutic purposes, and had dispensed controlled substances other than in "good faith" as that term is defined by the Illinois Controlled Substances Act (now codified at 720 ILCS 570/100 - 570/603 (1996)). The complaint sought suspension, revocation or other discipline of Ziporyn's medical license and controlled substance license.

On May 17, 1989, the Department's Medical Disciplinary Board issued its recommendation that Ziporyn's medical license be suspended indefinitely and that his controlled substances license be revoked. The Board also recommended that Ziporyn be required to complete a course of study approved by the Department's Medical Coordinator and pass a mental and physical examination prior to petitioning to restore his medical license. The Director issued a decision on August 21, 1991, adopting the findings, conclusions, and recommendation of the Medical Board to indefinitely suspend Ziporyn's medical license and to revoke his controlled substance license. Ziporyn did not seek review of the Director's order.

In September 1991, Ziporyn petitioned the Director for restoration of his medical license. His petition acknowledged that he had attempted no educational work and that he had received no psychotherapy or counseling. Pursuant to Ziporyn's request, a hearing was held on the petition for restoration. At the hearing, Ziporyn said that he was seeking restoration of his medical license; he was not seeking restoration of his controlled substance license. He argued that he had done nothing wrong in the first place and that he did not need to attend follow-up courses because he was "well prepared to teach the teachers." He also stated that, since the time that his license was suspended, he had continued to hold himself out as a physician.

The hearing officer announced his findings at the hearing. He found that Ziporyn had not shown by a preponderance of the evidence that he merited the public trust and that he had not adhered to the Director's order suspending his license, as evidenced by the fact that he continued to hold himself out as a doctor and had failed to surrender his license certificate to the Department as he was ordered to do. The Medical Board adopted the hearing officer's findings and recommended to the Director that she deny Ziporyn's petition for restoration. The Director issued a decision on April 14, 1992, denying Ziporyn's petition for restoration.

Ziporyn sought restoration of his medical license a second time in April 1996. He stated in his second petition that he had attended no continuing or remedial education since the suspension was imposed. Also, he had not sought medical treatment, psychotherapy, or counseling since the suspension. At a hearing held on his second petition, Ziporyn testified that he had not complied with the Director's order that he had to take a refresher course in post-traumatic stress disorder and that he pass a mental examination prior to restoration of his license. Ziporyn stated that he considered the conditions contained in the Director's order to be "irrelevant." He also stated that he did not consider himself a danger to the public and felt that he had done nothing wrong. Ziporyn said that his license had been suspended for more than five years at that time, and he felt that was "clearly out of proportion to the infractions."

On November 15, 1996, the administrative law judge (ALJ) issued a report and recommendation. The ALJ recommended that the suspension of Ziporyn's medical license remain in effect until Ziporyn complied with the remedial action ordered by the Director. The ALJ found that the mere passage of time did not justify the restoration of his medical license.

The Medical Disciplinary Board adopted the ALJ's findings and recommended to the Director that Ziporyn's license remain indefinitely suspended. On April 21, 1997, the Director issued an order denying Ziporyn's petition for restoration of his medical license.

Ziporyn filed a timely complaint for administrative review of the Director's decision, asking the court to restore his license. Ziporyn claimed that indefinite suspension "shocks the conscience, is unfair, unwarranted, unreasonable, excessive and disproportionate to the offense." Ziporyn alleged that the condition that he undergo a mental and physical examination was "totally improper" and the requirement that he take a refresher course in post-traumatic stress disorder was "ludicrous."

On December 17, 1997, the court entered an order finding that the indefinite suspension of Ziporyn's license was arbitrary and excessive and that any penalty beyond five years was also arbitrary and excessive. The court remanded the matter for reconsideration of the sanction imposed by the Director.

On March 18, 1998, the Medical Disciplinary Board issued its recommendation to the Director. Noting that Ziporyn's license had been suspended because he had "prescribed massive quantities of Demoral for non-therapeutic purposes, and had failed to exercise accepted standards of medical care," the Board stated that it had "thoroughly reviewed this matter" and recommended to the Director that Ziporyn's medical license be indefinitely suspended. The Board pointed out that Ziporyn had never sought review of the Director's original order suspending the license and imposing conditions that had to be fulfilled before the license could be restored. Additionally, the Board stated that it was Ziporyn's burden to prove that he is sufficiently rehabilitated to warrant the public trust.

The Board found that Ziporyn had submitted no evidence that he had completed the terms that the Director had imposed upon him in 1991. The Board stated that it was being consistent with its own precedent in denying restoration unless the petitioner has submitted evidence that he has fully complied with all terms imposed by the Director despite Ziporyn's characterization of those terms as "irrelevant." The Board recommended that Ziporyn's medical license remain indefinitely suspended and that Ziporyn fulfill the following terms: (1) proof of completion of a refresher course in the treatment of post-traumatic stress syndrome; (2) proof of passing a mental and physical examination; and (3) proof of passing a clinical competency examination pre-approved by the Medical Director such as the "SPEX" examination. This third requirement was added because of Department regulations which require such an examination by any physician whose license has expired and who has not practiced medicine in the preceding three years. See 68 Ill. Admin. Code §1285.130(c)(5) (March 26, 1999).

On March 31, 1998, the Director entered an order adopting the Board's findings of facts, conclusions of law, and recommendations.

Ziporyn again sought administrative review in the circuit court. The court entered an order stating that Ziporyn had to file a new complaint for administrative review if he wished to challenge the Director's most recent order. Ziporyn then filed a complaint for administrative review asking the court to reverse the Director's March 31 order and direct the Department to immediately restore his medical license. The Director and the Department responded by asking the court to affirm the Director's decision.

At a hearing on May 20, 1998, the court stated that it could not understand what the Department was requiring of Ziporyn. Noting that the Director had included a new condition - a competency examination - in her order ...


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