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Albazzaz v. Illinois Department of Professional Regulartion

May 11, 2000

ALA ALBAZZAZ, PLAINTIFF-APPELLANT,
V.
ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION AND NIKKI ZOLLAR, DIRECTOR, DEFENDANTS-APPELLEES



Appeal from the Circuit Court of Cook County. No. 98 CH 911 Honorable Thomas P. Durkin, Judge Presiding.

The opinion of the court was delivered by: Justice Barth

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

Plaintiff, Ala Albazzaz, M.D., filed a complaint for administrative review against the Illinois Department of Professional Regulation (the Department) and its Director in the circuit court of Cook County. Therein, Albazzaz contested the Department's conclusion that he had violated two provisions of the Medical Practice Act in connection with the care and treatment of six female patients. The circuit court affirmed the Director's order in its entirety. That order provided, among other things, for the indefinite suspension of Albazzaz's license (but for a minimum of five years), and for Albazzaz to pay a fine of thirty thousand dollars ($30,000), due within thirty days from the date the Director signs a final order.

Albazzaz has raised the following issues on appeal: whether the findings were against the manifest weight of the evidence; whether there was prejudicial error in not admitting into evidence expert testimony offered by Albazzaz; whether there was prejudicial error in not admitting other evidence offered by Albazzaz in mitigation of the sanction; whether there was prejudicial error in using an administrative warning letter as evidence in aggravation; whether the sanctions imposed on Albazzaz are unduly harsh, intended as punishment or otherwise violative of law; and whether the administrative complaint violated 5 ILCS 100/10-25(A)(3) of the Administrative Procedures Act.

Background

This matter is based on a second amended complaint filed by the Department against Albazzaz. Six counts relating to the care and treatment of six female patients remained at the end of the administrative hearing. Those counts alleged that Albazzaz violated the Medical Practice Act of 1987 and Department rules by engaging in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud or harm the public and by engaging in immoral conduct in the commission of any act, including but not limited to, the commission of an act of sexual misconduct related to [his] practice. (225 ILCS 60/22(A)(5) and (A)(20) (1996)).

Albazzaz, 46 years old at the time of the 1997 hearing, graduated from medical school in his native Iraq. He is married and has three children. Albazzaz left Iraq in 1981, after completing a medical internship, one year of military service, and approximately two years of teaching and private practice in general medicine. After coming to Chicago, he completed a one-year pediatric residency with Rush University Medical School and a three-year internal medicine residency with Loyola University, Hines Veterans Administration Hospital. After working two years in hospital emergency rooms, Albazzaz was hired as a primary care physician by Humana Managed Health Care. Licensed in Illinois and Indiana, Albazzaz is Board certified in internal medicine. He has no special training in gynecology.

Prior to the commencement of his employment with Humana, the Department investigated a complaint lodged against Albazzaz. At the conclusion of the investigation in June, 1991, the Department sent Albazzaz an "Administrative Warning Letter." In that letter, the Department indicated that it had decided against initiating formal charges for allegedly engaging in unprofessional conduct of a character likely to deceive, defraud or harm the public. The Department further indicated therein that its decision was based in part on Albazzaz's agreement that a nurse be present during his future examinations of female patients. Humana was unaware of the administrative warning letter.

Each of the women who testified during the administrative hearing had HMO coverage and received care at the Humana clinic where Albazzaz worked. Albazzaz was assigned as their primary care physician. Two of the women also testified at Albazzaz's criminal trial, which resulted in acquittal. Those two women met in connection with that trial; otherwise, none of the six women knew each other. [Nonpublishable material removed under Supreme Court Rule 23].

The Hearing Officer's Report and Recommendation

At the close of the evidence, the hearing officer issued a report, recommending that the Medical Disciplinary Board adopt his findings and conclusions, including the following: the six complaining witnesses were credible; Albazzaz was not credible; and Albazzaz violated the Medical Practice Act of 1987 by engaging in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public and by engaging in immoral conduct in the commission of any act, including but not limited to, the commission of an act of sexual misconduct related to the licensee's practice (225 ILCS 60/22 (A)(5) and (A)(20) (1996)). The hearing officer also recommended that Albazzaz's medical license be suspended indefinitely for a minimum of 5 years, that he be fined $30,000, that he be required to successfully complete a Special Purpose Examination ("SPEX") prior to petitioning for restoration, and that any restoration be conditioned on Albazzaz not being allowed to examine female patients in an unchaperoned environment.

The Director's Decision and the Recommendation of the Medical Disciplinary Board

The Board adopted the findings of fact and conclusions of law made by the hearing officer. The Board rejected, in part, the hearing officer's recommendation regarding the type of discipline imposed on Albazzaz's license, making instead the following recommendations: indefinite suspension for a minimum of 5 years; payment of a $30,000 fine within 30 days of the Director's final order; and the successful completion of the SPEX.

Additionally, in conjunction with a petition for restoration, Albazzaz would be required to provide: documentation of timely payment of the $30,000 fine and successful completion of the SPEX; a written report of a psychiatric evaluation performed by a psychiatrist pre-approved by the Medical coordinator within 6 months prior to the filing of the petition, which shows that Albazzaz can practice medicine with reasonable judgment, skill and safety; and proof that he is deemed sufficiently rehabilitated to warrant the public trust in accordance with ...


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