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Jayant C. Bhalerao, M.D v. Illinois Department of Financial and Professional Regulations

November 29, 2010

JAYANT C. BHALERAO, M.D., PLAINTIFF,
v.
ILLINOIS DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATIONS, ET AL., DEFENDANT.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Plaintiff Jayant Bhalerao, M.D.'s motion for preliminary injunction. For the reasons set forth below, the motion is respectfully denied.

I. Background

Plaintiff Jayant Bhalerao has been licensed as a physician in Illinois since 1973, specializing in cardiology and internal medicine. For the past ten years, he has practiced medicine at a clinic in Orland Park, Illinois, where he sees approximately 10-15 patients per day. In 1999, a patient accused Dr. Bhalerao of inappropriately touching her during an examination, and the Henry County State's Attorney charged him with one count of criminal sexual abuse and one count of misdemeanor battery related to that accusation. Dr. Bhalerao entered a plea of not guilty and testified on his own behalf at trial. On June 27, 2000, a jury acquitted Dr. Bhalerao of the criminal sexual abuse charge, but returned a guilty verdict on the charge of misdemeanor criminal battery. Plaintiff did not appeal the conviction. Dr. Bhalerao has never been convicted of a sex offense. Following the verdict, Dr. Bhalerao was ordered to pay a fine of $2,500.00. The court did not impose any additional punishment as part of his sentence, such as imprisonment, probation, or community service, nor was Dr. Bhalerao required to register as a sex offender.

On September 19, 2000, the Illinois Department of Financial and Professional Regulation ("IDFPR"), which is charged with issuing, renewing and disciplining professional licenses, including health professionals, filed a disciplinary action against Dr. Bhalerao, charging him with "unprofessional conduct" under the Medical Practice Act. See 225 ILCS 60/22(A)(5). In July 2002, Dr. Bhalerao and the Medical Disciplinary Board entered a Stipulation and Recommendation for Settlement and submitted that recommendation to the Director. On December 30, 2002, the Acting Director of IDFPR entered an order (the "2002 Order") adopting the recommendation, which reprimanded Dr. Bhalerao's license and required him to have a chaperone present whenever he examined a female patient. Dr. Bhalerao has complied with the conditions of the 2002 Order, and his license has remained in good standing and active status since 2002. The reprimand resulting from the 2002 Order is the only discipline on Dr. Bhalerao's record.

Effective August 20, 2011, the Illinois General Assembly added a new section, 20 ILCS 2105/2105-165, to the Civil Administrative Code of Illinois. Section 2105-165 mandates the permanent revocation of the licenses of health care workers in certain circumstances. Section 2105-165 provides in pertinent part:

(a) When a licensed health care worker, as defined in the Health Care Worker Self-Referral Act, (1) has been convicted of a criminal act that requires registration under the Sex Offender Registration Act; (2) has been convicted of a criminal battery against any patient in the course of patient care or treatment, including any offense based on sexual conduct or sexual penetration; (3) has been convicted of a forcible felony; or (4) is required as a part of a criminal sentence to register under the Sex Offender Registration Act, then, notwithstanding any other provision of law to the contrary, the license of the health care worker shall by operation of law be permanently revoked without a hearing.

20 ILCS 2105/2105-165 (emphasis added). On October 7, 2011, Dr. Bhalerao received a Notice of Intent to Issue Permanent Revocation Order ("Notice") from the IDFPR, notifying him that his medical license was to be revoked because of a "[c]onviction of a criminal battery against a patient in the course of patient care or treatment." The Notice provided Dr. Bhalerao with the opportunity to challenge the revocation for three reasons: (1) that he was incorrectly identified as the person with the conviction; (2) that the conviction has been vacated, overturned, or reversed, or a pardon has been granted; or (3) the conviction was not a disqualifying conviction. Dr. Bhalerao concedes that none of these defenses apply to him. The Notice indicated that it would become effective 20 days from its date (October 5, 2011) or on October 25, 2011.

Dr. Bhalerao filed his complaint and a motion for temporary restraining order on October 24, 2011. On October 25, 2011, the Court entered a temporary restraining order ("TRO") [11], which expired in the first instance on November 8, 2011. The Court entered an order [21] on November 8 extending the TRO for "good cause" shown until November 22, 2011. The TRO has been extended by agreement of the parties until November 29, 2011, to allow the Court time to issue its written ruling after taking full briefing and oral argument. On November 2, 2011, Dr. Bhalerao filed an amended complaint and motion for preliminary injunction. Plaintiff claims that § 2105-165 is unconstitutional because it violates his rights to procedural and substantive due process, it violates the "Contracts Clause," and it violates constitutional prohibitions against ex post facto laws and laws that result in double jeopardy. Plaintiff also argues that revocation of his license is barred by the statute of limitations set forth in a separate statute (the Medical Practice Act) and res judicata.

II. Standard for Preliminary Injunction

Like all forms of injunctive relief, a preliminary injunction is "an extraordinary remedy that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original); see also Goodman v. Ill. Dep't of Financial & Professional Reg., 430 F.3d 432, 437 (7th Cir. 2005) (same). To justify a preliminary injunction, Plaintiff must show that he is "likely to succeed on the merits" of his claims, that he is likely to suffer irreparable harm without an injunction, that the harm he would suffer without the injunction is greater than the harm that preliminary relief would inflict on Defendants, and that the injunction is in the public interest. Michigan v. U.S. Army Corps of Engineers, 2011 WL 3836457, at *2 (7th Cir. 2011) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).

If the moving party meets its initial burden, then the court must consider the irreparable harm that the nonmoving party will suffer if preliminary relief is granted, balancing such harm against the irreparable harm the moving party will suffer if relief is denied. Storck USA, L.P. v. Farley Candy Co., 14 F.3d 311, 314 (7th Cir. 1994). The court also considers the public interest served by granting or denying the relief, including the effects of the relief on non-parties. Id.; see also Winter, 129 S. Ct. at 376-77 ("courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction"). The court weighs all of these factors, "sitting as would a chancellor in equity" (Abbott, 971 F.2d at 12) and applying a "sliding scale" approach, under which "the more likely plaintiff will succeed on the merits, the less the balance of irreparable harms need favor plaintiff's position." Ty, Inc. v. The Jones Group, 237 F.3d 891, 895 (7th Cir. 2001). As the Seventh Circuit has stressed, "[t]he sliding scale approach is not mathematical in nature, rather 'it is more properly characterized as subjective and intuitive, one which permits district courts to weigh the competing considerations and mold appropriate relief.'" Id at 895-96 (quoting Abbott Labs, 971 F.2d at 12).*fn1

Here, Plaintiff has met his burden of demonstrating that he is likely to suffer irreparable harm without an injunction and that the harm he would suffer without the injunction is greater than the harm that preliminary relief would inflict on Defendants. Specifically, he has demonstrated that he has an ascertainable right in his medical license. See Smith v. Department of Registration and Ed., 106 N.E.2d 722, 726 (Ill. 1952) ("It has been universally held that a license to practice medicine is a 'property right,' within the meaning of the constitutional guarantees of due process of law."). He also has shown that without an injunction, he will suffer irreparable harm from being unable to continue in his career as a physician. Finally, he has demonstrated that he has no adequate remedy at law in this matter, because monetary damages fall short of remedying the loss associated with the revocation of his medical license and the end to his chosen occupation. Because Dr. Bhalerao has met his burden with respect to these elements, the Court moves expediently to the primary concern-whether Plaintiff has any chance of success on the merits.

III. Analysis

A.Likelihood of Success on the Merits

1. Substantive due process challenge

Plaintiff primarily advances two substantive due process arguments. First, Plaintiff contends that § 2105-165(a) has been applied retroactively as to him. And second, Plaintiff maintains that § 2105-165(a) deprives him of a recognized property interest without a rational basis. See, e.g., General Auto Svc. Station v. City of Chi., 526 F.3d 991, 997 (7th Cir. 2008) (analyzing both types of claims under substantive due process). Substantive due process protects fundamental liberty interests against infringement by the government. Reno v. Flores, 507 U.S. 292, 301-02 (1993); Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). In this case, no fundamental right is at issue (see Dittman v. State of Cal., 191 F.3d 1020, 1031 n.5 (9th Cir. 1999) (noting that Supreme Court has never recognized fundamental right to pursue one's chosen occupation)); however, Plaintiff has stated a "generalized" liberty interest in pursuing his chosen field (see id.at 1029) (noting that early Supreme Court cases suggested such an interest). Because a fundamental right is not involved, substantive due process requires only that "the practice be rationally related to a legitimate governmental interest, or alternatively phrased, that the practice be neither arbitrary or irrational." General Auto Svc., 526 F.3d at 1000 (quoting Lee v. City of Chicago, 330 F.3d 456, 461 (7th Cir. 2003)); see also Schware v. Bd. of Bar Examiners, 353 U.S. 232, 239 (1957) (noting that state may legitimately set requirements for occupational qualification, but such requirements "must have a rational connection with the applicant's fitness or capacity to practice").

With regard to retroactivity, Plaintiff's argument assumes that a statute that relies in part upon antecedent facts-such as his earlier criminal battery conviction-necessarily operates retroactively (or retrospectively). However, "[a] statute does not operate 'retrospectively' merely because it is applied in a case arising from conduct antedating the statute's enactment, [] or upsets expectations based in prior law. Rather, the court must ask whether the new provision attaches new legal consequencesto events completed before its enactment." Landgraf v. USI Film Products, 511 U.S. 244, 269-270 (1994). Thus, "[a] statute is not made retroactive merely because it draws upon antecedent facts for its operation." Cox v. Hart, 260 U.S. 427, 435 (1922); see also Reynolds v. United States, 292 U.S. 443, 449 (1934) ("A statute is not rendered retroactive merely because the facts or requisites upon which its subsequent action depends * * * are drawn from a time antecedent to the enactment.").

The Seventh Circuit's recent decision in United States v. Leach is instructive. In Leach, the court upheld the Sex Offender Registration and Notification Act ("SORNA"), a law that requires sex offenders to register in every jurisdiction in which they live, work, and attend school, notify government officials when changing residence, and provide personal identifying information. United States v. Leach, 639 F.3d 769 (7th Cir. 2011). The court identified Leach's complaint in terms that mirror an argument advanced by Dr. Bhalerao: that the law at issue "effectively increases the punishment" for the prior offense. The court recognized that SORNA "imposes significant burdens on * * * offenders who * * * may have committed their crimes and completed their prison terms long before the statute went into effect" but also noted that the law targeted "only the conduct undertaken by convicted sex offenders after its enactment." The court further clarified that, ...


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