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William Joel Kafin v. the Division of Professional Regulation of

May 17, 2012

WILLIAM JOEL KAFIN,
PLAINTIFF-APPELLANT,
v.
THE DIVISION OF PROFESSIONAL REGULATION OF THE DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION; AND JAY STEWART, DIRECTOR OF THE DIVISION,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County No. 11 CH 03972 Honorable Lee Preston, Judge Presiding.

The opinion of the court was delivered by: Justice Lampkin

No. 1-11-1875

JUSTICE LAMPKIN delivered the judgment of the court, with opinion.

Presiding Justice Robert E. Gordon and Justice Garcia concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff Doctor William Joel Kafin, a psychiatrist, appeals from an order of the circuit court denying his complaint for administrative review and affirming the decision entered by the Director of the Division of Professional Regulation (Director) of the Illinois Department of Financial and Professional Regulation (Department) to revoke plaintiff's controlled substance license and certificate of registration as a physician and surgeon (collectively, medical license). Plaintiff contends that the Director's decision must be reversed because: (1) plaintiff's right to due process was violated where no member of the Illinois Medical Disciplinary Board (Board) was present at his formal administrative hearing; (2) the administrative law judge admitted improper testimony from the Department's expert witness; and (3) the revocation of his medical license is disproportionate discipline to the alleged offense.

¶ 2 For the reasons that follow, we agree with plaintiff that the revocation of his license was an abuse of discretion and remand this cause for the imposition of a sanction. In all other respects, we affirm the circuit court's order confirming the Director's decision.

¶ 3 BACKGROUND

¶ 4 Plaintiff is a psychiatrist who was licensed by the Department in 1980. On May 14, 2007, the Department received a mandatory report alleging that plaintiff caused emotional distress to his patient, L.F., by providing negligent counseling. The report was filed with the Department after L.F. filed a lawsuit against plaintiff.

¶ 5 On September 28, 2007, the Department filed a formal complaint against plaintiff, alleging he had violated the Medical Practice Act of 1987 (Act) (225 ILCS 60/1 to 63 (West 2006)) by engaging in a personal and sexual relationship with L.F. The Department amended its complaint on January 15, 2009. In its amended complaint, the Department claimed that plaintiff violated the Act because his actions constituted: "gross negligence in practice" (count I); "dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud or harm the public" (count II); and "immoral conduct" (count III). See 225 ILCS 60/22(A)(4), (5), (20) (West 2006). The Department sought that plaintiff's medical license be revoked or suspended or that plaintiff be placed on probation or otherwise disciplined.

¶ 6 Prior to a formal administrative hearing, plaintiff underwent a multidisciplinary team (team) assessment that evaluated his mental health and fitness as a psychiatrist. The team prepared a written assessment report of its findings. The assessment report was approved by Doctor John Larson, a psychiatrist and member of the team.

¶ 7 The administrative hearing was held on February 4, February 23 and March 2, 2010. Testimonial evidence was presented to the administrative law judge on the first two hearing dates. Before the start of the hearing on both of those dates, plaintiff objected to proceeding with the presentation of witness testimony on the grounds that no Board members were present at the hearing. The Department responded that Board members were not required to personally attend the hearing. The administrative law judge agreed with the Department and overruled plaintiff's objection.

¶ 8 At the hearing, the Department presented L.F.'s and plaintiff's testimony and the expert testimony of Doctor Larson. The Department also presented documentary evidence, including the assessment report and e-mail correspondence between plaintiff and L.F.

¶ 9 L.F. testified that she was 19 years old in December 2001, when her parents finalized their divorce and she began to feel lonely and experience mood instability. L.F. began to seek psychiatric treatment. On March 18, 2002, L.F. met plaintiff (age 58) and plaintiff prescribed pyschotropic medication for her. In April 2002, L.F. began therapy sessions with plaintiff twice a week. L.F. said that during the first month of her treatment her sessions started at 5 p.m. As L.F.'s treatment progressed, upon plaintiff's recommendation, her sessions began to be scheduled later in the evening. There were no other people present in plaintiff's office in the evenings, including plaintiff's wife, who was the office manager. L.F. said that during her sessions plaintiff talked about his personal life and expressed dissatisfaction with his wife and children. Plaintiff did not take notes during the sessions and was critical of the college L.F. attended. L.F. said that she had concerns that therapy sessions with plaintiff were not in her best interest but she continued to see him because she "wanted to feel connected."

¶ 10 During a therapy session in November 2002 plaintiff told L.F. that he had strong feelings for her, wanted to enter into a social relationship with her and that he could no longer treat her as a patient. Plaintiff and L.F., then 20 years old, entered into a social relationship in December 2002. Plaintiff referred L.F. to another therapist but continued to prescribe medication for her during their relationship.

¶ 11 L.F.'s and plaintiff's social activities included exchanging e-mail and text messages, some of which were sexually suggestive, and going to restaurants and bars. L.F. said plaintiff gave her a "fake ID" and purchased alcohol for her. He also gave her marijuana and samples of prescription medications. On one occasion, plaintiff smoked marijuana with L.F. L.F. said that, on more than one occasion, she accompanied plaintiff on his medical rounds at nursing homes and that plaintiff told the staff of the nursing homes that she was his "intern."

¶ 12 In late December 2002, plaintiff asked L.F. to stay with him at a hotel. L.F. agreed and stayed with plaintiff for three nights at the hotel. During this time, plaintiff slept in the same bed as L.F. and the pair engaged in sexual activity, including kissing and touching of genitals. L.F. said that on the second night plaintiff gave her two sleeping pills, "Ambien," which she took. She said that initially she could not remember what happened that night, but she was able to recall in "flashbacks" the next morning that they had engaged in sexual activity.

¶ 13 In January 2003, plaintiff moved out of the house he shared with his wife and into his son's apartment. During that month, L.F. alternated between sleeping at plaintiff's son's apartment and her mother's house. L.F. said that during this time, plaintiff and she engaged in sexual intercourse on about 5 to 10 occasions. She explained that, although plaintiff could not maintain an erection due to erectile dysfunction, vaginal penetration occurred for about 30 seconds at a time.

ΒΆ 14 L.F. testified that in February 2003, she began to have less physical contact with plaintiff. The pair continued to exchange e-mails and text messages, some of which were sexually suggestive, until April 2003. Around that time, their contact became more sporadic. L.F. saw plaintiff for the last time in July 2003 when the pair had lunch together. She said that during lunch plaintiff tried to play "footsy" with her under the table. L.F. refused and did not see plaintiff again. L.F. said that before she began treatment with plaintiff she lived with her mother, attended college, had ...


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