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Mahesh Parikh v. the Division of Professional Regulation

September 19, 2012

MAHESH PARIKH, 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. 12 CH 10974 HONORABLE FRANKLIN VALDERRAMA, JUDGE PRESIDING.

The opinion of the court was delivered by: Justice Steele

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

Presiding Justice Salone and Justice Neville concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff, Mahesh Parikh, M.D., a neurologist, appeals an order of the circuit court denying a stay of an order issued by defendant Jay Stewart, Director of the Division of Professional Regulation (Director) of defendant Illinois Department of Financial and Professional Regulation (Department), indefinitely suspending his medical license for a minimum of one year. For the following reasons, we conclude that the circuit court did not abuse its discretion in denying the stay and affirm the circuit court's judgment.

¶ 2 BACKGROUND

¶ 3 The record in this interlocutory appeal does not contain the pleadings or the transcript of the proceedings before the Department. Dr. Parikh's complaint in administrative review states that the Department filed a complaint against him on October 29, 2010. The case proceeded to a hearing held over three days in June, August and September 2011.

¶ 4 On November 9, 2011, the administrative law judge (ALJ) issued a report and recommendations. The ALJ's report indicates that the Department charged Dr. Parikh with: (1) dishonorable, unethical and unprofessional conduct likely to deceive, defraud or harm the public; and (2) inappropriately touching the breasts and vagina of patient L.K. in the course of providing medical treatment in violation of the Medical Practice Act of 1987. See 225 ILCS 60/22(A)(5),

(A)(20) (West 2010). Dr. Parikh denied all allegations of wrongdoing.

¶ 5 The ALJ found that it was undisputed that Dr. Parikh was licensed to practice in Illinois and practiced as a neurologist. Based on a Department exhibit, the ALJ found L.K. was a patient under Dr. Parikh's care and treatment from December 12, 2008, through August 24, 2009, for migraine headaches, anxiety and joint pain.

¶ 6 The ALJ then summarized and assessed the testimony from seven witnesses, with references to pages of the hearing transcripts. Given the nature of the issues raised on appeal, we find it necessary to summarize portions of the ALJ's report.

¶ 7 According to the ALJ, L.K., a 21-year-old college student, testified that during her third visit to Dr. Parikh on March 20, 2009, she complained of breast tenderness along with other symptoms. With her permission to conduct a breast examination, Dr. Parikh stuck his hand down her shirt, using two or three fingers in a circular motion, and then squeezing her breasts with his hands and fingers. L.K. estimated Dr. Parikh touched her breasts for 30 seconds to a minute, first while she was sitting up then while she was lying down. He did not ask her to remove her shirt or bra, although he felt under both garments. No one else was present during the examination.

¶ 8 L.K. indicated that another breast examination occurred during a March 24, 2009, follow-up visit, although she had not complained of breast tenderness and he did not ask for permission. According to the ALJ, L.K. testified that similar incidents occurred during two subsequent visits in July 2009. L.K. further claimed that during another July 2009 visit, after conducting a breast exam, Dr. Parikh stuck his hand down her pants, underneath her underwear with two or three fingers, pushing into the area where she had pubic hair. L.K. felt uncomfortable about the examination, but trusted Dr. Parikh knew what he was doing.

¶ 9 L.K. was accompanied by her then-boyfriend, Brandon Olson, to another July 2009 visit*fn1 because she felt uncomfortable seeing Dr. Parikh. Brandon was in the room when Dr. Parikh stuck his hand under her shirt and bra to examine her breasts. Dr. Parikh did not ask Brandon to leave the room. Brandon appeared surprised and looked away from the examination.

¶ 10 Moreover, L.K. testified about an August 2009 visit in which Dr. Parikh conducted another breast examination and again stuck his hand down her pants. After receiving permission to continue, he pushed into the pubic area above her clitoris. He then conducted yet another breast examination and later stuck his hand up the leg of her shorts, touching her vaginal lips. After she told him this would be her last visit before returning to college, Dr. Parikh asked if he could hug her and gave her a "really squeezy bear hug." L.K. later told her mother, Tina, about the uncomfortable visit. Tina received L.K.'s permission to ask L.K.'s primary care physician whether the examinations were appropriate. L.K. testified that Tina later telephoned, very upset and crying, and told L.K. that the primary care physician recommended contacting the police.

ΒΆ 11 On cross-examination, Dr. Parikh's counsel highlighted inconsistencies in L.K.'s statements to the police, including how many visits Tina attended and when the breast and vaginal examinations started. In addition, L.K. told police that when Brandon was present, Dr. Parikh did not ask for permission, while Brandon told police the opposite. She was also cross-examined about her relationship with Brandon, which ended in 2010. She was further cross-examined about the office blinds in the exam room; L.K. said they were ...


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