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

November 15, 2012

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



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

MEMORANDUM OPINION AND ORDER

This matter is before the Court on a motion to dismiss [37] filed by Defendants Illinois Department of Financial and Professional Regulation ("IDFRP") and Jay Stewart, the Director of the IDFRP. For the reasons set forth below, the Court grants Defendants' motion to dismiss [37] and dismisses this case with prejudice.

I. Background

Plaintiff Jayant Bhalerao has been licensed as a physician in Illinois since 1973, specializing in cardiology and internal medicine. For several years, he practiced medicine at a clinic in Orland Park, Illinois, where he saw 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 parties then extended the TRO by agreement until November 29, 2011. On November 2, 2011, Dr. Bhalerao filed an amended complaint and motion for preliminary injunction. After briefing and a hearing, the Court denied Plaintiff's motion for a preliminary injunction, concluding that Plaintiff did not have a likelihood of success on the merits of his claims that § 2105-165 violates his constitutional rights for substantive and procedural due process, violates the "Contracts Clause," or violates constitutional prohibitions against ex post facto laws and laws that result in double jeopardy. The Court also determined that Plaintiff was not likely to succeed on his state law claims regarding the statute of limitations and res judicata.

Following the Court's ruling, Plaintiff retained new counsel, who requested leave to file another complaint. With leave of court, Plaintiff filed his second amended complaint on February 7, 2012. Although Plaintiff's most recent complaint contains many different "headings" or "claims," he advances the same facts and theories. Plaintiff still brings facial and as-applied challenges to the constitutionality of § 2105-165 under the United States Constitution and state law, but Plaintiff has added numerous arguments that § 2105-165 also violates the Illinois Constitution. Plaintiff requests that the Court declare § 2105-165 unconstitutional (both facially and as applied to him) and enjoin the IDFPR from revoking his license (Plaintiff presumably means to request to have his license restored). Defendants have moved to dismiss the lawsuit in its entirety.

II. Legal Standard

A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 563. The Court accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).

III. Analysis*fn1

Defendants have moved to dismiss Plaintiff's federal claims and also have requested that, in the event the Court dismisses Plaintiff's federal claims, the Court decline to exercise supplemental jurisdiction over Plaintiff's state law claims. Before turning to Plaintiff's federal claims, one threshold point should be mentioned: In his second amended complaint, Plaintiff purports to bring facial and as-applied federal constitutional challenges to § 2105-165. At the preliminary injunction phase, the Court's denial of Plaintiff's preliminary injunction addressed Plaintiff's as-applied federal constitutional challenges and held that Plaintiff could not succeed on those challenges. Plaintiff's facial constitutional challenge would require Plaintiff to prove that § 2105-165(a) has no valid application. See United States v. Salerno, 481 U.S. 739 (1987) ("A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid."). However, once the statute is determined to be valid as applied to Plaintiff, a facial challenge must fail. See People v. Molnar, 857 N.E.2d 209, 218 (Ill. 2006) ("[B]ecause a finding that a statute is constitutional as applied will ...


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