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Howard Wolin v. the Department of Financial and

December 21, 2012

HOWARD WOLIN,
PLAINTIFF-APPELLANT,
v.
THE DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION; BRENT ADAMS, AS SECRETARY OF THE DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION; DONALD W. SEASOCK, AS ACTING DIRECTOR OF THE DIVISION OF PROFESSIONAL REGULATION; ILLINOIS STATE MEDICAL DISCIPLINARY BOARD; EDWARD P. ROSE, AS CHAIRPERSON OF THE BOARD; AND TARIQ H. BUTT, JUDY L. CATES, RICHARD R. FAY, MARIA LAPORTA, GEORGIA D. LUBBEN, SARITA M. MASSEY, GRACE ALLEN NEWTON, AND RODEY WASSEF, AS MEMBERS OF THE BOARD,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 10 CH 44976 The Honorable Lee Preston, Judge Presiding.

The opinion of the court was delivered by: Justice Lampkin

PRESIDING JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Justices Hall and Robert E. Gordon concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff, Howard E. Wolin, M.D., appeals the decision of the Illinois Department of Financial and Professional Regulation (Department) to indefinitely suspend his license to practice medicine. Plaintiff contends that the administrative proceedings he was provided failed to comply with the requirements of due process where he was deprived of a full and fair opportunity to be heard and subjected to the bias of the administrative decision makers. Plaintiff further contends that the acting director of division of professional regulation abused his discretion when finding plaintiff in default and entering judgment against him. Based on the following, we affirm the Department's decision to indefinitely suspend plaintiff's medical license.

¶ 2 FACTS

¶ 3 Plaintiff was a registered physician and surgeon in Illinois with a concentration in the field of psychiatry. Plaintiff's practice included "integrative medicine," in which alternative or complementary treatments were used along with conventional mainstream medicine. Plaintiff claimed to use "some aspects" of mind-body medicine, biologically based practices, and energy therapies.

¶ 4 On October 16, 2008, the Department sent plaintiff a notice of preliminary hearing along with a complaint that the Department had filed against plaintiff. According to the complaint, on or about April 28, 2007, plaintiff began treating C.B., and the treatment "included the use of crystals and secret methods" in violation of the Illinois Medical Practice Act of 1987 (Medical Practice Act) (225 ILCS 60/22 (West 2008)). The complaint additionally claimed that between April 28, 2007, and August 7, 2007, plaintiff charged C.B. $11,451.28 for consultations, supplements, crystals, and shipping. Specifically, plaintiff was charged with violating three sections of the Medical Practice Act: section 22(A)(5), for engaging in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public; section 22(A)(6), for obtaining any fee by defraud, deceit, or misrepresentation; and section 22(A)(10), for making a false or misleading statement regarding his skill or the efficacy or value of the medicine or treatment he prescribed. 225 ILCS 60/22(A)(5), (6), (10) (West 2010). The Department sought revocation, suspension, or other discipline against plaintiff's medical license.

¶ 5 Plaintiff responded to the complaint on November 19, 2008, denying the Department's allegations, including the allegation that he used "secret methods" in treating a patient. Plaintiff further raised the matter of the Department's failure and refusal to supply him with appropriate release documents required by the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) (42 U.S.C. § 1320d et seq. (2006)).

¶ 6 At the Department's preliminary hearing, plaintiff complained that the Department should have held an informal conference first. As a result, an informal conference was held on May 20, 2009, and was attended by plaintiff, his attorney, an attorney for the Department, and Edward P. Rose, M.D., chair of the medical disciplinary board (Disciplinary Board). Informal conferences held before the Disciplinary Board are confidential; therefore, no transcript appears in the record and we present the statements as they have been reported by the parties. During the conference, plaintiff invoked his constitutional right to decline to answer whether he personally used crystals as part of his practice because, according to plaintiff, he had been threatened with criminal action for using crystals. Instead, plaintiff attempted to make a statement regarding the "theory and practice of the therapeutic use of *** crystals and other forms of energy healing and to discuss the subject generally." According to plaintiff, Dr. Rose "sharply interrupted" him, refused to hear the statement, and said he was not interested in plaintiff's theories. According to plaintiff, Dr. Rose said the relevant issue was whether plaintiff used crystals in his practice because such actions would result in discipline. At that point, the informal conference was terminated.

¶ 7 Then, on September 25, 2009, plaintiff filed a motion seeking to disqualify members of the Disciplinary Board from hearing the disciplinary charges against him. The Department filed a response, denying any wrongdoing. Plaintiff's motion to disqualify was never ruled on by the Department.

¶ 8 On October 5, 2009, the Department filed its first motion to compel plaintiff to produce "any and all medical records, psychiatric records, psychotherapy notes and/or any other relevant information regarding patient C.B." and enclosed copies of documents purporting to be authorizations executed by C.B. permitting plaintiff to release the requested records to the Department. The release requests were provided to plaintiff's attorney on February 9, 2009, but plaintiff failed to produce any records in response. On November 23, 2009, the Department filed a second motion to compel. On December 28, 2009, plaintiff answered, stating that the record-release forms signed by C.B. were defective. On January 12, 2010, the Department filed a response, maintaining the release requests complied with the requisite statute.

¶ 9 On February 8, 2010, at a status hearing, plaintiff sought leave to file a surreply to the Department's January 12, 2010, response. The administrative law judge (ALJ), Sadzi Oliva, denied the request. In addition, ALJ Oliva found that the releases provided by C.B. complied with the Illinois Mental Health and Developmental Disabilities Confidentiality Act (Confidentiality Act) (740 ILCS 110/1 (West 2008)) and the federal HIPAA, and further found that the therapist-patient privilege could be waived by the holder of the privilege, which C.B. clearly intended to do. Accordingly, the order granted the Department's second motion to compel, provided plaintiff until March 8, 2010, to comply, and noted a status hearing scheduled for March 29, 2010.

¶ 10 However, on March 11, 2010, the Department filed a motion to transfer the matter to the acting director of the division of professional regulation, Donald W. Seasock (Director), for a decision based on the pleadings because plaintiff had not complied with the ALJ's discovery order. After reviewing the transfer order, ALJ Oliva provided plaintiff until March 24, 2010, to respond and confirmed the March 29, 2010, status hearing. On March 24, 2010, plaintiff responded, seeking reconsideration and vacatur of the February 8, 2010, order to produce C.B.'s medical records. Plaintiff argued that he had not received the February 8, 2010, order, and that the release forms did not comply with the law.

¶ 11 On March 29, 2010, a status hearing was held before ALJ John Lagattuta during which he refused to entertain additional arguments, finding the matter to be fully briefed. ALJ Lagattuta ultimately denied plaintiff's motion and required plaintiff to produce C.B.'s medical records by April 5, 2010, otherwise a default order would be entered.

¶ 12 On April 12, 2010, plaintiff was held in default for failing to produce C.B.'s medical records and the matter was transferred to the Director. Upon transfer, the matter was assigned to the Disciplinary Board, this time to review the pleadings and make recommendations to the Director. On June 2, 2010, the Disciplinary Board issued its findings of fact, conclusions of law, and recommendations to the Director, recommending that plaintiff be found guilty of the violations charged in the complaint and that his license be indefinitely suspended.

¶ 13 On June 3, 2010, the Department issued a notice to plaintiff stating that he had 20 days from the date of mailing to present a written motion for rehearing/reconsideration specifying the grounds therefor. The notice further provided that the "Director of the Department may grant oral argument on this Motion if he deems it necessary for a clearer understanding of the issues presented." Plaintiff filed a motion for rehearing and/or reconsideration on June 22, 2010, requesting oral argument. In his motion, plaintiff claimed that Dr. Rose and the Disciplinary Board were biased against him and that the record-release forms were invalid. The Department responded on July 2, 2010, citing the February 8, 2010, order of ALJ Oliva. Further, the Department attached the six release forms signed and submitted by C.B. On August 9, 2010, plaintiff filed his reply to the Department's response.

¶ 14 On September 23, 2010, the Director denied plaintiff's motion to reconsider the Disciplinary Board's recommendation. The Director found that three of the release forms signed by C.B. were valid and enforceable authorizations to release the requested medical records. Additionally, the Director concluded that plaintiff's failure to comply with those documents was grounds for a decision upon the pleadings. Without a hearing, the Director adopted the Disciplinary Board's findings, conclusions, and recommendation. Consequently, plaintiff's medical license was indefinitely suspended.

¶ 15 On October 15, 2010, plaintiff filed his complaint for administrative review and the Department responded. At the subsequent hearing, the circuit court rejected the claim that Dr. Rose, or any other member of the Disciplinary Board, was biased. In its final written order, entered July 20, 2011, the court explained that "there is nothing in the record that indicates that Dr. Rose was unable to judge this controversy fairly." The court also found that the Department did not violate plaintiff's right to due process by deciding the matter on the pleadings because the entry of default against plaintiff was reasonable under the circumstances. Furthermore, the court held that the three record-release authorizations found valid by the Department did indeed comply with the law. This appeal followed.

¶ 16 DECISION

¶ 17 I. Standard of Review

¶ 18 Plaintiff disputes the Department's decision to suspend indefinitely plaintiff's medical license on the grounds that he was deprived of his due process rights throughout the administrative proceedings and that the decision was based on faulty record-release authorizations.

¶ 19 On appeal, this court reviews the agency's decision and not the determination of the circuit court conducting the administrative review. Calvary Baptist Church of Tilton v. Department of Revenue, 349 Ill. App. 3d 325, 330 (2004). The applicable standard for reviewing an agency decision depends on "whether the question presented is one of fact, a mixed question of fact and law, or a pure question of law." Cunningham v. Schaeflein, 2012 IL App (1st) 120529, ¶ 19. The factual findings and conclusions of an administrative agency are deemed prima facie true and correct. Sudzus v. Department of Employment Security, 393 Ill. App. 3d 814, 819 (2009). The reviewing court's function is to determine whether those findings are contrary to the "manifest weight of the evidence." Id.; Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88 (1992). An administrative agency's factual determinations are against the manifest weight of the evidence "only if the opposite conclusion is clearly evident." Abrahamson, 153 Ill. 2d at 88. "The mere fact that an opposite conclusion is reasonable ...


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