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Parikh v. Division of Prof'l Regulation of Dep't of Fin. & Prof'l Regulation

Court of Appeals of Illinois, First District, Second Division

November 4, 2014

MAHESH PARIKH, M.D., Plaintiff-Appellant,
v.
THE DIVISION OF PROFESSIONAL REGULATION OF THE DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION and JAY STEWART, Director, Defendants-Appellees

Page 80

Appeal from the Circuit Court of Cook County. No. 12 CH 10974. Honorable Franklin U. Valderrama, Judge Presiding.

SYLLABUS

The order of the Director of the Department of Financial and Professional Regulation that plaintiff's medical license be indefinitely suspended for a minimum of one year based on the finding that plaintiff, a neurologist, touched the breasts and pelvic area of a 19-year-old college student for no clinical purpose during several neurological examinations was upheld, notwithstanding the fact that the order was contrary to the recommendation of the Department's Medical Disciplinary Board and the administrative law judge, since the Illinois Medical Practice Act did not require the Director to follow the recommendations of the Board, the Director could have found by clear and convincing evidence that plaintiff did inappropriately touch his patient, the Director's factual findings were not against the manifest weight of the evidence, the determination of the legal effect of the facts was not clearly erroneous, and the sanction imposed was neither unreasonable nor arbitrary.

FOR PLAINTIFF-APPELLANT: Goldberg Law Group, LLC, Chicago, Illinois, Of Michael K. Goldberg, Robert A. Bauerschmidt, Jenna E. Milaeger.

FOR DEFENDANTS-APPELLEES: Lisa Madigan, Attorney General, Chicago, Illinois, Of Michael A. Scodro, Solicitor General, Nadine J. Wichern, Assistant Attorney General.

JUSTICE PIERCE delivered the judgment of the court, with opinion. Justices Neville and Liu concurred in the judgment and opinion.

OPINION

PIERCE, JUSTICE.

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[¶1] Appellant, Mahesh Parikh, M.D., a neurologist, appeals an order of administrative proceeding where the Director of the Division of Professional Regulation (Director) ordered that his medical license be indefinitely suspended for a minimum of one year. Parikh argues: (1) the Director does not have the authority under the Illinois Medical Practice Act of 1987 (225 ILCS 60/1 et seq. (West 2010)) to make factual finding and credibility determinations contrary to those made by the Medical Disciplinary Board of the Department (Board); (2) the Director's findings were against the manifest weight of the evidence; (3) the Director's finding on the legal effect of the facts is clearly erroneous; and (4) the Director abused his discretion by indefinitely suspending Parikh's medical license for a least a year. For the following reasons, we affirm the decision of the Director acting on behalf of the Illinois Department of Financial and Professional Regulation (Department).

[¶2] BACKGROUND

[¶3] The Department filed a two count complaint against Parikh, a neurologist licensed to practice medicine in Illinois, on October 29, 2010. Count I alleged that on July 29, 2010, during an office visit, Parikh examined L.K.'s breasts without wearing gloves and examined her pubic area by pressing on the area near the clitoris region in violation of section 22(A) the Illinois Medical Practice Act of 1987 (Act) (225 ILCS 60/22(A)(5) (West 2010)). Count II alleged that on August 24, 2009, during an

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office visit, Parikh examined L.K.'s breasts by inserting an ungloved hand underneath her clothes, examined her vagina without wearing gloves, hugged L.K. at the end of the exam and examined L.K. without providing a gown in violation of section 22(A) of the Act (225 ILCS 60/22(A)(20) (West 2010)).

[¶4] A hearing before an administrative law judge (ALJ) was held over three days in June, August and September of 2011. On November 9, 2011, the ALJ issued a report assessing the testimony of seven witnesses: L.K, the patient; her ex-boyfriend; her mother; Dane Michael Chetkovich, a neurologist and the Department's expert; Cynthia Monroe and Karen Hoff, Parikh's employees; and Parikh.

[¶5] L.K. was a patient under Parikh's care and treatment from December 12, 2008 through August 24, 2009, for migraine headaches, anxiety and joint pain. L.K. was a 19-year-old college student when she first began visiting Parikh's office. L.K. testified that the blinds on the window in the examination room door were closed during her eight appointments with Parikh in 2008 and 2009. L.K. testified that during her third visit to Parikh's office on March 20, 2009, she complained of breast tenderness along with other symptoms. With her permission to conduct a breast examination, 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 that Parikh touched her breasts for 30 seconds to 1 minute. He performed this test once while she was sitting up and then again after she lay down. No one else was present during the examination.

[¶6] L.K indicated that a similar breast examination occurred during a March 24, 2009 follow-up visit although she did not complain of breast tenderness and Parikh did not ask permission. L.K. testified that similar incidents occurred during two separate visits in July 2009. In addition, L.K. claimed that during a July 29, 2009 visit, after conducting a similar breast exam, Parikh stuck his hand down her pants, underneath her underwear, with two or three fingers pushing into the pelvic area. L.K. felt uncomfortable about the examination, but trusted that Parikh knew what he was doing. Additionally, on a July 2009 visit, L.K. was accompanied by her then-boyfriend Brandon Olson because she felt uncomfortable seeing Parikh. Olson stated that he heard Parikh ask permission to examine L.K.'s breasts and then stuck his hand down her shirt. At that time Brandon looked away to give her some privacy.

[¶7] L.K. also testified that during an August 2009 visit 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. Once the exam was completed, L.K. told Parikh this would be her last visit since she was returning to college. Parikh asked if he could hug her and gave her a " really squeezy bear hug." L.K. told her mother, Tina, about the uncomfortable visit with Parikh. Tina spoke to L.K.'s primary care physician, with L.K.'s approval about the nature of the examinations with Parikh. L.K.'s primary care physician recommended calling the police.

[¶8] L.K. spoke with the police. The police report prepared stated that L.K. told officers that Parikh touched her breasts two appointments before the last one, but she testified that he first touched her breasts during the third appointment. L.K. told the Department that the first

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time Parikh touched her breasts was during the second appointment.

[¶9] Brandon testified regarding the July 21, 2009, visit to Parikh's office with L.K. Brandon testified that he looked away out of respect for his girlfriend when Parikh's hand went down L.K.'s shirt. Parikh's back was to him at the time so he could not see the examination. Brandon testified that L.K. had complained about breast tenderness and that Parikh asked L.K. for her permission to perform the examination.

[¶10] Tina, L.K.'s mother, testified that she accompanied L.K. to Parikh's office twice. During one of the appointments, she left the examination room when Parikh started asking question about L.K.'s sexual history. Tina also testified about the conversation she ...


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