Farney v. Anderson

• Decision Date: 20 January 1978
• Docket Number: No. 14552,14552
• Parties: , 14 Ill.Dec. 346 William E. FARNEY, M.D., Plaintiff-Appellee, v. Joan G. ANDERSON, Director of the Department of Registration and Education, and Successor in Office to Ronald E. Stackler, and the Department of Registration and Education, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 151

372 N.E.2d 151

56 Ill.App.3d 677, 14 Ill.Dec. 346

William E. FARNEY, M.D., Plaintiff-Appellee, v. Joan G. ANDERSON, Director of the Department of Registration and Education, and Successor in Office to Ronald E. Stackler, and the Department of Registration and Education Defendant-Appellant.

No. 14552.

Appellate Court of Illinois, Fourth District.

Jan. 20, 1978.

William J. Scott, Atty. Gen., George W. Lindberg, First Asst. Atty. Gen., Paul J. Bargiel, Asst. Atty. Gen., Chicago, for defendant-appellant.

Pree & Pree, Springfield, for plaintiff-appellee.

WEBBER, Justice.

This is an appeal from the order of the circuit court of Sangamon County, sitting in administrative review, reversing an order of the Department of Registration & Education (Department) which suspended the plaintiff's medical license for a period of six months.

The Department filed its complaint against plaintiff and alleged, in substance, that plaintiff, a licensed physician and surgeon, had dispensed certain controlled substances for no legitimate medical reason. The prayer of the complaint was that plaintiff's license to practice medicine be suspended or revoked pursuant to section 16(4) of the Medical Practice Act (Ill.Rev.Stat.1975, ch. 91, par. 16a(4)), which provides for such suspension or revocation for "engaging in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public."

In accordance with section 17.02 of the Act (Ill.Rev.Stat.1975, ch. 91, par. 16b.02) a hearing was conducted by the Illinois State Medical Disciplinary Board which recommended the six-months' suspension. The Department approved the recommendation and plaintiff sought administrative review under section 17.08 of the same statute. The circuit court reversed the Department.

Central to the decision in this cause is the following finding of the trial court in its order of reversal: "There is no evidence in the record before this Court, other than the testimony and opinion of the Plaintiff, Dr. Farney, to support the finding of the agency that there was 'no legitimate medical reason for issuing any one or all of the aforementioned prescriptions.' "

This leads to a broader question concerning the nature of evidence before an administrative tribunal and the manner in which a reviewing court should deal with it.

At the hearing before the Medical Disciplinary Board, the panel was composed of three doctors. Testimony was taken from two witnesses, Edward Doyle, who was an investigator for the Illinois Legislative Investigating Commission, and the plaintiff, Dr. Farney.

Doyle testified that he was an undercover agent who, along with others, was looking into the abuse of medical prescriptions by Illinois physicians. He used the alias of "Dennis Harvey." Doyle presented himself to Dr. Farney and stated that he had become a heroin addict in the Marine Corps; he requested a prescription for Preludin, which is a Schedule III controlled substance. It is a stimulant, also sometimes used for weight control. Doyle was not in fact an addict.

During this first visit of Doyle, Dr. Farney weighed him; the Department concedes that Doyle was slightly overweight at the time. Farney also took his blood pressure and listened to his heartbeat through his outer clothing. Farney gave him a prescription for 45 tablets of Preludin and told him to return in one month. Doyle further testified that he sought more Preludin than that prescribed, telling Farney that he was going to go to other doctors in the area and use different names to obtain further prescriptions.

Doyle returned for a second visit about a month later. No further physical examination was made at that time. In addition to Preludin, Doyle asked for a prescription for Dilaudid, but upon being told by Farney that this was impossible, he asked for Dolophine. This was also refused, but Farney did write prescriptions for 60 more Preludin and 50 tablets of Tuinal, a depressant and also a Schedule III controlled substance. Doyle indicated to Farney that he was going to trade some of these drugs for Dilaudid and Farney cautioned him that trading of drugs was a risky business.

Dr. Farney testified that Doyle told him that he wanted to lose weight because he had a back injury from Viet Nam which was bothering him. He further stated that he performed all the examination necessary for the prescription of a diet pill. He denied that he told Doyle to return in a month or that there was any conversation about trading pills or about Doyle being an addict; he admitted saying in substance that the pill thing was getting out of hand.

One of the panel asked Dr. Farney if he ever refused to prescribe pills and he answered in the affirmative; when asked why he did not refuse Doyle, he answered, "Because I believed he was honest. I believed he was a Viet Nam veteran. I believed he served his country. I thought I was doing a service to him and the country."

There was some further nattering between the panel and Dr. Farney over techniques of examination and other medical esoterica, but Farney remained firm that in his professional opinion there was a legitimate medical reason for the prescriptions. The prescription orders were introduced and that was all the evidence before the Board.

The question of expert testimony and opinion evidence before administrative tribunals is not without problems. These are neatly summarized in section 353 of McCormick's Handbook of the Law of Evidence, 2d Ed. (1972), by Edward W. Cleary:

"The general admissibility of expert and nonexpert testimony in administrative hearings is no longer open to question, but doubt still exists regarding the weight an expert's views should be given. For a time agencies and reviewing courts followed early judicial reasoning and refused to hear expert testimony on the very question that the agency was created to decide. Other courts took the position that it would be unfair for an agency to rely on its own expertise or the expert testimony of its staff when their opinions were contradicted by outside experts. In rejecting these contradictory appeals to ignorance, courts now recognize legislative intention to establish expert agencies. Therefore, agency decisions which rely on the agency's own expertness are upheld when the respondent offers no contrary expert testimony or when expert testimony offered by staff members and outside experts conflicts. Some courts have gone even further and given excessive deference to the knowledge of the administrative agency by upholding its decision in the face of uncontradicted expert testimony to the contrary. However, the demands of fairness are now generally accepted, and an agency seeking to rely on its expertise must present expert testimony subject to cross-examination on the record or give the respondent fair notification that official notice will be taken of such 'facts.' "

In the case at bar, the only evidence presented by the Department was the testimony of the undercover agent and the prescription orders. The only expert testimony came from the respondent in his own behalf. In a tortured piece of reasoning the Department claims that expert medical testimony for the Department would serve only to corroborate Doyle. Such a statement ignores completely that it might also at best negate, and at worst, conflict with, the testimony of the respondent.

In Smith v. Dept. of Registration & Education (1952), 412 Ill. 332, 346, 106 N.E.2d 722, 729, on a...