Kaplan v. Department of Registration and Ed.

• Decision Date: 10 March 1977
• Docket Number: No. 76--362,76--362
• Citation: 5 Ill.Dec. 303,46 Ill.App.3d 968,361 N.E.2d 626
• Parties: , 5 Ill.Dec. 303 Leslie S. KAPLAN, Plaintiff-Appellant, v. DEPARTMENT OF REGISTRATION AND EDUCATION, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 626

361 N.E.2d 626

46 Ill.App.3d 968, 5 Ill.Dec. 303

Leslie S. KAPLAN, Plaintiff-Appellant, v. DEPARTMENT OF REGISTRATION AND EDUCATION, Defendant-Appellee.

No. 76--362.

Appellate Court of Illinois, First District, Fourth Division.

March 10, 1977.

Rehearing Denied April 13, 1977.

Herbert N. Sirott, Chicago, for plaintiff-appellant.

William J. Scott, Atty. Gen. of Ill., Chicago (Patricia Rosen, Asst. Atty. Gen., of counsel), for defendant-appellee.

ROMITI, Justice.

The plaintiff appeals from the revocation by the Department of Registration and Education of his license to practice medicine because of his conviction of a felony. While the plaintiff raises several constitutional questions, most of which are very tenuous, the only serious issue before this court is whether the Department, before revoking Dr. Kaplan's license, was required to find that he had not been sufficiently rehabilitated and, if it was, must this court reverse and remand the proceedings since there was no express finding as to lack of rehabilitation.

In September, 1970, the plaintiff, Kaplan, was found guilty in the federal court of five counts of mail fraud (18 U.S.C. § 1341), and one count of conspiracy (18 U.S.C. § 371), and sentenced to serve three years' imprisonment on each charge, the sentences to run concurrently, and fined $15,000. The conviction stemmed from a scheme to defraud several insurance companies, by arranging 'fake automobile and pedestrian accidents,' having the participants visit Kaplan's office and causing fraudulent medical reports to be prepared and sent to the insurance companies. The Court of Appeals in 1972 reversed the conviction on one of the counts because of perjured testimony and remanded for a new trial. It, however, ruled that the convictions under the other counts were not tainted by the perjured testimony. It further ruled that testimony from the alleged 'victims' of the accidents, from the lawyers retained by the victims and from other participants in the schemes, in addition to documentary evidence consisting of Kaplan's records of patients' visits and medical reports, readily sustained his conviction on the other counts.

This was not the first time that Kaplan had been in trouble, although apparently the first time his conduct amounted to a criminal offense. In April, 1955, Kaplan was suspended from participation in the Medical Assistance Program on the basis of irregularities in his billing practice which consisted of billing for excessive office vists and drugs, and billing in his own name for services provided by resident physicians who covered his office and his associate's office during the night. In addition, it appears from the report prepared for the State Medical Advisory Committee Meeting, that after Kaplan had been suspended from participation in the Medical Assistance Program in October, 1968 because of the pending federal prosecution, he continued to own and operate his two large medical centers in the severely depressed area on the west side of Chicago. In operating these centers he employed several physicians and dentists, paid them weekly on a percentage basis, and himself collected the monies from the Department of Public Aid, although he had been suspended. These billings were submitted to the Department in the names of the individual practitioners.

On June 4, 1971, action was brought by the Department to revoke or suspend Kaplan's license because of the felony conviction. The first appearance before the Medical Committee was on July 8, 1971. Both Kaplan and his attorney (not the present one) were present. Kaplan, through his attorney, asked that the proceedings be continued since the convictions were being appealed. He indicated that if the Court of Appeals ruled against him there would be no contest. The Committee agreed to his request to continue the proceedings. Likewise, on November 18, 1971, this cause was again continued at Kaplan's request for the same reason. So, too, in March, 1972. At that time Kaplan through his attorney specifically stated 'I am asking that the matter be continued again for the reason that * * * I have stated it before * * * if this conviction is affirmed, that is the end of it, there would be no contest as to whether or not the Department wants to revoke his license or suspend it; there will be no defense.'

On September 13, 1973, the cause was finally heard. Needless to say, since Kaplan's conviction had been affirmed, he was not personally present; he was in prison. His attorney was, however, present, as was his wife who appeared as a witness for him. His attorney again asked for a continuance, this time because Kaplan, being incarcerated, could not appear. Not surprisingly, after all this time, the request was denied. It was pointed out that the plaintiff had earlier agreed that if the convictions were affirmed, there would be no defense. It is clear from the record that Kaplan's attorney was permitted to present whatever evidence he desired that might affect the Committee in the exercise of its discretion. In arguing that Kaplan's license should not be revoked, the attorney did argue that rehabilitation had been shown because Kaplan had not touched an accident case in five years, and there had been no complaint against him since the indictment. His basic argument, however, was that the license should not be revoked because perjury had been used to obtain the conviction.

The Committee found Kaplan had been convicted of a felony in the federal court and recommended that his license to practice medicine be revoked. Kaplan then moved for a rehearing before the Director. This proceeding was continued until Kaplan could be personally present. ¹ At the rehearing there was considerable discussion of the fact that under the Medical Practice Act, as amended (effective July 23, 1971), the Department could revoke a physician's license only if it determined, after investigation, that the person had not been sufficiently rehabilitated to warrant the public trust. As 'evidence of rehabilitation' Kaplan's attorney pointed out that he had been paroled in about the minimum time. Also Kaplan testified that, while he was still practicing as a doctor, he had not seen any personal injury cases since the date of his indictment. The Director indicated that he believed the issues were whether he should consider evidence of rehabilitation and whether Kaplan had, in fact, been rehabilitated; that if there was further evidence of rehabilitation it should be entered into evidence.

The Director affirmed the recommendation of the Committee, finding that substantial justice had been done. The circuit court also affirmed.

I.

Kaplan's contention that section 1005--5--5(d) of the Unified Code of Corrections (Ill.Rev.Stat.1975, ch. 38, par. 1005--5--5(d)), is applicable to prevent the suspension of his license since he completed his sentence of imprisonment is without merit. By its own term, that statute merely acts to Restore licenses which have been revoked because of a conviction; it does not act to bar their initial revocation. Thus, under the facts, the statute is clearly inapplicable to Kaplan at present. We need not, therefore, determine whether the statute was intended to be applicable to such professions as the legal and medical professions; whether, if so, the statute overrules the specific statute in the Medical Practice Act relating to the restoration of licenses; and, if so, whether such restoration is automatic, as the plaintiff seems to contend, or only after petition and hearing. We only note that a construction allowing the automatic restoration of a lawyer's or doctor's license, where his right to practice his profession was taken away because of a conviction involving moral turpitude, without the Supreme Court or Department, respectively, having notice would seem to be against public policy. II.

Plaintiff's basic contention is that the 1971 amendment of section 16(4) of the Medical Practice Act (Ill.Rev.Stat.1971, ch. 91, par. 16a(4)), allowing the Department to revoke a license for the conviction of a felony only if it determined the person had not been sufficiently rehabilitated to warrant the public trust, should have been applied and was not. The offenses were committed years before the effective date of the amendment; the conviction occurred about ten months before. The proceedings to revoke Kaplan's license began before the effective date of the act. They were only continued because the plaintiff sought the continuances. The parties have cited no cases in point and we have found none. Nevertheless, Section 4 of An Act to revise the law in relation to the construction of the statute (Ill.Rev.Stat.1975, ch. 131, par. 4), clearly provides that no new law shall repeal a former law as to any act done, any penalty, forfeiture or punishment incurred, or any right accrued Or in any way whatever to affect any such offense or act so committed or any penalty, forfeiture or punishment so incurred. (Emphasis supplied.) Were we to hold that although the proceedings were commenced before the effective date of the act and were only continued at the request of the plaintiff and for his benefit, nevertheless the Department was required to determine whether Kaplan had been rehabilitated, although if the proceedings had been completed before July 23 no such determination was necessary, we would be allowing the amendment to affect the offense committed and the penalty incurred before the amendment arose.

The plaintiff, however, contends that the amendment should be applied as it was merely meant to clarify and codify the law. The presumption, however, is that a statutory amendment is intended to change the law. (Scribner v. Sachs (1960), 18 Ill.2d 400, 161 N.E.2d 481.) While this presumption is not conclusive, and may be overcome by more persuasive considerations (Bruni v. Department of Registration and Education (1974), 59 Ill.2d 6, 319 N.E.2d 37,...