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

Decision Date04 November 2014
Docket NumberNo. 1–12–3319.,1–12–3319.
PartiesMahesh 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.
CourtUnited States Appellate Court of Illinois

Goldberg Law Group, LLC, of Chicago (Michael K. Goldberg, Robert A. Bauerschmidt, and Jenna E. Milaeger, of counsel), for appellant.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Nadine J. Wichern, Assistant Attorney General, of counsel), for appellees.

OPINION

Justice PIERCE

delivered the judgment of the court, with opinion.

¶ 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 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 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 had with L.K., L.K.'s primary care physician and the police.

¶ 11 Dr. Dane Michael Chetkovich, a board-certified neurologist, gave expert testimony for the Department. Dr. Chetkovich testified that typically, neither a breast nor a pelvic examination would be part of a neurological exam. Rather, if a breast or pelvic examination was indicated, a neurologist would refer the patient to a gynecologist or general practitioner. In the rare case where a neurologist would be required to conduct a breast or pelvic exam

, the doctor would document the reason for its necessity and report the results for diagnostic purposes. Dr. Chetkovich opined that based on a review of L.K.'s medical records, there was no reason for Parikh to perform a breast or pelvic exam. In addition, Dr. Chetkovich opined that the exams described by L.K. would be an inappropriate and unprofessional touching of L.K.'s breast and pelvic area and that if the allegations were true, Parikh had failed to provide ethical care and treatment to L.K.

¶ 12 Parikh testified as an adverse witness and on his own behalf. He stated that he was L.K.'s neurologist between December 2008 and August 2009. He maintained throughout his testimony that he did not perform breast or vaginal examinations

on L.K. He further maintained that either Tina, Brandon or one of his office assistants was in the examination room for part of L.K.'s visits. Parikh stated that his assistant Cynthia Monroe was present during the August 24, 2009, visit.

¶ 13 Dr. Parikh also called two of his office assistants to testify on his behalf. Monroe testified the examination room has blinds which are generally kept open. From where she sits in the office, Monroe can see into the examination room even when the door is closed, but cannot see past the corner of the examination table. She is always allowed to enter the examination room after knocking and does not wait for permission to enter. Dr. Parikh's other office assistant, Karen Hoff, gave substantially similar testimony on these points.

¶ 14 After reviewing the testimony and documentary evidence, the ALJ concluded that the Department failed to prove its charges by clear and convincing evidence and recommended that no action be taken against Parikh. The ALJ found that L.K. was confused about some points and demonstrated a naivety unusual for a woman of her age and educational background. The ALJ also found that her testimony was uncorroborated, except for Brandon's testimony regarding the one visit. The ALJ questioned Brandon's reliability given that he testified that he saw Parikh put his hand down L.K.'s shirt but then stated that Parikh's body blocked his view of the examination. The ALJ also found that Parikh testified credibly and calmly and his testimony was consistent with the medical records.

¶ 15 On December 29, 2011, the Board adopted the ALJ's findings of fact and conclusions of law in its recommendations to the Director. The Department then filed a motion asking the Director to take action contrary to the Board's recommendation. The Department argued that it proved the charges by clear and convincing evidence. The Department urged the Director to find that Parikh had inappropriately touched L.K. based on testimony presented and the conclusions that could be drawn therefrom, and find Parikh in violation of the Act.

¶ 16 On March 26, 2012, contrary to the Board's and ALJ's recommendation, the Director issued an order determining the evidence was sufficient to prove the...

To continue reading

Request your trial
6 cases
  • Nwaokocha v. Ill. Dep't of Fin. & Prof'l Regulation
    • United States
    • United States Appellate Court of Illinois
    • March 15, 2018
    ...v. Division of Professional Regulation of the Department of Financial & Professional Regulation , 2014 IL App (1st) 123319, ¶ 19, 387 Ill.Dec. 197, 22 N.E.3d 79. The standard of review depends on the question presented; this court reviews factual questions under the manifest weight of the e......
  • Danigeles v. Ill. Dep't of Fin. & Prof'l Regulation
    • United States
    • United States Appellate Court of Illinois
    • September 25, 2015
    ...of Professional Regulation of the Department of Financial & Professional Regulation, 2014 IL App (1st) 123319, ¶ 19, 387 Ill.Dec. 197, 22 N.E.3d 79. The standard of review depends on the question presented; this court reviews factual questions under the manifest weight of the evidence stand......
  • Improta v. White
    • United States
    • United States Appellate Court of Illinois
    • December 3, 2021
    ...v. Division of Professional Regulation of the Department of Financial & Professional Regulation , 2014 IL App (1st) 123319, ¶ 19, 387 Ill.Dec. 197, 22 N.E.3d 79. Questions of fact are reviewed under the manifest weight of the evidence standard. Provena , 236 Ill. 2d at 386-87, 339 Ill.Dec. ......
  • Senno v. Dep't of Healthcare & Family Servs.
    • United States
    • United States Appellate Court of Illinois
    • October 20, 2015
    ...v. Division of Professional Regulation of the Department of Financial & Professional Regulation, 2014 IL App (1st) 123319, ¶ 19, 387 Ill.Dec. 197, 22 N.E.3d 79 (citing Village Discount Outlet v. Department of Employment Security, 384 Ill.App.3d 522, 525, 323 Ill.Dec. 469, 893 N.E.2d 943 (20......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT