Smith v. Department of Professional Regulation

• Decision Date: 15 August 1990
• Docket Number: No. 1-89-1926,1-89-1926
• Citation: 559 N.E.2d 884,202 Ill.App.3d 279
• Parties: , 147 Ill.Dec. 544 Laurence N. SMITH, Plaintiff-Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION of the State of Illinois, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 884

559 N.E.2d 884

202 Ill.App.3d 279, 147 Ill.Dec. 544

Laurence N. SMITH, Plaintiff-Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION of the State of Illinois, Defendant-Appellee.

No. 1-89-1926.

Appellate Court of Illinois,

First District, Third Division.

Aug. 15, 1990.

Fioretti & Des Jardins, Ltd., Chicago (Robert W. Fioretti, of counsel), for plaintiff-appellant.

Neil F. Hartigan, Atty. Gen., Robert J. Ruiz, Sol. Gen., Chicago (Ralanda Webb, First Asst. Atty. Gen., of counsel), for defendant-appellee.

Justice FREEMAN delivered the opinion of the court:

Plaintiff, Laurence N. Smith, appeals the affirmance of the administrative decision of defendant, Illinois Department of Professional Regulation, to suspend him from the practice of chiropractic medicine for an indefinite period.

Defendant's amended administrative complaint against plaintiff charged him with several violations of section 16 of the Medical Practice Act (Act) (Ill.Rev.Stat.1983, ch. 111, par. 4401 et seq.). Specifically, it charged that, in the course of treating four different patients in 1983, plaintiff engaged in conduct which constituted: (a) dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public; (b) willfully making and filing false records and reports in his practice; and (c) gross, willful and continued overcharging for professional services, including but not limited to the filing of false statements for collection of fees for services not rendered. Ill.Rev.Stat.1983, ch. 111, par. 4433(5), (21), (24).

After an evidentiary hearing, the administrative law judge (ALJ) who conducted the hearing issued findings of fact, conclusions of law and a recommendation that plaintiff's license be suspended. Subsequently, defendant's Medical Disciplinary Board (Board) found that, based upon the evidence, plaintiff knew, at the time of their submission, that the bills he submitted to the insurers of the four patients whose treatment formed the basis of the complaint against him contained charges for services not rendered. Consequently, it recommended, and defendant's director ordered, that Plaintiff's license be suspended for an indefinite period.

I.

On appeal, plaintiff first contends that defendant's decision was against the manifest weight of the evidence. Specifically, plaintiff challenges four findings of fact by the ALJ which, along with his other factual findings and conclusions of law, were adopted by the Board: (a) that he engaged in a "pattern of bill padding"; (b) that the four patients whose treatment was at issue were more credible than plaintiff's records on the issues of what services defendant rendered to them and when he rendered them; (c) that plaintiff performed medically unnecessary procedures on the patients; and (d) that plaintiff submitted inaccurate and misleading bills to the patients' insurers.

A.

In challenging the ALJ's finding that a "pattern of bill padding" was evident from plaintiff's patient records and the testimony, plaintiff notes or argues that: (1) in treating the four patients whose treatment was at issue pursuant to his practice of not requesting co-payments from them, he merely accepted what their insurers paid him, even if that amount was less than the entire bill; (2) Dr. Guzzo, defendant's expert, stated that the practice of not receiving co-payments from patients with insurance and merely accepting what their insurers paid on their chiropractic bills did not constitute fraud and that the market determined the propriety of charges for chiropractic services; (3) "the uncontroverted testimony" was that he charged all of his patients the same fees, based solely on the services rendered, whether or not they participated in his "no co-payments" program; (4) there was simply no record evidence to support a conclusion that his "no co-payments" practice was improper or fraudulent; and (5) there was insufficient evidence as to what the proper fees for the four patients involved should have been so as to allow a finding that the fees charged to their insurers were grossly excessive.

We believe that the foregoing evidence noted and arguments made by plaintiff relate to "bill padding" in the sense of charging higher than customary fees for services rendered. However, in so construing the term "bill padding" as used by the ALJ and, implicitly, the term "overcharging" as used in defendant's amended complaint, plaintiff has ignored that the overcharging which the complaint alleged against him specifically included overcharging in the sense of charging for services not actually rendered. As such, the fact that the evidence may have been insufficient to support a finding that plaintiff had engaged in overcharging by charging higher than customary fees for his services is of no avail to plaintiff in demonstrating that he had not overcharged in the specific sense alleged in the amended complaint.

For this same reason, we find unavailing plaintiff's further argument that the ALJ's finding that his charges "were too high" did not satisfy the statutory requirement of a finding that they constituted gross, willful and continuous overcharging. This argument too reveals that plaintiff has myopically focused upon the amount of the fees he charged for discrete services rather than his alleged charging of fees for services not rendered. Given the abundant record evidence that plaintiff repeatedly charged for services not rendered and the ALJ's references to that evidence in his factual findings, the finding that plaintiff's charges were "too high" was merely incidental to the findings which did satisfy the statutory requirement of gross, willful and continuous overcharging. In this regard, we believe that "overcharging" as used in the Medical Practices Act, like the phrase "bill padding," may mean charging too much for services rendered and/or charging for services not actually rendered. It is clear from the allegations of defendant's amended complaint that it was "overcharging" in the latter sense which was mainly at issue in this case. The evidence adduced by defendant abundantly proved those allegations.

B.

Regarding the second challenged finding of fact, plaintiff argues, essentially, that his business records were entitled to greater weight than the testimony of the four patients, whose treatment was at issue, with respect to the issue of what services he actually rendered to them. Specifically, with respect to the conflict between his records and the testimony of one of the patients, Thomas Cihlar, as to the dates of Cihlar's visits to plaintiff, plaintiff asserts that Cihlar's testimony was not credible given his uncertainty about the months in 1983 in which he was treated by plaintiff. We cannot agree.

It is for the finder of fact to evaluate all evidence, including the testimony and medical records produced; to judge the credibility of witnesses; to resolve conflicts in medical evidence; and to draw reasonable inferences and conclusions from the facts. (See Millis v. Industrial Comm. (1982), 89 Ill.2d 444, 60 Ill.Dec. 620, 433 N.E.2d 662.) Moreover, there is always a possibility that business records are in error, and they deserve no special presumption of credibility as compared to the opposing testimony of a witness. (Nowakowski v. Hoppe Tire Co. (1976), 39 Ill.App.3d 155, 158, 349 N.E.2d 578.) In this latter regard, the fact that plaintiff's records were positively shown to contain material errors and omissions regarding the treatment and services rendered the four patients provided even more reason to find them less credible than the testimony of those patients. The ALJ's finding of the testimony of the four patients as more credible than plaintiff's business records was not against the manifest weight of the evidence.

In the same vein, plaintiff further asserts that the ALJ erred in denying his request for subpoenas for records of other physicians who had treated the four patients. Plaintiff intended to use the records of the other physicians to impeach the four patients' recollection of the services which he rendered to them. This argument is unavailing to plaintiff. Preliminarily, we note that plaintiff fails to cite any authority whatsoever to support his right to such subpoenas. As such, we may consider this argument waived. (In re Marriage of Talmadge (1989), 179 Ill.App.3d 806, 128 Ill.Dec. 751, 534 N.E.2d 1356.) Equally as important, however, is plaintiff's failure to address his right to such records in the face of the physician-patient privilege which, given his asserted intent to have questioned the four patients on "the specifics of medical care" rendered by other practitioners, might very well apply to such records. The denial of the requested subpoenas was not error. C.

With respect to the third finding of fact which plaintiff challenges, he argues that the evidence did not reveal that he violated the Act by performing medically unnecessary procedures. Plaintiff grounds this argument on the inconsistency between the ALJ's lengthy discussion, in his findings of fact, of the allegedly unnecessary x-rays and blood tests performed on some of the four patients, on one hand, and the ALJ's conclusion, on the other, that this case did not involve plaintiff's failure to use or apply his skills in compliance with the standards of his profession. As further evidence of this inconsistency, plaintiff also cites the ALJ's statement at the conclusion of the evidentiary hearing that the issue of unnecessary x-rays was the only substantive issue concerning plaintiff's professional practice, "meaning whether he was competently performing his duties as a treating practitioner."

We find this argument unavailing. Plaintiff's argument, in essence, seems to be that, in order to conclude that he violated the Act by performing unnecessary x-rays and other tests, the ALJ also had to conclude that the performance of such procedures evidenced...