                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




  Gross v. Department of Financial & Professional Regulation, 2011 IL App (1st) 103101




Appellate Court            ROBERT C. GROSS, Plaintiff-Appellant, v. THE DEPARTMENT OF
Caption                    FINANCIAL AND PROFESSIONAL REGULATION and DANIEL E.
                           BLUTHARDT, Acting Director of the Division of Professional
                           Regulation of the Department of Financial and Professional Regulation,
                           Defendants-Appellees.



District & No.             First District, Third Division
                           Docket No. 1-10-3101
Rule 23 Order filed        September 28, 2011
Rule 23 Order
withdrawn                  November 1, 2011
Opinion filed              November 2, 2011


Held                       The Department of Financial and Professional Regulation properly placed
(Note: This syllabus       plaintiff’s license to practice medicine in “Refuse to Renew” status on the
constitutes no part of     basis of the actions of the Colorado State Board of Medical Examiners
the opinion of the court   placing plaintiff’s Colorado license permanently on inactive status,
but has been prepared      despite the fact that no hearings were held and no discipline was imposed
by the Reporter of         by a hearing panel, since placing plaintiff’s license in permanent inactive
Decisions for the          status qualified as disciplinary action against plaintiff for purposes of the
convenience of the         Illinois Medical Practice Act.
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 09-CH-24019; the
Review                     Hon. Martin S. Agran, Judge, presiding.


Judgment                   Affirmed.
Counsel on                 Law Offices of Alan Rhine, of Chicago (Alan Rhine, of counsel), for
Appeal                     appellant.

                           Lisa Madigan, Attorney General, of Chicago (Laura Wunder, Assistant
                           Attorney General, of counsel), for appellee.


Panel                      JUSTICE NEVILLE delivered the judgment of the court, with opinion.
                           Justices Murphy and Salone concurred in the judgment and opinion.



                                            OPINION
¶1          Dr. Robert Gross filed a complaint for administrative review of a decision of the Illinois
        Department of Financial and Professional Regulation (Department), which held that the
        Department would refuse to renew Dr. Gross’s license. The Department based its decision
        on a settlement reached between Dr. Gross and an inquiry panel of the Colorado State Board
        of Medical Examiners (Colorado Board). When the Colorado Board began to investigate
        allegations of misconduct brought against Dr. Gross, Dr. Gross agreed to have the Colorado
        Board place his license permanently on inactive status so that the Colorado Board would not
        formally charge him and he would not need to undergo the process of a full investigation and
        hearing. Dr. Gross argued to the Department and on administrative review that the
        Department should not discipline him based on the Colorado settlement because the
        Colorado Board never charged him with misconduct and it never imposed discipline on him.
        The trial court affirmed the Department’s decision to refuse to renew Dr. Gross’s license. Dr.
        Gross now appeals.
¶2          We find that the Department did not clearly err when it held that the agreement to place
        Dr. Gross’s license permanently on inactive status counts as disciplinary action within the
        meaning of the Illinois Medical Practice Act of 1987 (Illinois Act) (225 ILCS 60/1 et seq.
        (West 2006)). Therefore, we affirm the decisions of the trial court and the Department.

¶3                                           BACKGROUND
¶4          Dr. Gross held licenses to practice medicine in Colorado, Michigan and Illinois. Dr.
        Gross did not renew his Illinois license after it expired in 2005. In May 2006, the Colorado
        Board reviewed seven of Dr. Gross’s cases and referred the matter to the state Attorney
        General for the initiation of disciplinary proceedings against Dr. Gross. Dr. Gross reached
        an agreement with the Colorado Board in August 2006. The agreed order provides:
                “4. It is the intent of the parties and the purpose of this *** Order *** to provide for
            a settlement of all matters set forth [in the allegations] *** without the necessity of
            holding a formal disciplinary hearing. ***
                ***


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            6. The Panel has reviewed seven of Respondent’s surgical cases and has found that
        Respondent failed to meet generally accepted standards of medical practice with regard
        to several cases. Respondent does not admit and specifically denies all allegations of
        unprofessional conduct. In order to resolve the differences between the parties and avoid
        the expense and uncertainty of litigation, the parties have agreed to the terms of this
        Order.
            7. The parties specifically agree that the terms of this Order are authorized by §§ 12-
        36-117(1)(p) and 12-36-118(5)(g)(III), C.R.S. [Colorado Revised Statutes].

                          PERMANENT LICENSE INACTIVATION
             8. Commencing on the effective date of this Order, Respondent’s license will be
         placed on inactive status.
             9. Following inactivation of his license, Respondent shall not perform any act
         requiring a license issued by the Board.
             10. Respondent agrees that the inactivation of his license shall be permanent and
         Respondent shall not apply to reactivate his license at any time in the future.
                                               ***
             14. This Order and all its terms shall have the same force and effect as an order
         entered after a formal disciplinary hearing pursuant to § 12-36-118(5)(g)(III), C.R.S.
         except that it may not be appealed. ***
                                               ***
             18. *** [T]his Order shall be reported [to] the Federation of State Medical Boards,
         the National Practitioner Data Bank/Healthcare Integrity and Protection Data Bank ***
         and as otherwise required by law.”
¶5       In March 2007, the Department notified Dr. Gross that it intended to place his license in
     “Refuse to Renew” status. Dr. Gross requested a hearing on the allegations raised in support
     of the proposal to refuse to renew his license.
¶6       At the hearing, the Department relied primarily on the agreed order entered in Colorado.
     The Department showed the administrative law judge (ALJ) the Colorado Medical Practice
     Act (Colorado Act) (Colo. Rev. Stat. § 12-36-101 et seq. (2007)). The parties specified that
     two sections of the Colorado Act authorized the Colorado order. Those sections provide:
         “ ‘Unprofessional conduct’ as used in this article means:
                                               ***
             (p) Any act or omission which fails to meet generally accepted standards of medical
         practice[.]” Colo. Rev. Stat. § 12-36-117(1)(p) (2007).
             “If the hearings panel finds the charges proven and orders that discipline be imposed,
             it shall also determine the extent of such discipline, which shall be in the form of a
             letter of admonition, suspension for a definite or indefinite period, or revocation of
             license to practice. In lieu of a suspension, the hearings panel may impose a fine
             ***.” Colo. Rev. Stat. § 12-36-118(5)(g)(III) (2007).


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¶7         Dr. Gross testified that he had worked at a hospital in Colorado, and he disagreed with
       the executive committee of the hospital about the way the committee ran the hospital. That
       disagreement precipitated the allegations of unprofessional conduct. When the Colorado
       Board informed him about the allegations, he elected to negotiate. The Colorado Board
       agreed not to formally charge Dr. Gross with violating the Colorado Act, and in exchange
       Dr. Gross agreed to have his Colorado license placed permanently on inactive status. He
       explained that he and his wife had decided to move to Michigan, so he no longer needed the
       Colorado license. He informed the Michigan licensing agency of the Colorado order, and the
       Michigan licensing agency allowed him to continue practicing medicine in Michigan.
¶8         In April 2007, the Colorado Board sent Dr. Gross a letter telling him what he needed to
       do to retain his inactive license. The Colorado Board did not offer to make the license active.
       Dr. Gross admitted that, according to the Colorado order, the Colorado Board would report
       the agreement with Dr. Gross to the National Practitioner Data Bank.
¶9         The ALJ held that the Colorado Board had taken disciplinary action against Dr. Gross’s
       license to practice in Colorado. According to section 22(A)(12) of the Illinois Act:
           “The Department may revoke, suspend, place on probationary status, refuse to renew, or
           take any other disciplinary action as the Department may deem proper with regard to the
           license *** of any person issued under this Act to practice medicine *** upon any of the
           following grounds:
                                                ***
               (12) Disciplinary action of another state or jurisdiction against a license *** to
           practice as a medical doctor[.]” 225 ILCS 60/22(A)(12) (West 2006).
¶ 10       The ALJ held that the section applied, and the Colorado Board’s order justified the
       Department’s decision to place Dr. Gross’s license in “Refuse to Renew” status. The
       Department’s medical disciplinary board adopted the ALJ’s findings and recommendations.
       The Director denied Dr. Gross’s motion for rehearing. Dr. Gross sought administrative
       review. The trial court denied Dr. Gross relief. Dr. Gross now appeals.

¶ 11                                        ANALYSIS
¶ 12                                     Standard of Review
¶ 13        The parties do not disagree about questions of fact and they agree about what statutes we
       must interpret, but they disagree about the application of the law to the facts. The parties
       agree that we review the Department’s decision, which applied section 22(A)(12) of the
       Illinois Act to the undisputed facts, for clear error. See AFM Messenger Service, Inc. v.
       Department of Employment Security, 198 Ill. 2d 380, 392 (2001).

¶ 14                                   Disciplinary Action
¶ 15       Dr. Gross contends that the Colorado Board did not take “disciplinary action,” within the
       meaning of section 22(A)(12) of the Illinois Act, because the Colorado Act limits the kinds
       of discipline the Colorado Board may impose. The Colorado Act specifies that if a hearings
       panel finds charges of unprofessional conduct proven, the hearings panel may order the

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       imposition of discipline, “which shall be in the form of a letter of admonition, suspension
       for a definite or indefinite period, or revocation of license to practice. In lieu of a suspension,
       the hearings panel may impose a fine.” Colo. Rev. Stat. § 12-36-118(5)(g)(III) (2007). An
       inquiry panel in Colorado investigated the allegations against Dr. Gross, but the panel filed
       no formal charges, and no hearings panel ever addressed the allegations. See Colo. Rev. Stat.
       §§ 12-36-118(1)(b), (1)(c) (2007). The Colorado Board agreed to place Dr. Gross’s license
       on inactive status permanently, and the Colorado Act does not list such action as a form of
       discipline a hearings panel may impose.
¶ 16       We agree with Dr. Gross that the Colorado Act did not authorize any hearings panel to
       impose discipline on Dr. Gross without holding a hearing on the charges. However, we find
       that the inquiry panel could agree to take, and Dr. Gross could agree to accept, the action of
       placing the license in permanent inactive status. See Colo. Rev. Stat. § 12-36-118(5)(g)(III)
       (2007). We must decide whether placing Dr. Gross’s license in permanent inactive status
       counts as disciplinary action. The finding that the action does not count as discipline imposed
       by a hearings panel does not resolve the issue of whether the action qualifies as a disciplinary
       action within the meaning of the Illinois Act.
¶ 17       The Illinois Act defines “disciplinary action” as “revocation, suspension, probation,
       supervision, practice modification, reprimand, required education, fines or any other action
       taken by the Department against a person holding a license.” 225 ILCS 60/2(4) (West 2006).
       We must decide whether placing Dr. Gross’s license on permanent inactive status qualifies
       as “practice modification *** or any other action taken by the Department against a person
       holding a license.” 225 ILCS 60/2(4) (West 2006). Three facts persuade us that the Colorado
       action here qualifies as a disciplinary action taken against Dr. Gross.
¶ 18       First, by placing Dr. Gross’s license on inactive status, the Colorado Board has modified
       Dr. Gross’s practice: it has restricted him from practicing in Colorado, albeit with his
       acceptance of the restriction. The Colorado Board’s action therefore qualifies as “practice
       modification.”
¶ 19       Second, the Colorado Board would regard the action as disciplinary if another state’s
       board had taken similar steps against a doctor. The Colorado Act specifies:
           “The discipline of a license to practice medicine *** in another state *** shall be deemed
           to be unprofessional conduct. For purposes of this subsection ***, ‘discipline’ includes
           any sanction required to be reported pursuant to 45 CFR 60.8. This subsection *** shall
           apply only to discipline that is based upon an act or omission in such other state *** that
           is defined substantially the same as unprofessional conduct pursuant to *** this section.”
           Colo. Rev. Stat. § 12-36-117(1.5)(b)(2) (2007).
       The parties agreed that Colorado would report the action taken with respect to Dr. Gross’s
       license to the National Practitioner Data Bank. The Code of Federal Regulations provides:
           “Each Board of Medical Examiners must report to the Data Bank any action based on
           reasons relating to a physician’s *** professional competence or professional conduct–
               (1) Which revokes or suspends (or otherwise restricts) a physician’s *** license[.]”
           45 C.F.R. § 60.8(a)(1) (2007).
       The agreement to report the action to the National Practitioner Data Bank, as a restriction on

                                                  -5-
       Dr. Gross’s license which the Colorado Board must report pursuant to 45 CFR § 60.8, makes
       the action count as discipline for the Colorado Act.
¶ 20       Finally, the parties expressly agreed that the Colorado Act, particularly in sections 12-36-
       117(1)(p) and 12-36-118(5)(g)(III), authorized the agreement, and that the agreement had the
       same force and effect as an order entered after a formal disciplinary hearing under section
       12-36-118(5)(g)(III). The cited sections govern discipline for unprofessional conduct. Thus,
       the parties agreed that the order had the force and effect of an order entered following a
       hearing concerning discipline for unprofessional conduct.
¶ 21       Dr. Gross’s agreement with the Colorado Board has some characteristics in common with
       a plea of nolo contendere. When a party pleads nolo contendere to a charge, that party does
       not admit that he committed the charged misconduct, but he accepts some form of the
       consequences just as though he had committed the charged misconduct. See North Carolina
       v. Alford, 400 U.S. 25, 35-36 (1970). Here, Dr. Gross did not admit wrongdoing, but he
       accepted, as a consequence of the charges, a restriction on his license that precluded him
       from actively practicing in Colorado.
¶ 22       The Illinois Act provides that the Department may discipline a physician based on “the
       entry of a *** nolo contendere plea to a felony charge” in any jurisdiction. 225 ILCS
       60/22(A)(3) (West 2008). While this section does not directly apply, we find that it indicates
       that the Department will treat a failure to contest charges in other states as grounds for
       disciplining a physician in Illinois.

¶ 23                                     CONCLUSION
¶ 24       Although we find that the Colorado Board did not impose discipline on Dr. Gross after
       a hearing, we hold that the Department did not commit clear error when it concluded that the
       Colorado Board had taken “disciplinary action” against Dr. Gross’s license. The
       Department’s finding justified the decision to place Dr. Gross’s Illinois license in “Refuse
       to Renew” status. Accordingly, we affirm the judgment of the trial court and the Department.

¶ 25      Affirmed.




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