                                    2016 IL App (1st) 143908

                                          No. 1-14-3908


                                                                             FIFTH DIVISION
                                                                             May 13, 2016



                         IN THE APPELLATE COURT OF ILLINOIS
                               FIRST JUDICIAL DISTRICT


GOWHAR KHAN, M.D.,                                           )       Appeal from the
                                                             )       Circuit Court of
       Plaintiff-Appellant,                                  )       Cook County.
                                                             )
v.                                                           )       No. 14 CH 3027
                                                             )
THE DEPARTMENT OF HEALTHCARE AND                             )
FAMILY SERVICES and JULIE HAMOS, Director                    )
of The Department of Healthcare and Family Services,         )       The Honorable
                                                             )       Kathleen Pantle,
       Defendants-Appellees.                                 )       Judge Presiding.


       JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
       Presiding Justice Reyes and Justice Gordon concurred in the judgment and opinion.

                                          OPINION

&1     Plaintiff, Gowhar Khan, M.D., appeals the order of the circuit court affirming the

decision of defendant, the Illinois Department of Healthcare and Family Services (Healthcare

Department), finding plaintiff provided medical care in the Illinois Medical Assistance Program

(Medicaid) that was of grossly inferior quality, placed recipients at risk of harm, and was in

excess of patient needs. Based on defendant's findings, plaintiff was suspended from the

Medicaid program for 12 months. Plaintiff contends: (1) defendant's witness was not qualified to

provide expert medical testimony: (2) the expert witness' testimony was speculative;
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(3) defendant failed to demonstrate harm as required by the statute; and (4) the administrative

law judge (ALJ) made multiple factual errors. Based on the following, we affirm.

&2                                              FACTS

&3      Plaintiff is a licensed physician in Illinois, specializing in rheumatology. He was enrolled

as a Medicaid provider during the relevant time period. Defendant regularly conducts audits of

the Medicaid program providers through a medical quality review committee (quality

committee) to assure quality of care. The quality committee consists of three physicians. After

completing a review of plaintiff's medical records for 15 Medicaid patients from 2008 to 2010,

defendant notified plaintiff of its intent to terminate his eligibility to participate as a provider in

the Medicaid program. Specifically, defendant alleged that plaintiff violated section 12-4.25 of

the Illinois Public Aid Code (Code) (305 ILCS 5/12-4.25 (West 2012)) by providing care that

was of grossly inferior quality, put patients at risk of harm, and exceeded patients' needs where

plaintiff excessively prescribed narcotics, inadequately managed patients' diabetes, failed to

provide preventative care, and failed to follow up on issues identified in previous office visits.

Plaintiff requested a hearing.

&4      An administrative hearing convened in September 2012 before the ALJ and concluded in

December 2012. Two witnesses testified: plaintiff testified on his own behalf and Dr. Jesse Park

testified, over plaintiff's objection, on behalf of defendant. Dr. Park, a licensed physician in

Illinois, was a member of the quality committee that recommended plaintiff's termination from

the Medicaid program. Dr. Park practices and is board-certified in internal medicine. Despite

plaintiff's objection, the ALJ found Dr. Park qualified to provide expert testimony. Dr. Park

testified regarding the general standards of care and specifically addressed plaintiff's failures to

meet those standards with regard to the patients at issue. Dr. Park testified that, based on his



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review of plaintiff's patient records, plaintiff provided grossly inferior patient care (count I),

placed patients at risk of harm (count II), and furnished medical goods or services in excess of

patient need (count III). With regard to counts I and II, the bases for the findings were that

plaintiff prescribed an excess of narcotics, inadequately managed and treated diabetes, failed to

provide preventative care, and failed to follow up on issues identified in previous office visits.

For count III, the basis for the finding was plaintiff's prescription of excess narcotics.

&5     After the close of the administrative hearing, the ALJ prepared a 51-page report dated

May 14, 2013, concluding that the allegations against plaintiff had been proven by a

preponderance of the evidence. In doing so, the ALJ relied on the documentary evidence and

expressly found Dr. Park to be a persuasive and credible witness. The ALJ determined that,

although plaintiff's actions provided a sufficient basis for termination, a 12-month suspension

would be a sufficient remedy. Plaintiff then requested review of the ALJ's decision by the

director of the Healthcare Department. In a letter dated January 31, 2014, the director of the

Healthcare Department adopted the recommended decision of the ALJ as the Healthcare

Department's final administrative decision.

&6     Plaintiff subsequently sought administrative review of that decision in the circuit court.

The circuit court affirmed the Healthcare Department's decision. This appeal followed.

&7                                           ANALYSIS

&8     As an initial matter, we set out the applicable standards of review. This court reviews the

final decision of the ALJ under the Illinois Administrative Review Law (65 ILCS 5/1-2.1-7

(West 2012); 735 ILCS 5/3-101 et seq. (West 2012)). Judicial review of an administrative

decision extends to all questions of law and fact presented by the entire record. 735 ILCS 5/3-

110 (West 2012). The findings and conclusions of the administrative agency are considered



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prima facie true and correct. Id. That said, the standard of review depends on the question

presented. Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497, 532 (2006).

Determinations involving questions of fact will not be reversed unless they are against the

manifest weight of the evidence. Id. "An administrative agency decision is against the manifest

weight of the evidence only if the opposite conclusion is clearly evident." Abrahamson v.

Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88 (1992). In contrast,

determinations of law are reviewed de novo. Marconi, 225 Ill. 2d at 532. Lastly, mixed

questions of law and fact are reviewed under the clearly erroneous standard. Id. No matter the

standard of review, the plaintiff seeking administrative review bears the burden of proof. Id. at

532-33. This court reviews the decision of the administrative agency and not that of the circuit

court. Id. at 531.

&9                                     I. Expert Qualifications

& 10    Plaintiff first contends that the Healthcare Department's witness, Dr. Park, was

unqualified to provide expert medical testimony in this case. More specifically, plaintiff argues

that Dr. Park was not qualified to testify as an expert because he did not practice rheumatology

and did not treat Medicaid patients. According to plaintiff, Dr. Park was unqualified where the

ALJ found that Park merely "dealt with" rheumatology complaints. Plaintiff maintained having

"dealt" with rheumatologic patients did not equate to treating such patients, especially where Dr.

Park referred his patients to specialists.

& 11    In Purtill v. Hess, 111 Ill. 2d 229 (1986), the supreme court articulated the requirements

necessary to demonstrate a physician's qualifications and competency to testify as an expert.

More specifically, the supreme court provides that: (1) the physician must be a licensed member

of the school of medicine about which he proposes to testify; and (2) "the expert witness must



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show that he is familiar with the methods, procedures, and treatments ordinarily observed by

other physicians, in either the defendant physician's community or a similar community." Id. at

243. With regard to the first element, "[w]hether the expert is qualified to testify is not

dependent on whether he is a member of the same specialty or subspecialty as the defendant but,

rather, whether the allegations of negligence concern matters within his knowledge and

observation." Jones v. O'Young, 154 Ill. 2d 39, 43 (1992). With regard to the second element, a

physician is required to possess and apply that degree of knowledge, skill, and care that a

reasonably well-qualified physician in the same or similar community would bring to a similar

case under similar circumstances. Purtill, 111 Ill. 2d at 242 (citing Restatement (Second) of

Torts § 299A cmt. e (1965)). Once the foundational requirements have been met, it is within the

trial court's discretion to determine whether a physician is qualified and competent to state his

opinion as an expert regarding the standard of care. Id. at 243.

& 12   In this case, Dr. Park is board-certified in internal medicine, while plaintiff is trained in

internal medicine with a subspecialty in rheumatology. Plaintiff is not board-certified in internal

medicine. His subspecialty is based on a two-year fellowship in rheumatology. Dr. Park

testified that his medical education included training in rheumatology. He further discussed his

treatment of patients with rheumatology, diabetes, heart disease, pain management, and

preventative care. Dr. Park testified that he treated these "generalized conditions" on a "regular

basis," dealing with rheumatologic patients "all the time." According to Dr. Park, he frequently

dealt with rheumatologic issues as he had a large population of geriatric patients. He explained:

       "when you say rheumatologic, you're defining a specialty, but all internists are capable

       and are trained to deal with arthritic rheumatologic conditions. We were originally




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        hospital-based and this is considered as part of our core curriculum. Now, we are not

        subspecialized, but rheumatology is considered to be in our realm of ordinary expertise."

In addition, Dr. Park testified that:

                "What I'm saying is that the standard I tried to apply to Dr. Khan is that he's a

        community physician, I'm a community physician, I tried to look at what my peers would

        do, what their current practice management is and apply the community standard to his

        care, if not the written defined standard so my criteria, my standard was based on how I

        practice and how my peers in the community feel that we should practice in terms of

        definition and immunization. It is not based on a certain written—because everybody is

        different."

& 13    We conclude that Dr. Park properly was allowed to testify as an expert based on his

qualifications and competency. Dr. Park's testimony demonstrated that he did not merely deal

with rheumatologic complaints, as argued by plaintiff. The use of the word "dealt" in the record

was not indicative of lack of treatment. Rather, a reading of the testimony in context clearly

demonstrates that Dr. Park regularly treated rheumatologic patients. Moreover, the fact that Park

referred patients to specialists when their cases were complicated and "beyond our scope of care"

does not negate his ability to testify regarding the standard of care of the patients in question.

& 14    Furthermore, Park testified regarding the general standard of care required for all

physicians treating similar patients. Dr. Park's lack of participation in the Medicaid program did

not prevent him from testifying as an expert on patient care, even for Medicaid patients. The

supreme court has recognized that "today [there are] relatively uniform standards for the

education and the licensing of physicians," such that physicians in rural areas possess a degree of

competency similar to that of physicians in urban areas. Id. at 246 (recognizing the limited



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utility of the "similar locality" rule where there are certain uniform standards applicable to a

given situation regardless of locality). Plaintiff's argument regarding the limitations of the

Medicaid program in terms of payment for specific services did not affect the level of care to

which those patients were entitled. Nor did Dr. Park's testimony regarding the lack of written

uniform standards demonstrate an inability to testify to the standard of care appropriate for

plaintiff's patients. Overall, Dr. Park demonstrated he was competent to testify regarding the

knowledge, skill, and care that a reasonably well-qualified physician in the same or similar

community would bring to a similar case under similar circumstances.

& 15   In sum, we find that the foundational requirements were satisfied for Dr. Park to testify as

an expert. Any additional arguments regarding Dr. Park's limitations as a physician regularly

practicing rheumatology in a Medicaid setting concerned the weight to be accorded his

testimony. See Gill v. Foster, 157 Ill. 2d 304, 316-17 (1993). We, therefore, conclude that the

ALJ did not abuse her discretion in admitting Dr. Park's expert testimony.

& 16                                 II. Insufficient Testimony

& 17   Plaintiff next contends that Dr. Park's testimony was insufficient because it was based on

guesses and speculation. More specifically, plaintiff argues that, since Dr. Park had difficulty

reading plaintiff's patient records, Dr. Park's opinions were based on incomplete information and

speculation. Plaintiff additionally contends that medical care can be provided without

documentation.

& 18   Plaintiff's patient records were replete with absences of documentation regarding patient

care, preventative care, testing, and prescription details, including the prescribing of narcotics.

Plaintiff testified that his record keeping was systematic, in that the absence of documentation

meant something to him, but he admitted that his patient charts were incomplete. Plaintiff



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blamed the gaps in his records due to the circumstances of his care, e.g., if he authorized a

prescription while driving. Plaintiff, however, has not cited any authority to support his

argument that documentation was not required. Instead, section 5-5 of the Code mandates that

"[a]ll dispensers of medical services shall be required to maintain and retain business and

professional records sufficient to fully and accurately document the nature, scope, details and

receipt of the health care provided to persons eligible for medical assistance under this Code, in

accordance with regulations promulgated by the Illinois Department." 305 ILCS 5/5-5 (West

2012). We recognize that the Healthcare Department did not expressly charge plaintiff with a

violation of section 5-5 of the Code; however, we find the statute directly contradicts plaintiff's

argument and his practices.

& 19   Dr. Park testified that patient charts should have a problem list to assist in keeping track

of cancer screening guidelines and vaccinations. In addition, Dr. Park stated that every patient

chart should have a page listing problems, medications, allergies, and dates. Instead, with regard

to plaintiff, the testimony demonstrated that there was no record of test results ordered for

patients needing MRIs or blood tests for diabetics, no record of follow-ups on referrals to

specialists, no record of preventative care administered, including vaccinations, cancer

screenings, or bone density scans, no record of follow-up care following diagnoses, and no

record of prescribing narcotics, dosage information, or refill requests. Dr. Park opined, and the

ALJ agreed, that "no documentation" meant nothing was provided by plaintiff. The challenged

testimony repeatedly involved Dr. Park's attempt to decipher plaintiff's incomplete and

unreadable patient charts. We find that plaintiff's failure to comply with the documentation

requirements for physicians in general, and the Medicaid program in particular, does not make

Dr. Park's testimony speculative. Instead, plaintiff's inadequate records allowed Dr. Park and the



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Healthcare Department to infer that plaintiff's care was of grossly inferior quality, placed the

patients at risk of harm, and was in excess of their needs.

& 20     In response to plaintiff's argument regarding Dr. Park's mistaken classification 1 of the

drug Tramadol prescribed by plaintiff, the ALJ expressly stated that she would not consider the

particular drug when determining whether plaintiff violated the Code. The testimony, therefore,

was not prejudicial. Moreover, whether Dr. Park was correct in classifying the subject drug as a

narcotic went to the weight of his testimony, not whether it was speculative.

& 21     In sum, we conclude that the ALJ's findings were not clearly erroneous. See Marconi,

225 Ill. 2d at 532. "If the record contains evidence to support the agency's decision, it should be

affirmed." Abrahamson, 153 Ill. 2d at 88-89. Simply stated, the Healthcare Department's

decision was supported by the evidence.

& 22                                            III. Showing Harm

& 23     Plaintiff additionally contends the Healthcare Department impermissibly expanded the

scope of section 12-4.25(A)(e)(2) of the Code by broadening the statutory language from

harmful to risk of harm.

& 24     Section 12-4.25(A)(e)(2) of the Code provides that a vendor may be denied, suspended,

or terminated from eligibility in the Medicaid program if the vendor is found to have furnished

goods or services to a recipient which are harmful. 305 ILCS 5/12-4.25(A)(e)(2) (West 2012).

In the ALJ's report, as adopted by the Healthcare Department, plaintiff was found to have placed

the specified patients at a risk of harm by prescribing excessive narcotics, inadequately managing

and treating diabetes, failing to provide preventative care, and failing to follow up on issues

identified in previous office visits. Plaintiff argues that the Healthcare Department's expansion


         1
          Dr. Park referred to Tramadol as a narcotic during the relevant period; however, plaintiff insists the drug
was not classified as a narcotic until after the time in question.

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of the statutory language to include risk of harm effectively lowered the standard of proof

required to establish a violation of the statute.

& 25    We first acknowledge that plaintiff failed to raise his argument at the administrative

hearing. "The law in Illinois is wellestablished that, if an argument is not presented in an

administrative hearing, it is waived and may not be raised for the first time before the trial court

on administrative review. [Citation]. The rule is particularly applicable where, as here, the issue

is one of construction or interpretation of the statutes and rules that most directly concern the

agency's operations. [Citation.]" Lebajo v. Department of Public Aid, 210 Ill. App. 3d 263, 268

(1991). The record demonstrates that plaintiff did not raise this argument before the ALJ,

instead arguing that plaintiff's treatment controlled the risk of harm to his patients. The

argument, therefore, is waived.

& 26    However, even putting waiver aside, the Healthcare Department additionally suspended

plaintiff for his violations of sections 12-4.25(A)(e)(1) and (3) of the Code for providing grossly

inferior treatment and for treatment in excess of patient needs. 305 ILCS 5/12-4.25(A)(e)(1), (3)

(West 2012). As a result, even assuming, arguendo, the ALJ impermissibly expanded the scope

of the statute to include risk of harm, plaintiff still was found to have violated the statute and his

suspension remains supported by the evidence.

& 27                                       IV. ALJ's Errors

& 28    Plaintiff finally contends that the ALJ's decision should be reversed as a result of multiple

errors in the report.

& 29    First, plaintiff contends the ALJ erroneously concluded that count II, which found that he

placed patients at risk of harm, instead determined that he provided prescriptions in excess of

patient needs. After reviewing the ALJ's findings, it is clear from the context that the ALJ's


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conclusion was that plaintiff's excessive prescriptions placed his patients at risk of harm. The

mention of patients' needs in that section of the ALJ's report was a typographical error. Any

"error," therefore, was harmless. However, it also should be noted that any "error" was harmless

where the ALJ additionally concluded that plaintiff violated sections 12-4.25(A)(e)(1) and (3) of

the Code by authorizing prescriptions resulting in a grossly inferior quality of care and that were

in excess of the patients' needs, as previously stated. Either of those bases supported plaintiff's

suspension from the Medicaid program.

& 30   Next, plaintiff contends the ALJ erred in finding he did not comply with the standard of

care in relation to a specific test ordered on patient 1 when he claimed he did comply by signing

the test results. The "error" claimed here is merely conflicting testimony. As the finder of fact, it

was the ALJ's duty to resolve conflicts in the evidence. Flaherty v. Retirement Board of the

Policemen's Annuity & Benefit Fund of the City of Chicago, 311 Ill. App. 3d 62, 65 (1999).

Simply stated, plaintiff failed to demonstrate the ALJ's findings were against the manifest weight

of the evidence. See id. (the decision of an administrative agency is against the manifest weight

of the evidence only if the opposite conclusion was clearly evident); Finik v. Department of

Employment Security, 171 Ill. App. 3d 125, 134 (1988) (the mere existence of conflicting

testimony is not a sufficient basis to reverse an agency's decision as against the manifest weight

of the evidence).

& 31   Plaintiff additionally contends the ALJ erred in going outside the record to ascertain

whether plaintiff had prior violations without providing him an opportunity to contest the

material noticed by the ALJ in violation of the Administrative Procedure Act. Plaintiff concedes

that he had no prior violations; therefore, the ALJ's actions were "not detrimental" to him. It is

important to note that the challenged conduct of the ALJ inquiring whether plaintiff had a history



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of prior program violations occurred after the ALJ found plaintiff had violated the Code in the

underlying case. In fact, the ALJ inquired into plaintiff's history in order to determine the

appropriate sanction for plaintiff's violations in this case and was not used to determine whether

plaintiff violated the Act. A suspension, as was ordered here, is appropriate only where a vendor

has no prior history of violations of the Medicaid program. 89 Ill. Adm. Code 140.17 (1992).

As a result, we conclude that no error occurred under these circumstances.

& 32   Finally, plaintiff contends that the ALJ erred in mentioning the drug Tramadol in her

findings of fact even though she specifically found that references to Tramadol should be

stricken from the record. Plaintiff argues the agency's decision, therefore, was arbitrary and

capricious. We disagree. The ALJ mentioned the drug Tramadol in the findings of fact, as,

indeed, plaintiff prescribed the drug to a number of his patients. The ALJ's reference to striking

the drug from the record concerned whether the drug was a scheduled narcotic at the time it was

prescribed. There is nothing in the record to support plaintiff's contention that the ALJ

considered the Tramadol prescriptions as evidence of prescribing excessive narcotics.

& 33   In sum, plaintiff's challenged errors do not warrant a reversal of the Healthcare

Department's decision.

& 34                                    CONCLUSION

& 35   We affirm the decision of the circuit court, which affirmed the Healthcare Department's

finding that plaintiff violated section 12-4.25(A)(e) of the Code and was, therefore, suspended

from the Medicaid program for 12 months.

& 36   Affirmed.




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