ILLINOIS OFFICIAL REPORTS

Appellate Court

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

Appellate Court

Caption

ROBERT C. GROSS, Plaintiff-Appellant, v. THE DEPARTMENT OF

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

Rule 23 Order

withdrawn

Opinion filed

September 28, 2011

November 1, 2011

November 2, 2011

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

The Department of Financial and Professional Regulation properlyplaced

plaintiff’s license to practice medicine in “Refuse to Renew” status on the

basis of the actions of the Colorado State Board of Medical Examiners

placing plaintiff’s Colorado license permanently on inactive status,

despite the fact that no hearings were held and no discipline was imposed

by a hearing panel, since placing plaintiff’s license in permanent inactive

status qualified as disciplinary action against plaintiff for purposes of the

Illinois Medical Practice Act.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 09-CH-24019; the

Hon. Martin S. Agran, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Law Offices of Alan Rhine, of Chicago (Alan Rhine, of counsel), for

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 neverimposed 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 disciplinaryaction. The finding that the action does not count as discipline imposed

by a hearings panel does not resolve the issue of whetherthe 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 anotherstate *** 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

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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, particularlyin 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 hassome 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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