People v. Doneski ( 1997 )

First Division
April 21, 1997
No. 1-95-1096
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court
Plaintiff-Appellee, ) of Cook County.
)
v. )
)
TAMMY DONESKI, ) Honorable
) THOMAS DWYER,
Defendant-Appellant. ) Judge Presiding.
JUSTICE BUCKLEY delivered the opinion of the court:
Following a bench trial, defendant, Tammy Doneski, was
convicted of two counts of violating the Practice Act of 1987
(225 ILCS 60/49 (West 1992)), for (1) representing herself to the
public as being engaged in the practice of medicine, and (2)
attaching the title of doctor or M.D. to her name indicating that
she is engaged in the medical profession as a business. She was
found to have engaged in these practices during the period of
February through November 1993. Defendant appeals, raising the
following issues: (1) whether count IV of the indictment
properly charged the offense since it did not specify when or to
whom defendant allegedly held herself out as being engaged in the
practice of medicine; (2) whether the evidence failed to
establish that defendant held herself out as engaged in the
practice of medicine, but rather established that she was an
administrator and admittedly not a licensed or practicing
physician; (3) whether the evidence established that defendant
affixed the initials M.D. after her name on cards or stationery;
and (4) whether defendant was unfairly surprised and deprived of
the opportunity to confront witnesses when the court admitted
into evidence letters first produced on the morning of trial with
all but defendant's signature and the date redacted.
Defendant was indicted on five counts for committing the
offense of "persons without license holding themselves out to the
public as being engaged in diagnosis or treatment ailments of
human beings" in violation of the Practice Act of 1987 (225 ILCS
60/49 (West 1992)). A bench trial was held on counts IV and V of
the indictment, alleging respectively, that defendant "told
personnel at the Center For Human Reproduction that she was a
medical doctor," and that defendant "possessed, distributed and
allowed to be distributed business cards and stationery with her
name and the initials M.D. after it."
Before trial, defendant moved to dismiss the indictment for
failure to state an offense and to dismiss count IV specifically
on the ground that it was insufficient for purposes of double
jeopardy. The court denied both motions. After a two-day bench
trial, defendant was convicted of both counts on November 30,
1994. After hearing all factors in aggravation and mitigation,
the trial court sentenced defendant to 18 months probation, a
$1,000 fine, 20 days of community service and court costs.
The following evidence was presented during trial. The
Center For Human Reproduction (the Center) is an ob/gyn practice
specializing in infertility. A new position had been created at
the Center to handle patient complaints and to compile the
Center's statistical results of various infertility treatments.
In February or March 1993, Donna Havemann, the Center's executive
vice president, placed an ad in the Chicago Tribune to seek
candidates for a quality assurance and research coordinator with
"experience in data processing and statistics." The ad indicated
that applicants should have a master's degree in public health,
or an equivalent degree; a medical degree, medical license, or
Ph.D. was not required.
Defendant answered the ad with a resume indicating that she
was a candidate in the combined M.D./Ph.D. program at the
University of Chicago, and that she had received a bachelor of
science degree at the University of Chicago in 1988. An enclosed
cover letter stated that she was "in the process of completing
[her] doctoral thesis research" and had "indefinitely postponed
entering a medical residency program at this juncture" so that
she may "pursue other options within the healthcare industry."
In fact, defendant had not received a bachelor's degree from the
University of Chicago or any other university and she was never
enrolled in a M.D./Ph.D. combined program.
Defendant interviewed with the medical director of the
Center, Dr. Norbert Gleicher. He offered defendant the position,
which she accepted. While Dr. Gleicher admitted that defendant
never indicated that she was licensed to practice medicine in the
State of Illinois, he was under the impression that she had
completed the M.D./Ph.D. program at the University of Chicago.
After hiring defendant, Dr. Gleicher instructed Donna
Havemann to have defendant's name put on the letterhead and on
business cards followed by the designation "M.D./Ph.D." and the
title "Director of Quality Assurance and Data Management."
Defendant's name tag, worn on her lab coat at the clinic, bore
the same initials and title.
Dr. Gleicher testified that he introduced defendant to
staff members as "Dr. Doneski" and she never corrected him. Dr.
Gleicher also introduced her externally as "Dr. Doneski" and
heard the other staff members refer to defendant as "Dr.
Doneski." In the Center's brochures and inserts, defendant was
introduced as a graduate of the M.D./Ph.D. program of the
University of Chicago. The State's other witnesses, Benetta
Herman and Douglas Rabin, staff members at the Center, also
testified that defendant was referred to and introduced as "Dr.
Doneski." Ms. Herman stated that on one occasion, she had called
defendant "Tammy." Defendant instructed Ms. Herman to call her
"Dr. Doneski" rather than "Tammy." Donna Havemann also testified
that she recognized defendant's signature as "Dr. Doneski" on an
"on-call schedule."
On cross-examination, Dr. Gleicher testified that defendant
was not hired as a physician, was not to function as a practicing
physician, and was not on the Center's malpractice policy as a
physician. He stated that no one could make an appointment to
see defendant for patient care, and admitted that defendant's
title was put on her name tag to identify her function as
director of quality assurance. According to Dr. Gleicher,
defendant had never treated a patient during her employment at
the Center.
Defendant's responsibilities at the Center included taking
and writing up patients' complaints, analyzing patient
questionnaires, and reporting the outcome to Dr. Gleicher. Dr.
Gleicher reviewed and revised defendant's work. Defendant did
not offer to treat or suggest any treatment in her written work.
Defendant was also given a pager and was made available for
after-hours calls from patients seeking their test results.
These were all non-medical staff functions, requiring neither a
Ph.D. or M.D.
Prior to hiring defendant, Dr. Gleicher did not ask to see
defendant's diplomas. In the fall of 1993, he received a visit
from two investigators from the department which licenses
physicians and other healthcare professionals. He provided them
with printed materials which showed that defendant was not
employed as a practicing physician. Approximately one week
later, Dr. Gleicher received notification from the University of
Chicago that defendant never graduated from either their M.D. or
their Ph.D. program. Dr. Gleicher confronted and then fired
defendant.
In response to a subpoena for documents containing
defendant's signature and indicia that she held herself out as a
medical doctor, the Center produced, on the morning of trial, 14
letters written by defendant during the course of her employment
at the Center. The Center asserted a privilege under section 8-
2101 of the Code of Civil Procedure (735 ILCS 5/8-2101 (West
1992)), and the court allowed the letters to be admitted in
redacted form, with all but the letterhead, date, and closing
signature excised. Defendant objected both to receipt of the
documents in redacted form and to their production on the morning
of trial. The letters were admitted in completely redacted form
over defendant's objection. On six of these letters, defendant
had placed "M.D." and "Ph.D." following her signature.
Defendant made a motion for a directed finding at the
conclusion of the State's case-in-chief, which was denied.
Defendant testified on her own behalf. She stated that she
never told Donna Havemann or Dr. Gleicher that she was licensed
to practice medicine. She acknowledged authoring the letter to
Ms. Havemann in which she stated that she was in the process of
completing her doctoral thesis research and was indefinitely
postponing entering a medical residency program. Defendant
acknowledged that she did not receive a bachelor's degree from
the University of Chicago as was listed on her resume. She also
testified that she was never enrolled in the University's M.D. or
Ph.D. programs.
Defendant testified that during her employment at the
Center, she did not treat or diagnose any patient, nor did she
hold herself out to the public as being engaged in the business
of treating or diagnosing patients. She did not engage in any
conduct to solicit or establish a physician/patient relationship
with anyone visiting the Center.
On cross-examination, defendant testified that she never
told Dr. Gleicher not to mail the brochures because they falsely
stated that she graduated from the M.D. and Ph.D. programs at the
University of Chicago. She never told Donna Havemann to retract
the Center's letterhead because defendant was not an M.D. or
Ph.D. Nor did defendant instruct Donna Havemann to correct her
business cards. Defendant identified six of the State's exhibits
where she signed her name followed by M.D. or Ph.D.
After hearing closing arguments on both sides, the court
found defendant guilty of both counts. Count IV specifically
stated that defendant "held herself out to the public as being
engaged in the diagnosis or treatment of physical or mental
ailments or conditions *** of human beings, to wit: told
personnel at Center for Human Reproduction that she was a medical
doctor." Count V specifically stated that defendant "attached
the title doctor [or] M.D. *** to her or her name indicating that
she is in engaged in the treatment of human ailments or
conditions as a business, to wit: possessed, distributed and
allowed to be distributed business cards and stationery with her
name and the initials M.D. after it."
Defendant moved for an order of acquittal, or in the
alternative, for a new trial. She claimed that the indictment
did not fairly apprise her of the conduct that is alleged to have
violated the Act. She also claimed that there was no evidence
that she had held herself out as being engaged in the practice of
medicine. She claimed that there was no evidence that she caused
or requested the initials M.D. to be placed after her name on
business cards and stationery. Finally, defendant argued that
she was unfairly surprised, denied the opportunity to prepare,
and denied her constitutional right to confront witnesses when
the letters were produced on the morning of trial and admitted
into evidence in redacted form.
The court denied defendant's motion, and conducted a
sentencing hearing in which the court sentenced defendant to 18
months of probation, community service, and imposed a fine and
costs. This appeal followed.
First, we are asked to decide whether count IV of
defendant's indictment charges an offense. When the sufficiency
of the charging instrument is attacked, the standard of review is
to determine whether the instrument strictly complies with the
requirements of Illinois law. People v. DiLorenzo, 169 Ill. 2d
318, 319, 662 N.E.2d 412, 413 (1996); 725 ILCS 5/111-3 (West
1992). With regard to a charging document, such as an
indictment, Illinois law makes the following requirements:
"A charge shall be in writing and allege the
commission of an offense by:
(1) Stating the name of the offense;
(2) Citing the statutory provision alleged to
have been violated;
(3) Setting forth the nature and elements of
the offense charged;
(4) Stating the date and county of the
offense as definitely as can be done; and
(5) Stating the name of the accused, if
known." 725 IlCS 5/111-3(a) (West 1992).
It is well established that the purpose of these requirements is
to advise the accused of the nature of the charges against her,
to enable the accused to prepare her defense, and to serve as a
bar to future prosecution for the same offense. People v.
Williams, 266 Ill. App. 3d 752, 758, 640 N.E.2d 1275, 1280
(1994). "The relevant inquiry is not whether the alleged offense
could be described with greater certainty, but whether there is
sufficient particularity to enable the accused to prepare a
proper defense." People v. Meyers, 158 Ill. 2d 46, 54, 630
N.E.2d 811, 816 (1994).
Count IV of defendant's indictment contains all of the
statutory requirements for a charging instrument. (1) The name
of the offense is stated as "persons without license holding
themselves out to the public as being engaged in diagnosis or
treatment [of] ailments of human beings." (2) The statutory
provision that defendant allegedly violated is listed as "Chapter
225, Section 60/49 of the Illinois Complied Statutes, as
amended." (3) The nature and elements of the offense charged are
that defendant "held herself out to the public as being engaged
in the diagnosis or treatment of physical or mental ailments or
conditions *** of human beings, to wit: told personnel at Center
for Human Reproduction that she was a medical doctor." (4) Count
IV recites the date and county of the offense as "on or about
February 1993 thru October 1993 at and within the County of Cook,
Illinois." (5) Finally, defendant's name, Tammy Doneski, is
clearly identified.
Defendant's assertion that the indictment (1) does not
sufficiently apprise defendant of the nature of the accusation,
and (2) subjects defendant to double jeopardy, is without merit.
The language in the indictment is sufficient both to inform
defendant of the type of conduct which was violative of the Act
and to prevent future charges from being brought against
defendant for this specific offense during this time frame.
While the indictment may have been more specific, we find that it
met all mandatory requirements.
Next, we are faced with the question of whether the evidence
established the charged offenses. A criminal conviction will not
be set aside on review unless the evidence is so improbable or
unsatisfactory that there remains a reasonable doubt of the
defendant's guilt. People v. Jimerson, 127 Ill. 2d 12, 43, 535
N.E.2d 889, 903 (1989). It is not the function of this court to
retry a defendant when considering a challenge to the sufficiency
of the evidence of his or her guilt. People v. Boclair, 129 Ill.
2d 458, 474, 544 N.E.2d 715, 722 (1989). Rather, determinations
of the credibility of witnesses, the weight to be given to their
testimony, and the reasonable inferences to be drawn therefrom
are the responsibility of the trier of fact. People v. Nitz, 143
Ill. 2d 82, 95, 572 N.E.2d 895, 900-01 (1991). On review, the
relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 61
L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979); Nitz, 143 Ill.
2d at 95-96, 572 N.E.2d at 901.
Defendant claims that it takes more than just calling
oneself "doctor" to violate the Illinois Medical Practice Act.
Rather, a person must make representations that he or she is
engaged in the practice of medicine as a business. While
defendant admits that her conduct may have been morally culpable,
she insists that it did not to rise to the level of being
criminal. We disagree.
Human reproduction and infertility are highly sensitive
medical issues, requiring the care and personal attention of a
doctor. That defendant knowingly and intentionally adopted the
title "M.D." without possessing any of the requisite
qualifications renders her conduct not only immoral but criminal
in this state.
The Illinois legislature explicitly decided that conduct
such as defendant's should be illegal in the State of Illinois by
enacting the Illinois Medical Practice Act. The statute reads,
in relevant part, as follows:
"If any person does any of the following and
does not possess a valid license issued under
this Act, that person shall be sentenced as
provided in Section 59: (i) holds himself or
herself out to the public as being engaged in
the diagnosis or treatment of physical or
mental ailments or conditions *** of human
beings; *** or (v) attaches the title Doctor,
Physician, Surgeon, M.D., D.O. or D.C., or
any other word or abbreviation to his or her
name indicating that he or she is engaged in
the treatment of human ailments or conditions
as a business." 225 ILCS 60/49 (West 1992).
The statute does not require that defendant hold herself out as
being licensed to practice medicine in the State of Illinois, as
defendant insists. Rather, the statute makes it criminal to
represent oneself as being engaged in the practice of medicine
when that person is not licensed to practice medicine in the
State of Illinois.
The trial court apparently agreed with our understanding of
the statute when it ruled that defendant violated the Act by
having an office at the Center and holding the title "M.D." The
court rejected defendant's argument that the inclusion of her
title as director of quality assurance on the letterhead and her
name tag acted as a qualifier and dispelled any public perception
that defendant was a medical doctor. Rather, the court found
that there would be no way for the public to differentiate
between quality care at the Center and medical treatment.
We find the evidence to support the trial court's finding.
By utilizing the initials "M.D./Ph.D." while being an employee of
an infertility clinic, defendant represented herself as a doctor
not only to the patients at the Center but the staff and general
public as well. She signed letters on the clinic's letterhead
with "M.D." or "Ph.D." added to her signature. In her
application to the Center, defendant wrote a letter to Donna
Havemann falsely stating that she was in the process of
completing her doctoral thesis research when, in fact, defendant
had never been enrolled in either a M.D. or Ph.D. program.
Defendant never corrected Dr. Gleicher when he introduced her as
"Dr. Doneski" both inside the Center and externally. She
instructed a staff member to call her "Dr. Doneski" rather than
"Tammy." Defendant was aware that "M.D./Ph.D." followed her name
on the Center's stationery, her name tag and business cards, yet
never brought it to anyone's attention that she was not qualified
to hold either title. Defendant signed her own name on the "on-
call schedule" as "Dr. Doneski." Clearly, a person not intending
to hold herself out as a doctor would not conduct herself in such
a manner.
We do not find that defendant's lack of active involvement
in causing the initials "M.D." to be placed after her name on
cards or stationery rectifies her conduct. As discussed above,
by failing to notify either Donna Havemann or Dr. Gleicher that
she was not an "M.D./Ph.D.," and by allowing the letterhead and
business cards to continue to read "Tammy Doneski, M.D., Ph.D.,"
defendant led everyone at the Center and the public at large to
believe that she was a medical doctor. Moreover, the evidence
established that defendant did cause the "M.D./Ph.D." to be
affixed after her signature on six different letters by signing
her name in that manner. By representing herself as "Tammy
Doneski, M.D., Ph.D." while working at a medical clinic,
defendant engaged in precisely the type of conduct that the
legislature intended to prohibit by enacting the Illinois Medical
Practice Act.
Finally, we consider defendant's claim that she was unfairly
surprised and deprived of the opportunity to confront witnesses
when the court admitted into evidence letters first produced on
the morning of trial with all but defendant's signature and the
date redacted. The court allowed letters with defendant's
signature to be produced in redacted form after recognizing a
privilege under section 8-2101 of the Code of Civil Procedure
(735 ILCS 5/8-2101 (West 1992)). Section 8-2101 protects from
disclosure all information and materials used by hospitals
intended to improve quality control, patient care, and to reduce
morbidity or mortality. Zajac v. St. Mary of Nazareth Hospital
Center, 212 Ill. App. 3d 779, 788, 571 N.E.2d 840, 845-46 (1991);
735 ILCS 5/8-2101 (West 1992).
Defendant maintains that the court gave preference to the
privilege at the expense of her constitutional right to confront
witnesses since she could not ascertain from the redacted letters
whether they were written to patients or other doctors, or
whether she was "ordering a salami sandwich or tickets to a
hockey game." This argument, however, fails to recognize that
section 8-2101 (735 ILCS 5/8-2101 (West 1992)) protects only
medical information and if the letters did not contain such
information, the privilege would not have been applicable and the
court would not have ordered the letters to be redacted.
More significantly, the only relevant issue with respect to
the letters is the manner in which defendant signed them. "The
trial court is granted broad discretion regarding the admission
of evidence and its decision will not be reversed on appeal
unless that discretion has been clearly abused." Zajac, 212 Ill.
App. 3d at 788, 571 N.E.2d at 846. The content of the letters
and to whom they were written is not only privileged and
confidential, but also irrelevant since defendant was indicted
for holding herself out as being engaged in the practice of
medicine, and only her signature on the letters is probative of
this fact. The redacted letters established that defendant
personally placed the title of "M.D." after her signature on at
least six different occasions, presenting herself to the public
as a practitioner of medicine.
For the foregoing reasons, we affirm defendant's conviction
on both counts.
Pursuant to People v. Nicholls, 71 Ill. 2d 166, 374 N.E.2d
194 (1978), and relevant statutory provisions (725 ILCS 5/110-
7(h) (West 1992); 725 ILCS 130/13 (West 1992); 55 ILCS 5/4-2002.1
(West 1992)) we hereby grant the State costs and a fee of $100
for defending this meritless appeal. Additionally, pursuant to
People v. Agnew, 105 Ill. 2d 275, 473 N.E.2d 1319 (1985), and
section 4-2002.1 of the Counties Code (55 ILCS 5/4-2002.1 (West
1992)), we grant the State an additional fee of $50 for oral
argument of this case.
Affirmed.
O'BRIEN and GALLAGHER, JJ., concur.