Dookeran v. County of Cook ( 2009 )

FIRST DIVISION
December 14, 2009
No. 1-08-1426
KEITH DOOKERAN, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee ) Cook County.
and Cross-Appellant, )
)
v. ) No. 06 CH 15376
)
THE COUNTY OF COOK, )
) The Honorable
Defendant-Appellant ) Kathleen M. Pantle,
and Cross-Appellee. ) Judge Presiding.
JUSTICE GARCIA delivered the opinion of the court:
This appeal and cross-appeal arise from Dr. Keith Dookeran's
petition for review, through a common law writ of certiorari, of
the Cook County Board's denial of his 2004 application for
reappointment to the medical staff at John H. Stroger, Jr.,
Hospital of Cook County (Stroger). Dr. Dookeran was first hired
by Stroger in 2000, subject to biennial reappointments. In his
2004 reappointment application, Dr. Dookeran revealed for the
first time that he received a formal reprimand from his previous
employer. Neither his initial 1999 application nor his 2002
reappointment application detailed the reprimand. Several
administrative committees at Stroger conducted inquiries into the
omission and discovered both the details of the previous
reprimand and a series of allegations that Dr. Dookeran behaved
unprofessionally toward students, staff, and colleagues at
Stroger. Pursuant to Stroger's medical staff bylaws (bylaws), a
hearing committee was formed and heard testimony concerning the
allegations against Dr. Dookeran.
Based on its findings, the hearing committee recommended
that Dr. Dookeran's reappointment application be denied.
Although other administrative committees disagreed, the Cook
County Board adopted the hearing committee's recommendation and
denied Dr. Dookeran's reappointment application. Dr. Dookeran
filed a petition for a writ of certiorari in the circuit court.
Judge Kathleen M. Pantle reversed the Board's denial of Dr.
Dookeran's reappointment in favor of the reprimand recommended by
Stroger's executive medical staff (EMS) to suspend Dr. Dookeran's
clinical privileges for 30 days.
Cook County appeals, arguing that Judge Pantle failed to
give due deference to the facts set out in the administrative
record supporting the Board's denial of Dr. Dookeran's
reappointment.
Dr. Dookeran cross-appeals from the 30-day suspension.
Because the Board's decision to deny reappointment was not
arbitrary or capricious, we affirm the Board's decision and
reverse Judge Pantle's order.
BACKGROUND
Dr. Dookeran's Employment History
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In January 1997, Dr. Dookeran was hired at Mercy Hospital in
Pittsburgh (Mercy) as a general surgeon and surgical oncologist.
On November 18, 1998, Dr. Ronald Boron, chairman of the medical
executive committee at Mercy, sent Dr. Dookeran a letter formally
reprimanding him for "creat[ing] a hostile work environment."
The letter requested that Dr. Dookeran "refrain from screaming
and yelling at, berating, threatening and intimidating Mercy
Hospital employees," and noted that "[f]urther outbursts and
disruptive behavior of this type" would lead to "more serious
action." In the letter, Mercy's medical executive committee
recommended that Dr. Dookeran "seek help in the form of
counseling to assist in the control of this behavior."
Also in November 1998, Dr. Dookeran received a letter from
the Greater Pittsburgh Surgical Associates (Greater Pittsburgh),
a group practice at Mercy, terminating his position as director
of surgical research and associate program director of the
general surgery residency program. According to the letter, the
terminations were "a consequence of [Dr. Dookeran's]
unprofessional conduct toward Mercy Hospital employees."
Applications and Appointments at Stroger
In 1999, Dr. Dookeran applied for a position in the surgery
department at Stroger. In his application, Dr. Dookeran noted
that his contract with the Greater Pittsburgh practice group was
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terminated in November 1998. Although the application form asked
if Dr. Dookeran's clinical privileges had ever been revoked, it
did not request information regarding formal reprimands; Dr.
Dookeran's application did not disclose his reprimand letter from
Mercy. Dr. Dookeran's application included a letter of
recommendation from Dr. Howard Zaren, who supervised Dr. Dookeran
at Mercy and in 1999 was chairman of Stroger's surgery
department. Dr. Zaren would later testify before Stroger's
hearing committee that he was aware of Dr. Dookeran's Mercy
reprimand when he wrote the recommendation, but he believed the
reprimand was "retaliation for a whistle blowing situation"
wherein Dr. Dookeran allegedly discovered that doctors at the
Mercy Cancer Institute forged their names on a grant application
Dr. Dookeran prepared. In his recommendation, Dr. Zaren did not
mention the reprimand letter and rated Dr. Dookeran's
relationships with students, colleagues, and paramedical staff as
exceptional. Based in part on Dr. Zaren's recommendation, Cook
County appointed Dr. Dookeran to the Stroger medical staff as an
attending physician with clinical privileges.
After his appointment, Dr. Dookeran was required by the
bylaws to apply for reappointment biennially. In July 2002, Dr.
Dookeran submitted an application for reappointment to his
department chair, Dr. Zaren, who pursuant to the bylaws then
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submitted it to Stroger's credentials committee. On the form,
Dr. Dookeran indicated that he had not been reprimanded by any
health care organization over the prior four years, failing to
note Mercy's reprimand three years and eight months earlier. Dr.
Dookeran was reappointed.
In April 2004, Dr. Dookeran again applied for reappointment
by submitting the same form to Dr. Zaren and the credentials
committee. However, on the 2004 application Dr. Dookeran fully
disclosed the details of his Mercy reprimand, which by this point
dated back nearly seven years.
Administrative Review at Stroger
The credentials committee requested in writing that Dr.
Dookeran explain his failure to disclose Mercy's reprimand in
either his 1999 job application or his 2002 reappointment
application. In response, Dr. Dookeran wrote to the committee
that the 1999 application form did not request information on
reprimands, and that in July 2002 he "perhaps believed that the
reprimand had occurred almost four years previously and that
there was no need for reporting." Dr. Dookeran added, "[i]n my
2004 reapplication, I did not need to report the reprimand since
it occurred 7 years ago, however, I did so in error."
Subsequently, the credentials committee interviewed Dr. Dookeran
and several other members of Stroger's staff to determine whether
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his behavior at Stroger was similarly unprofessional as his
conduct at Mercy.
Pursuant to the bylaws, the credentials committee submitted
a recommendation to deny Dr. Dookeran's reappointment application
to the executive medical staff (EMS). The bylaws provide that
the EMS should review the credentials committee's recommendation
and submit a recommendation of its own to the medical director
and the joint conference committee, which advises the Cook County
Board on its final decision. However, the bylaws permit an
alternative path for review; any staff member can file a report
with the peer review committee whenever the conduct of a
practitioner threatens patient safety or falls below professional
standards. Before making its recommendation to the medical
director and joint conference committee, the EMS utilized this
alternative and referred the matter to the peer review committee
to investigate Dr. Dookeran's alleged misconduct at Stroger.1
1
The record also reflects that the joint conference
committee directly reviewed and adopted in full the credentials
committee's recommendation to deny reappointment prior to
receiving a final recommendation from the EMS. The bylaws do not
provide for such review, and no action was taken by the Cook
County Board until the joint conference committee received a
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The peer review committee reviewed the credentials
committee's report, met with members of the credentials
committee, and interviewed Dr. Dookeran, Dr. Zaren, and several
other members of Stroger's staff. The peer review committee then
issued a written recommendation to the EMS. In its
recommendation, the peer review committee concluded that Dr.
Dookeran "willfully falsified" his 2002 reappointment application
by denying the existence of the Mercy reprimand letter, and that
Dr. Dookeran "has a long history of inappropriate behavior with
hospital personnel" which "consists of verbal abuse." The
committee also found that Dr. Dookeran "has not shown the ability
or willingness to change his behavior." However, the peer review
committee recommended only a 29-day suspension of Dr. Dookeran's
clinical privileges.
The EMS reviewed the peer review committee's recommendation
and adopted it, but increased the length of the suggested
suspension to 30 days. This would require Dr. Dookeran to report
the suspension to the national physician data bank and adversely
affect his future employment prospects. The bylaws provide that
when the EMS makes such an adverse recommendation against a
final recommendation from the EMS and voted again to deny
reappointment.
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practitioner, it triggers that practitioner's right to a "hearing
and appeal" challenging that unfavorable decision before it is
submitted to the joint conference committee. The bylaws further
provided that at such a hearing, the practitioner "shall have the
burden of proving, by clear and convincing evidence, that the
adverse action or recommendation lacks a factual basis or that
the adverse action or recommendation is arbitrary, capricious or
unreasonable." At Dr. Dookeran's request, a hearing committee
composed of five attending members of the medical staff not
previously involved in the case was appointed to hear his appeal.
Testimony Before the Hearing Committee
The testimony before the hearing committee concerned Dr.
Dookeran's reappointment applications and several allegations of
unprofessional conduct by Dr. Dookeran at Stroger. Because the
testimony was given at several different times based upon the
availability of the relevant witnesses, we present it below
according to its subject matter.
Dr. Dookeran's Reappointment Applications
In his testimony before the hearing committee, Dr. Dookeran
admitted it was an error not to disclose his reprimand letter
from Mercy on his 2002 reappointment application, but added that
he "interpreted [the disclosure period] to be roughly four
years." Dr. Dookeran testified that he received the reprimand
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after the vice president of Mercy Cancer Institute solicited
false complaints against him in retaliation for Dr. Dookeran
"blowing the whistle" on a fraudulent application for a research
grant from the National Cancer Institute.2 Dr. Zaren also
testified that he believed Dr. Dookeran received his reprimand
letter from Mercy "in retaliation" for reporting the allegedly
fraudulent grant application.
Incidents with Rush University
Dr. Larry Goodman testified that in 2001 he was the dean of
the Rush University Medical School. In 2001, Rush medical
students did surgery rotations at Stroger, where Dr. Dookeran was
appointed student site coordinator. Dr. Goodman testified that
some of the students' written evaluations "described an
environment *** that I thought was problematic." Specifically,
Dr. Goodman recalled that one student used the term "bullying" to
describe Dr. Dookeran's treatment of students. Dr. Goodman wrote
a letter to Dr. Zaren indicating that he was assigning a new site
2
Dr. Dookeran filed a complaint against Mercy for
retaliatory discharge under the whistleblower provision of the
False Claims Amendments Act of 1986 (31 U.S.C. §3730(h) (2000)),
which was dismissed. See Dookeran v. Mercy Hospital of
Pittsburgh, 281 F.3d 105 (3rd Cir. 2002).
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coordinator and would not allow students to rotate in clinics or
the operating room with Dr. Dookeran. Dr. Goodman never took
similar actions with any other site coordinator.
Dr. Linnea Hauge, an assistant professor in the general
surgery department at Rush, testified that she was also involved
in the decision to remove Dr. Dookeran as site director. She
testified that Rush students registered complaints against Dr.
Dookeran for his "intimidating behaviors and inappropriate
language," as well as "unprofessional interactions with
students." Dr. Hauge also testified to unprofessional conduct by
Dr. Dookeran directed at her. In 2000 she sought approval from
Drs. Zaren and Dookeran to conduct a study at Stroger in her
specialty, sports psychology. Drs. Zaren and Dookeran indicated
that they would not approve the study unless it "[had] their name
on it" as authors, although they did not intend to participate in
the study as required for authorship credit under American
Medical Association standards. Dr. Hauge testified that Dr.
Dookeran "insulted and berated" her and never approved the study.
Dr. Zaren testified that Dr. Goodman's concern about Rush
medical students' complaints was "strange" because Dr. Zaren had
"seen *** similar evaluations in the past in every medical school
relationship that [he was] involved in." Nonetheless, Dr. Zaren
admitted that he "thought that [the complaints] were perhaps
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troublesome." He agreed with Dr. Goodman that Dr. Dookeran
should no longer have contact with Rush students and initiated
sensitivity training at every level of the surgery department.
In response to the allegations of Drs. Goodman and Hauge,
Dr. Dookeran testified that his position at Stroger required him
to account for the costs and benefits of the Rush program, which
led to tension with Rush administrators. He testified that their
decision to remove him as Rush site coordinator and their
testimony at the hearing were motivated by that conflict. Dr.
Dookeran claimed that Dr. Hauge was lying when she testified that
he and Dr. Zaren refused to approve her study unless they were
credited as co-authors.
Chicago Medical School Incidents
Dr. Lecia Apantaku testified that she is the director of
undergraduate education for the department of surgery at the
Chicago Medical School (CMS) and oversees the surgical education
of students, including their surgical rotations at Stroger. In
2001, Dr. Dookeran was internal coordinator for CMS students at
Stroger. Dr. Apantaku testified that some of the students
complained of being "berated publicly" by Dr. Dookeran. In
February 2004, Dr. Apantaku called Dr. Dookeran to address the
complaints. Dr. Dookeran claimed that those who registered
complaints were poor students, then Dr, Dookeran resigned as the
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internal coordinator. Dr. Apantaku testified that after Dr.
Dookeran's resignation, she received a letter from a student,
Roderick Hart, in which he claimed that Dr. Dookeran "unjustly
criticized [him] in public in a very unprofessional manner."
Because Dr. Dookeran had already resigned his position with CMS,
she did not pursue the matter.
In response to the allegations of misconduct toward CMS
students, Dr. Dookeran testified that Dr. Apantaku never
contacted him about complaints from students. He testified that
he resigned as site coordinator "because it was too much work."
Dr. Zaren testified that he met with Roderick Hart. Dr.
Zaren was "perplexed" by Hart's complaints of racial
discrimination because both Hart and Dr. Dookeran are black.
Nonetheless, he told Hart that he could change Hart's rotation.
Dr. Zaren also testified that all students complain when they
receive negative evaluations.
Relationship with Dr. Robert Walter
Dr. Robert Walter testified that prior to 2003 he was a
scientific officer in the department of surgery at Stroger. His
primary duties were to run a laboratory and conduct a research
program. In 2002, Dr. Dookeran became Dr. Walter's supervisor.
In 2003, Dr. Dookeran began requiring Dr. Walter to use a time
clock to prove his attendance at the hospital because Dr.
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Dookeran repeatedly had difficulty locating Dr. Walter during
work hours. Dr. Walter testified that to his knowledge no other
scientific officers at Stroger are required to use a time clock.
In January 2003, Dr. Walter attended a meeting with Drs.
Zaren and Dookeran at which Dr. Dookeran asked Dr. Walter to
explain how the department of surgery benefitted from the various
"collaborative projects" Dr. Walter conducted with doctors in
other departments and at other institutions. According to Dr.
Walter's testimony, Dr. Dookeran asked how the department of
surgery would be "paid back" for his time, and at one point
suggested that "one of the ways the Department [of surgery] could
be compensated is if these people that I was collaborating with
were to pay *** for instance, to a Hektoen [bank] account. They
could pay a monetary amount and then he said possibly to my
Hektoen account." Dr. Walter testified that he was "stunned,"
and subsequently he wrote a memo to Drs. Dookeran and Zaren
asking for clarification. In response, Dr. Dookeran called Dr.
Walter into his office, "then just started to rage *** and have a
tirade about this memo" for 10 to 15 minutes. Dr. Walter
testified that Dr. Dookeran began "shouting down at me and
calling me a liar."
Dr. Zaren testified that Dr. Walter's testimony about the
January 2003 meeting was "[a]bsolutely untrue." He also
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testified that Dr. Walter refused to follow the rules and
regulations that Dr. Zaren established for him, and that any
timekeeping requirements Dr. Dookeran imposed were at Dr. Zaren's
behest. Dr. Zaren testified that Dr. Walter was subsequently
transferred to the trauma burn department.
Dr. Dookeran testified that Dr. Walter was an unhelpful
employee that refused to aid Drs. Dookeran and Zaren in
developing a cancer center at Stroger. He testified that "a lot"
of Dr. Walter's testimony did not "adequately represent what
happened."
Erica Radeke, an administrator that worked with Dr.
Dookeran, testified that she shared an office with Dr. Dookeran
and was present when Dr. Dookeran called Dr. Walter into the
office to discuss his memo. Radeke testified that Dr. Dookeran
was not threatening and did not call Dr. Walter a liar. She
added that it was "public knowledge" that Dr. Dookeran was "a
little bit deaf," which often caused him to talk louder than most
people.
Conduct Toward Dr. Gabriela Oana
Dr. John Greager, chairman of surgical oncology at Stroger,
testified that in 2004 he received a letter from another student,
Dr. Gabriela Oana, claiming that "Dr. Dookeran [did not act] in
what was conceived as a professional manner" when he paged her
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repeatedly during surgery and yelled at her. Dr. Greager wrote a
memo to the associate chairwoman of education at Stroger
requesting that Dr. Oana be reappointed in future rotations. Dr.
Greager also testified that "a number of incidences [were]
reported to myself and others regarding a similar kind of
scenario."
Nurse Luth Mendoza testified on Dr. Dookeran's behalf about
the alleged incident in 2004 involving Dr. Oana. She testified
that she was asked by Dr. Dookeran to page Dr. Oana repeatedly to
join him in surgery, but Dr. Oana did not respond. When she
later saw Dr. Oana in surgery with Dr. Dookeran, she did not see
Dr. Dookeran yell at or threaten Dr. Oana. Nurse Alfredo Lazo
also testified that he was in the operating room at the time of
the incident and that Dr. Dookeran did not yell at Dr. Oana.
Dr. Dookeran testified that a number of the complaints
against him "have to do with Dr. Greager and people concerned
with Dr. Greager," but suggested that these complaints were made
in retaliation for "an altercation" between Dr. Greager and Dr.
Dookeran's staff.
Other Incidents With Stroger Staff
Nurses Lori Supol and Adelina Jonson each testified that on
May 10, 2004, Dr. Dookeran walked outside an operating room
during a surgical procedure and started "yelling" for fixative
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that should have been kept stocked in the room. Nurse Jonson
also read the statements of technician Joven Visperas and nurse
Myung Kim into evidence, each of which confirmed the incident.
Physician's assistant Wendy Rogowski testified that she was
assisting Dr. Dookeran during the procedure on May 10, 2004. She
testified that Dr. Dookeran left the room and stated that
fixative "was needed now in a firmness," but his actions were
appropriate for the case because fixative was needed immediately
to complete a surgical procedure on a patient.
Nurse Celine Drwiega testified that on two occasions she was
subjected to Dr. Dookeran's "verbal abuse and bullying." In the
first instance, she was assisting Dr. Dookeran on a breast
biopsy. She removed a clamp from a tissue sample, accidentally
dislodging a wire necessary to handle the sample. Nurse Drwiega
testified that Dr. Dookeran repeatedly shouted "you are the most
incompetent nurse, why did you remove that [clamp]?"
On another occasion, Nurse Drwiega was assigned to prepare a
room for a surgery Dr. Dookeran was to perform. When Dr.
Dookeran arrived, an instrument requested by the anesthesiologist
was being sterilized elsewhere and, thus, the room was not ready.
Dr. Dookeran "became angry and shouted loudly at me 'you are
ignorant and I'm not the only one that thinks so.' " He also
called nurse Drwiega incompetent.
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Susanne Klein, Stroger's director of quality assurance,
testified that during a training session for the Illinois
Department of Public Health's survey staff in 2004, a surveyor
observed Dr. Dookeran become angry during a surgery. The
surveyor said that Dr. Dookeran was "very unhappy with the staff
in the room." Klein testified that this was the only time in her
15 years as director of quality assurance that a surveyor had
brought a surgeon's behavior to her attention.
Peer Review Committee Testimony
Dr. Jay Mayefsky, the chairman of the peer review committee,
testified that during the peer review committee's interview with
Dr. Dookeran, he asked Dr. Dookeran two questions in quick
succession. Dr. Dookeran "exploded in fury, accusing [Dr.
Mayefsky] of not being courteous to him and was really, really
angry." Dr. Robert Kern, another member of the peer review
committee, also testified before the hearing committee.
According to Dr. Kern's testimony, Dr. Dookeran did not "explode"
at Dr. Mayefsky, but only became "somewhat defensive." Dr. Kern
testified that he would react similarly in a "tense situation."
Character Witnesses
Dr. Dookeran called several witnesses to testify to his
professional character. Drs. Caroline Lopez, Karen Ferrer, and
Marin Sekosan each testified that they saw Dr. Dookeran work with
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other staff members and students, and they had not seen him act
unprofessionally nor had they heard any complaints about Dr.
Dookeran's behavior.
Hearing Committee Recommendation
After considering the above testimony, the hearing committee
submitted written findings to the EMS president in accordance
with the bylaws. The hearing committee found that Dr. Dookeran
failed to provide "clear and convincing evidence *** that he did
not willfully falsify his 2002 reappointment application," and
did not "provide convincing evidence that he did not display
abusive or unprofessional behavior toward the several people
presented at this hearing." The committee lamented that "[w]ith
absolutely no insight into his problem with anger management, one
cannot expect that it will ever change." Dr. Dookeran "failed
*** to successfully challenge the credibility of the evidence,"
and thus the hearing committee concluded that "the Credential
Committee's recommendation [to deny reappointment] is based on
fact and is not arbitrary, capricious or unreasonable." Choosing
from six possible sanctions listed in the bylaws, the hearing
committee recommended to the EMS the most severe: suspension or
revocation of Dr. Dookeran's staff membership.
Final Action and Circuit Court Review
In accordance with the bylaws, the EMS reviewed the hearing
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committee's recommendation and made a recommendation of its own
to the medical director and joint conference committee. The EMS
again recommended a 30-day suspension of Dr. Dookeran's clinical
privileges. However, the joint conference committee voted to
adopt the hearing committee's position and revoke Dr. Dookeran's
staff membership. The joint conference committee forwarded that
recommendation to the Cook County Board for final action; on June
20, 2006, the Cook County Board adopted that recommendation and
denied Dr. Dookeran's reappointment application, thereby
terminating his employment at Stroger.
Dr. Dookeran filed a petition for a common law writ of
certiorari in circuit court seeking review of the Cook County
Board's action. On January 30, 2008, Judge Pantle issued an
order in which she found that "there is ample evidence to support
factual findings about a pattern of verbally abusive and
inappropriate behavior on the part of Dr. Dookeran [and] that he
failed to disclose [his Mercy reprimand] on his application for
reappointment in 2002." However, Judge Pantle expressed concern
with the hearing committee's recommendation, noting that it
"contains no analysis of how the hearing committee came to [its]
conclusion, and why lesser sanctions are inappropriate." Finding
that the recommendation of the hearing committee, later adopted
by the joint conference committee, "is not supported by the
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facts," Judge Pantle "vacated" the denial of reappointment and
"remanded to the hearing committee to recommend a lesser
sanction."
Cook County filed a motion for reconsideration. On April
30, 2008, Judge Pantle denied the motion, noting that the joint
conference committee's "lack of any reasoning, coupled with the
imposition of a burden on Dr. Dookeran to prove that the
allegations did not occur (a burden which is contrary to well-
established principles of law), warrant the conclusion that there
is no competent evidence of record which supports the sanction
imposed." However, Judge Pantle granted Cook County's motion for
modification of the April 30, 2008, judgment; on May 16, 2008,
Judge Pantle entered an order remanding to the Cook County Board
to enter an order suspending Dr. Dookeran's clinical privileges
for 30 days as recommended by the EMS. Judge Pantle noted that
the May 16, 2008, order was final and appealable. Cook County
timely appealed, and Dr. Dookeran timely cross-appealed.
ANALYSIS
Standard of Review
"A common law writ of certiorari is a general method for
obtaining court review of administrative actions when the act
conferring power on the agency does not expressly adopt the
Administrative Review Law [citation], and provides for no other
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form of review." Lapp v. Village of Winnetka, 359 Ill. App. 3d
152, 166, 833 N.E.2d 983 (2005), citing Dubin v. Personnel Board,
128 Ill. 2d 490, 497-99, 539 N.E.2d 1243 (1989). The standard of
review of a writ of certiorari is identical to that under the
Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2006)).
Lapp, 359 Ill. App. 3d at 166.
In administrative review cases, we review the decision of
the administrative agency, not the decision of the circuit court.
Gaston v. CHAC, Inc., 375 Ill. App. 3d 16, 22, 872 N.E.2d 38(2007), citing Ahmad v. Board of Education, 365 Ill. App. 3d 155,
162, 847 N.E.2d 810 (2006). Our review of an administrative
agency's discharge of an employee proceeds in two stages: first
we determine if the agency's findings of fact are contrary to the
manifest weight of the evidence; then we decide whether "the
agency's factual findings provide a sufficient basis for
concluding 'cause' for discharge exists." Applegate v.
Department of Transportation, 335 Ill. App. 3d 1056, 1062, 783
N.E.2d 96 (2002), citing Grames v. Illinois State Police, 254
Ill. App. 3d 191, 204-05, 625 N.E.2d 945 (1993).
At the first stage, we take the administrative agency's
factual findings as prima facie true and correct; we will not
reverse those findings unless they are against the manifest
weight of the evidence. Gaston, 375 Ill. App. 3d at 22-23,
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citing Ahmad, 365 Ill. App. 3d at 162. On factual questions, we
review the administrator or committee that "acts as a fact
finder, hearing testimony, determining the credibility of
witnesses and drawing reasonable inferences from the evidence"
(Gaston, 375 Ill. App. 3d at 23, citing Ahmad, 365 Ill. App. 3d
at 162); in this case, the hearing committee played that role.
At the second stage, we will overturn "a public hospital's
rejection of an application for staff membership *** [only] if
the rejection was arbitrary, capricious or unreasonable." Evers
v. Edward Hospital Ass'n, 247 Ill. App. 3d 717, 729, 617 N.E.2d
1211 (1993), citing Mauer v. Highland Park Hospital Foundation,
90 Ill. App. 2d 409, 413, 232 N.E.2d 776 (1967).
Hearing Committee's Factual Findings
In its appeal, Cook County contends that the denial of Dr.
Dookeran's reappointment application is not arbitrary or
unreasonable, but is properly based upon the factual findings of
the hearing committee, which Judge Pantle did not overturn.
Thus, Cook County's appeal concerns only the second stage of
review. See Applegate, 335 Ill. App. 3d at 1062, citing Grames,
254 Ill. App. 3d at 204-05. However, in his cross-appeal, Dr.
Dookeran challenges nearly all of the hearing committee's factual
findings, arguing that they are contrary to the manifest weight
of the evidence and, thus, cannot support any adverse action.
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Because Dr. Dookeran's claims on cross-appeal address the hearing
committee's factual findings, properly the subject of the first
stage of our review, it is appropriate we address those claims
first.
At the outset, we note Judge Pantle's concern that Dr.
Dookeran bore the burden at the hearing to present clear and
convincing evidence that the EMS lacked a factual basis to take
the recommended adverse action. That the evidentiary burden
falls on Dr. Dookeran is clearly set forth in the bylaws
describing the hearing and appeal procedure. The hearing and
appeal procedure was only triggered after the adverse
recommendation was issued against Dr. Dookeran. We note that Dr.
Dookeran does not challenge the validity of the bylaws that he
bears the burden of challenging the factual basis for the adverse
action. Where the bylaws themselves are not challenged, our
review is limited to ensuring that the bylaws are duly followed.
See, e.g., Goldberg v. Rush University Medical Center, 371 Ill.
App. 3d 597, 602, 863 N.E.2d 829 (2007) (review of a hospital's
dismissal is limited to whether the hospital complied with its
bylaws). Further, we note that Illinois courts have consistently
held that "a plaintiff to an administrative proceeding holds the
burden of proof, and relief will be denied if he or she fails to
sustain that burden." Miller v. Hill, 337 Ill. App. 3d 210, 216,
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785 N.E.2d 532 (2003), citing Iwanski v. Streamwood Police
Pension Board, 232 Ill. App. 3d 180, 184, 596 N.E.2d 691 (1992).
A clear-and-convincing-evidence burden is placed upon plaintiffs
to administrative hearings in other contexts, such as a taxpayer
contesting an assessment (United Airlines, Inc. v. Pappas, 348
Ill. App. 3d 563, 569, 809 N.E.2d 735 (2004)) or a driver
petitioning for a restricted driving permit after a DUI-related
license revocation (Cisneros v. White, 337 Ill. App. 3d 93, 103,
785 N.E.2d 99 (2003)). We do not share Judge Pantle's concern
with Dr. Dookeran's burden at the "hearing and appeal" as
provided by the bylaws to challenge the findings of the hearing
committee.
Dr. Dookeran first contends the hearing committee's finding
that he willfully falsified his 2002 reappointment application is
contrary to the manifest weight of the evidence. Dr. Dookeran
points to Dr. Zaren's knowledge of the Mercy reprimand as
evidence that he did not intentionally omit the information. We
disagree. Dr. Zaren's awareness of Dr. Dookeran's Mercy
reprimand is irrelevant; the 2002 reappointment application made
clear that "omission of information may be grounds for rejection
or termination." Dr. Dookeran admitted before the hearing
committee that he indicated that he had not been reprimanded by
any health care organization over the prior four years in his
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2002 application. His later disclosure of the Mercy reprimand on
his 2004 reappointment application did not absolve his 2002
omission. Dr. Dookeran's assertion that he "interpreted [the
disclosure period] to be roughly four years" does not explain the
omission of the reprimand that fell within the four-year time
period. The 2002 reappointment form's language is clear: Dr.
Dookeran was required to disclose the Mercy reprimand because it
was issued less than four years prior. Nor was disclosing his
termination from the Greater Pittsburgh practice group in his
1999 application for the position at Stroger equivalent to
disclosing the reprimand he received from Mercy itself. We find
no evidence to undermine the hearing committee's finding that Dr.
Dookeran willfully falsified his 2002 reappointment application.
Next, Dr. Dookeran challenges the hearing committee's
finding that he behaved unprofessionally toward Rush medical
students and administrators. Dr. Goodman provided testimony
about the nature of student evaluations he received from Rush
students concerning Dr. Dookeran and recalled specifically one
student referring to Dr. Dookeran's conduct as "bullying." Dr.
Goodman removed Dr. Dookeran as student coordinator for Rush
medical students, an action he had never taken with another
student coordinator in 15 years. The hearing committee
specifically found Dr. Goodman's testimony credible. Dr.
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Goodman's testimony was reinforced by Dr. Hauge's testimony that
Rush students complained that Dr. Dookeran acted unprofessionally
in the course of instructing them.
Dr. Dookeran argues that this testimony is hearsay and
therefore cannot constitute evidence of specific instances of
misconduct, an assertion he repeats throughout his challenges to
the various factual findings by the hearing committee. The
bylaws, however, make clear that the hearing committee is not
required to adhere to "strict rules of evidence" and that "[a]ny
relevant matter upon which responsible persons customarily rely
in the conduct of serious affairs [may] be admitted regardless of
the admissibility of such evidence in a court of law." Dr.
Dookeran does not contend that testimony attributed to the Rush
medical students was not admissible under the bylaws. See Pulido
v. St. Joseph Memorial Hospital, 191 Ill. App. 3d 694, 701-02,
547 N.E.2d 1383 (1989) (admission of testimony that was arguably
hearsay at a suspension hearing did not violate an identical
bylaw concerning admission of evidence). The testimony from Drs.
Goodman and Hauge demonstrated a pattern of student complaints
against Dr. Dookeran. Contrary to Dr. Dookeran's argument, the
hearing committee was under no obligation to credit his
explanation that the complaints were the result of a economic
concerns he raised regarding the Rush program, which Drs. Goodman
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and Hauge both favored, and that his removal was precipitated by
that conflict. The hearing committee was free to rely upon the
testimony of Drs. Goodman and Hauge to support its finding that
Dr. Dookeran "failed to provide clear and convincing evidence
that he did not act unprofessionally toward medical students from
Rush." See Gaston, 375 Ill. App. 3d at 23, citing Ahmad, 365
Ill. App. 3d at 162.
We are also unpersuaded by the challenge to Dr. Hauge's
testimony that Dr. Dookeran "insulted and berated" her when she
declined to add Dr. Dookeran and Dr. Zaren as co-authors of a
study she sought approval for, which the two declined to give.
Although Drs. Dookeran and Zaren testified that they did not make
any inappropriate requests, the hearing committee was free to
resolve this conflict in testimony in favor of Dr. Hauge.
Gaston, 375 Ill. App. 3d at 23, citing Ahmad, 365 Ill. App. 3d at
162. Further, Dr. Dookeran provided no evidence contradicting
Dr. Hauge's testimony that he later berated her in a telephone
call about her study. Absent conflicting testimony, the hearing
committee was free to credit Dr. Hauge's testimony that Dr.
Dookeran berated her as another example of Dr. Dookeran's
unprofessional behavior.
Dr. Dookeran next challenges the committee's finding that he
acted unprofessionally toward CMS medical students, which the
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committee found was not overcome by clear and convincing
evidence. Dr. Dookeran essentially argues that the hearing
committee should have taken as true his testimony that he
resigned his position as a CMS internal coordinator because it
required too much work and his testimony that Dr. Apantaku never
contacted him about a series of complaints from students
concerning his unprofessional behavior. Again, it was for the
committee to decide which of the conflicting versions it found
credible and, once again, the committee found against the version
offered by Dr. Dookeran. Gaston, 375 Ill. App. 3d at 23, citing
Ahmad, 365 Ill. App. 3d at 162. Dr. Apantaku testified that
several students complained that Dr. Dookeran publicly berated
them, and when she called Dr. Dookeran to discuss the complaints,
he resigned. She specifically recalled an incident where Dr.
Dookeran called her and wanted a student removed because "the
student wasn't wearing an appropriately clean white coat." Dr.
Dookeran's argument that the letter written by Roderick Hart was
explained away by a negative evaluation he received from Dr.
Dookeran does not discredit the remaining evidence supporting the
hearing committee's conclusion that Dr. Dookeran acted
unprofessionally in his role as CMS's internal coordinator.
Next, Dr. Dookeran contends he overcame by clear and
convincing evidence the committee's finding that he displayed
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"abusive and unprofessional behavior" on May 10, 2004, in yelling
for fixative outside an operating room. In this instance, Dr.
Dookeran's position is well taken. While nurses Supol and Jonson
each testified that Dr. Dookeran started "yelling" for fixative,
physician's assistant Wendy Rogowski testified only that Dr.
Dookeran said that fixative "was needed now in a firmness." None
of the testimony indicated that Dr. Dookeran used inappropriate
language or berated any specific person. He wanted fixative,
which should have been stocked in the operating room, quickly in
order to properly complete a procedure on a patient. The
manifest weight of the evidence does not support that Dr.
Dookeran acted unprofessionally in what two witnesses
characterized as "yelling" but another witness described as
"firmness," for fixative to finish surgery for his patient's
comfort and safety. However, this questionable finding does
little to undercut the evidence demonstrating a pattern of
unprofessional behavior on other occasions.
The next issue Dr. Dookeran raises concerns Dr. Walter's
allegations. Dr. Dookeran attempts to justify the timekeeping
requirements he placed on Dr. Walter, ignoring the testimony that
no such requirements have ever been placed upon scientific
officers at Stroger. Dr. Dookeran repeatedly asks us to credit
his witnesses over Dr. Walter. He again presents Dr. Zaren's
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testimony that Dr. Walter fabricated his testimony that Dr.
Dookeran requested contributions to his personal bank account.
He also emphasizes administrator Radeke's testimony that Dr.
Dookeran did not go on a "tirade" about the memo Dr. Walter wrote
asking for clarification of Dr. Dookeran's personal contribution
request. Once again, we decline Dr. Dookeran's implied
invitation that we substitute our assessment of the evidence for
the hearing committee's assessment that Dr. Walter's testimony
credibly demonstrated that Dr. Dookeran behaved unprofessionally.
Gaston, 375 Ill. App. 3d at 23, citing Ahmad, 365 Ill. App. 3d at
162.
Dr. Dookeran next disputes the hearing committee's finding
that clear and convincing evidence was not marshaled to overcome
the finding that Dr. Dookeran acted in an abusive and
unprofessional manner toward Dr. Oana. Dr. Dookeran's argument
again highlights the conflict in the evidence. He relies on the
testimony of two nurses that did not see him yell at Dr. Oana
when she did not respond to repeated pages asking her to join him
in surgery. However, Dr. Oana's letter indicated that Dr.
Dookeran acted unprofessionally. That Dr. Oana was still willing
to work with Dr. Dookeran following the incident does not prove
that the incident never occurred. Dr. Dookeran's reliance upon a
memo from Dr. Bass, who investigated the incident nearly a month
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later, is misplaced; the memo does not absolve Dr. Dookeran of
wrongdoing, but merely acknowledges that Dr. Oana and the two
nurses had different perceptions of the incident and that more
official channels of investigation, outlined in the bylaws and
utilized in this case, are required to resolve such conflicts in
perception. Further, Dr. Dookeran offers no challenge to Dr.
Greager's testimony that he received reports of several other
incidents of Dr. Dookeran's unprofessional behavior; it appears
Dr. Dookeran has abandoned his trial testimony that the
complaints were made in retaliation for an alleged altercation
between Dr. Greager and Dr. Dookeran's staff. We find no basis
to overturn these findings by the hearing committee.
Finally, Dr. Dookeran challenges the hearing committee's
reliance upon Dr. Mayefsky's testimony that Dr. Dookeran
"exploded in fury" during his interview with the peer review
committee, pointing to Dr. Kern's conflicting testimony that Dr.
Dookeran only became "somewhat defensive." Once again, the
hearing committee was free to resolve this conflict in the
evidence by crediting Dr. Mayefsky's testimony. Gaston, 375 Ill.
App. 3d at 23, citing Ahmad, 365 Ill. App. 3d at 162.
We note that neither during the hearing nor on appeal has
Dr. Dookeran challenged the testimony of nurse Celine Drwiega
that on two specific occasions she was subjected to Dr.
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Dookeran's "verbal abuse and bullying." Dr. Dookeran also does
not attempt to explain the testimony of Stroger's director of
quality assurance, Susanne Klein, who testified that an Illinois
Department of Public Health surveyor reported his unprofessional
behavior during a surgery in 2004.
Based on our review of the record, the evidence presented at
the hearing supported a finding that Dr. Dookeran engaged in a
pattern of "abusive or unprofessional behavior," separate and
apart from his failure to disclose the Mercy reprimand on his
2002 reappointment application.
Denial of Reappointment
We now turn to the second stage of our inquiry: whether the
facts provided the Cook County Board with a sufficient basis for
Dr. Dookeran's discharge. Applegate, 335 Ill. App. 3d at 1062,
citing Grames, 254 Ill. App. 3d at 204-05.
Cook County contends that the denial of Dr. Dookeran's
reappointment application should be sustained in light of the
highly deferential standard of review, providing for reversal
only if the decision is arbitrary or unreasonable. Dr. Dookeran
responds that Cook County committed a due process violation by
denying his reappointment based on what he characterizes as an
accidental omission in his previous reappointment application
regarding the Mercy reprimand and unreliable evidence that he
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engaged in abusive and unprofessional behavior at Stroger, which
he contends, even if true, does not demonstrate that his behavior
in any way affected patient care. On cross-appeal, he argues
that the competent evidence was insufficient to support any
suspension of his clinical privileges, an argument rejected by
every reviewing committee at Stroger and by the circuit court
below.
The Cook County Board's denial of reappointment as a
sanction for Dr. Dookeran's omission of the Mercy reprimand on
his 2002 reappointment application and his unprofessional conduct
while at Stoger is subject to reversal only if it was arbitrary
or unreasonable. Applegate, 335 Ill. App. 3d at 1062, citing
Merrifield v. Illinois State Police Merit Board, 294 Ill. App. 3d
520, 530, 691 N.E.2d 191 (1998); Evers, 247 Ill. App. 3d at 729,
citing Mauer, 90 Ill. App. 2d at 413. "The proper test is not
whether the reviewing court would have imposed a lesser sanction
if it were making the decision in the first place, but whether,
in view of the circumstances, the agency acted unreasonably or
arbitrarily in rendering its decision." Hickey v. Riera, 332
Ill. App. 3d 532, 547-48, 774 N.E.2d 1 (2001), citing Edwards v.
Illinois Racing Board, 187 Ill. App. 3d 287, 293, 543 N.E.2d 172(1989).
Reviewing courts defer to an administrative agency's
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"expertise and experience" in determining the appropriateness of
sanctions. Ulysse v. Lumpkin, 335 Ill. App. 3d 886, 893, 781
N.E.2d 415 (2002), citing Abrahamson v. Illinois Department of
Professional Regulation, 153 Ill. 2d 76, 99, 606 N.E.2d 1111(1992). Illinois courts have traditionally refused to review
staffing decisions at private hospitals with only limited
exceptions. Goldberg, 371 Ill. App. 3d at 601-02. " ' "The
judicial reluctance to review these internal staff decisions
reflects the unwillingness of courts to substitute their judgment
for that of hospital officials with superior qualifications to
consider and decide such issues." ' " Goldberg, 371 Ill. App. 3d
at 602, quoting Garibaldi v. Applebaum, 194 Ill. 2d 438, 452, 742
N.E.2d 279 (2000), quoting Adkins v. Sarah Bush Lincoln Health
Center, 129 Ill. 2d 497, 507, 544 N.E.2d 733 (1989).
The parties dispute whether Dr. Dookeran had a property or
liberty interest in his 2004 reappointment so as to trigger due
process protection. We find no reason to resolve the dispute
because, as Dr. Dookeran readily admits, the denial of his
reappointment application raises due process concerns only when
the decision is shown to be arbitrary or capricious, the same
standard applied to hospital staffing decisions in Illinois.
Evers, 247 Ill. App. 3d at 729, citing Mauer, 90 Ill. App. 2d at
413. Because the standard is identical, it follows that if we
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find the Cook County Board's action is not arbitrary or
capricious, Dr. Dookeran's due process claim also fails. See
Lapidot v. Memorial Medical Center, 144 Ill. App. 3d 141, 494
N.E.2d 838 (1986)
Lapidot, upon which Cook County relies, is instructive. In
that case, the plaintiff's medical staff privileges were revoked
after the defendant hospital discovered that in his application,
the plaintiff falsely stated that his privileges had never been
suspended, diminished, or revoked at another hospital. Lapidot,
144 Ill. App. 3d at 142. The application form specifically
stated that "any significant misstatements and/or admissions from
this application constitute cause for summary dismissal."
Lapidot, 144 Ill. App. 3d at 150. The court noted that "false
answers on applications for employment have repeatedly been
considered proper grounds for dismissal in various other
contexts." Lapidot, 144 Ill. App. 3d at 151, citing Munoz v.
Civil Service Comm'n, 32 Ill. App. 3d 1052, 337 N.E.2d 344(1975), Roundtree v. Board of Review, 4 Ill. App. 3d 695, 281
N.E.2d 360 (1972), Price v. Civil Service Board, 123 Ill. App. 2d
2, 259 N.E.2d 613 (1970). The court held that in the context of
medical services providers, false answers also constituted proper
grounds for dismissal. Accordingly, the hospital "was within its
rights in terminating staff privileges for what it considered to
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be a material misrepresentation." Lapidot, 144 Ill. App. 3d at
150.
Dr. Dookeran's reappointment application contained nearly
identical language to the application form in Lapidot--"omission
of information may be grounds for rejection or termination." In
Lapidot, the doctor's failure to provide the required information
on the application was deemed a denial of the existence of past
sanctions. Lapidot, 144 Ill. App. 3d at 142. In the instant
case, Dr. Dookeran was found to have "willfully falsified" his
2002 reappointment application in failing to disclose the Mercy
reprimand. In an attempt to avoid the application of the holding
in Lapidot to his situation, Dr. Dookeran stresses that in
Lapidot there were also allegations of improper patient care
against the physician. Lapidot, 144 Ill. App. 3d at 150-51.
That there were additional grounds to find against the plaintiff
in Lapidot provides no basis to place Dr. Dookeran beyond the
holding in Lapidot.
The hearing committee's factual findings make clear that Dr.
Dookeran engaged in abusive and unprofessional conduct in his
interactions with students, colleagues, and staff at Stroger.
Even if we were to find a basis to question these findings, which
we do not, the Lapidot court made clear that a material
misrepresentation on an application alone can support a dismissal
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or, in this case, the rejection of Dr. Dookeran's reappointment
application. Lapidot, 144 Ill. App. 3d at 151.
Dr. Dookeran argues that omission of the Mercy reprimand
from his 2002 reappointment application was de minimus,
especially in light of his later disclosure of that information
in 2004. He further contends that his alleged unprofessional
behavior, even if it occurred, did not jeopardize patient care
and thus did not warrant sanctions.
We first point out that, even if Dr. Dookeran's actions did
not directly affect patient care, the bylaws provide that
corrective action against a practitioner is appropriate when
either patient care is endangered or the practitioner's behavior
is "lower than the ethical or other professional standards of the
medical community." As noted above, the evidence presented at
the hearing was more than sufficient to support the conclusion
that Dr. Dookeran berated and often acted in a bullying manner
with various members of the Stroger community, behavior that
could properly be considered unprofessional and worthy of
sanctions. Thus, Dr. Dookeran's argument on cross-appeal that no
sanction of any sort was justified is simply not supported by the
record.
Further, we find no basis to question the Cook County
Board's decision to deny reappointment. See Applegate, 335 Ill.
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App. 3d at 1062. It is true that suspension or revocation of Dr.
Dookeran's staff membership was the most severe sanction the
bylaws permitted the hearing committee to recommend. However,
the variation between the recommendations of the peer review
committee, the EMS, and the hearing committee demonstrates the
difficulty of determining the appropriate sanction even amongst
experienced practitioners in the medical field. Given that
difficulty, it is unclear how judicial intrusion into the Cook
County Board's final decision can be justified given our lack of
medical expertise or knowledge of the subtleties that might
warrant one sanction over another. Ulysse, 335 Ill. App. 3d at
893, citing Abrahamson, 153 Ill. 2d at 99; Goldberg, 371 Ill.
App. 3d at 602, citing Garibaldi, 194 Ill. 2d at 452, citing
Adkins, 129 Ill. 2d at 507. The wiser course, in a case where
there was ample evidence that Dr. Dookeran's professional conduct
warranted a sanction, is to uphold the sanction the Cook County
Board has determined is both reasonable and within the bylaws of
Stroger hospital.
We reverse Judge Pantle's order and uphold the denial of Dr.
Dookeran's 2004 reappointment application, thereby terminating
his employment at Stroger.
CONCLUSION
A series of investigations by various administrative
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committees at Stroger hospital revealed that Dr. Dookeran
falsified his 2002 reappointment application by failing to
disclose an official reprimand from his previous employer and
that Dr. Dookeran was involved in a series of incidents of
abusive and unprofessional behavior. The testimony introduced
before the Stroger hearing committee was more than sufficient to
demonstrate the falsification and the improper conduct engaged in
by Dr. Dookeran. Based upon the findings of fact issued by the
hearing committee, the Cook County Board's decision to deny Dr.
Dookeran's 2004 reappointment application was not arbitrary or
capricious. We uphold the Cook County Board's considered
judgment.
Circuit court reversed; Board affirmed.
PATTI and LAMPKIN, JJ., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
_________________________________________________________________
KEITH DOOKERAN,
Plaintiff-Appellee
and Cross-Appellant,
v.
THE COUNTY OF COOK,
Defendant-Appellant
and Cross-Appellee.
________________________________________________________________
No. 1-08-1426
Appellate Court of Illinois
First District, First Division
Filed: December 14, 2009
_________________________________________________________________
JUSTICE GARCIA delivered the opinion of the court.
PATTI and LAMPKIN, JJ., concur.
_________________________________________________________________
Appeal from the Circuit Court of Cook County
Honorable Kathleen M. Pantle, Judge Presiding
_________________________________________________________________
For PLAINTIFF- Jabob Pomeranz, Esq.
APPELLEE AND Cornfield and Feldman
CROSS-APPELLANT 25 East Washington Street, Suite 1400
Chicago, Illinois, 60602-1803
For DEFENDANT- Patrick T. Driscoll, Jr., Chief, Civil Action Bureau
APPELLANT AND Arleen C. Anderson,
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CROSS-APPELLEE RICHARD A. DEVINE, State's Attorney, Cook County
500 Richard J. Daley Center
Chicago, Illinois 60602
41