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1-99-3099

JUSTICE REID delivered the opinion of the court:

This appeal flows from entry by the circuit court of Cook County of an order reversingthe final administrative decision of the Acting Director of the Illinois Department of ProfessionalRegulations (IDPR) to reprimand the medical license of Dr. Richard Goldberg.

THE FACTS

On July 25, 1988, the IDPR filed a complaint against Dr. Goldberg, a psychiatristlicensed to practice in the State of Illinois. The complaint alleged that he committed acts ofmisconduct while treating Carolyn B. for an eating disorder and depression. The IDPR deemedthese acts grounds for revocation of his medical license under sections 22(A)(4), (A)(5), and(A)(20) of the Medical Practice Act of 1987, (Medical Practice Act) (225 ILCS 60/22(A)(4),(A)(5), (A)(20) (West 1998)). The IDPR originally sought to have Dr. Goldberg's licenserevoked, suspended or otherwise disciplined. The complaint was answered by Dr. Goldberg onSeptember 9, 1988.

An administrative hearing was convened on December 5, 1988. The IDPR called aswitnesses Carolyn B., Dr. Goldberg as a hostile witness, IDPR Investigator Judith Johnson, andDr. Judith Davis, as both an expert witness and a psychiatrist who treated Carolyn B. after Dr.Goldberg. At the end of these witnesses' testimony, the matter was stayed for approximatelynine years while Dr. Goldberg sued Dr. Davis to turn over medical records in her possession. The litigation between Dr. Goldberg and Dr. Davis was appealed to this court and, ultimately, tothe Illinois Supreme Court. The matter was remanded back to the circuit court for an in camerainspection of the records. After reviewing the records, the circuit court released them. OnAugust 26, 1997, the hearing recommenced before a different hearing officer. Dr. Goldbergcalled six witnesses, including himself. Also testifying were character witnesses Dr. EdwardGoldberg, Joyce Washington, Dr. Samuel Libert, and Dr. Peter Giovacchini. Dr. EdwardWolpert testified as an expert witness. Dr. Goldberg began treating Carolyn B in June 1987. Atthat time, he had been a licensed psychiatrist in the State of Illinois for approximately nine years. He diagnosed Carolyn B. with bulimia, borderline personality disorder and dental problemssecondary to bulimia. He noted that her history contained some periods of indiscriminate sexualactivity. According to Dr. Goldberg, Carolyn B. reported performing sexual favors for herprevious psychiatrist in exchange for gifts or loans of money. During treatment she confessed astrong attachment to Dr. Goldberg. She also believed that he returned her feelings, which in heropinion were genuine.

During the treatment, Carolyn B. stated that Dr. Goldberg did not know what it was liketo binge on food. Dr. Goldberg suggested that she show him. He claims the two arranged forhim to be present at her apartment when she binged and subsequently purged. On October 16,1987, Dr. Goldberg went to her apartment. He watched her eat quantities of ice cream, cornchips, and maple syrup. Then he watched her vomit.

Dr. Goldberg acknowledged that he had treated other patients with bulimia, but neverwent to their homes. He also testified that he did not watch any of his other bulimic patients eator vomit as part of their treatment. He admitted there was another patient whose home he wentto for a therapeutic session. He claimed he went to Carolyn B's house to observe her claimednumbness or altered state of being when she binged. He felt this might be indicative of ahypnoid or dissociative state, which he believed could not be properly observed any other way.

In a session on October 20, 1987, Carolyn B. told Dr. Goldberg that she would doanything he wanted for money and was very aroused when he hugged her. Carolyn B. claimedshe could feel that he would get aroused during the hugs. He responded that he did not have sexwith his patients. He also responded that this is why he did not like the idea of hugging hispatients, in that it would ultimately be unsatisfying for her. Dr. Goldberg claims that CarolynB.'s attraction for him became so intense that he had to turn her over to another therapist.

On the evening of October 22, 1987, Carolyn B. paged Dr. Goldberg while he was diningwith colleagues. When he called her, she indicated that she was unhappy with the referrals andneeded to see him right away. She claims she suggested meeting at his office, but that he did notwant to do that. According to Carolyn B., Dr. Goldberg offered to meet in the lobby of herbuilding to talk for a few minutes. When he arrived, he parked in a loading zone. Since thebuilding would not allow him to remain parked there, Carolyn B. got into the car and they drovearound looking for a place to park. They parked on a street within Lincoln Park, where theyremained for 30 to 60 minutes.

Carolyn B. testified they talked about her consultations with the other doctors. Sheclaims he told her that he was the doctor who could help her better than anyone else. Carolyn B.claims she protested that she was too attracted to him to be treated by him. She also claims sheasked Dr. Goldberg if they could be just friends, at which time he leaned in and french-kissedher. Carolyn B. claims she told him she wanted to physically demonstrate her affection anddesire for him. He declined, supposedly responding that he would be putting not only his careeron the line but his life as well.

On October 23, 1987, Carolyn B. claims she and Dr. Goldberg went to one of his officesfor sexual purposes. During this encounter, Carolyn B. claims they engaged in mutual acts oforal copulation. When they tried to have intercourse, she claims he lost his erection. Dr.Goldberg denies having sex with Carolyn B.

Judith Johnson testified that Dr. Goldberg characterized his visit to Carolyn B's home asa research project. Dr. Goldberg denied the existence of any research project related to what hewas doing with Carolyn B. Johnson testified to her understanding of what took place in CarolynB's apartment. Johnson claimed that Dr. Goldberg went to the patient's home, spoon-fed her icecream and other food, then watched her vomit. Dr. Goldberg denied that he spoon-fed the icecream, claiming he was there to observe her actions and mental state during a binge.

Dr. Judith Davis testified that, in her opinion, Carolyn B. had developed an erotictransference to Dr. Goldberg. Dr. Davis acknowledged that, when the wishes of patients withcharacter disorders are not met, either because their expectations are unrealistic or the failure ofthe object of their affection to respond as they desire, they can experience massive feelings ofrage. Dr. Davis also testified that, in her professional opinion, bulimia does not require a patientto eat and vomit in a therapist's presence. In all the time Dr. Davis treated Carolyn B., she nevermade her eat just to watch her vomit. Although Dr. Davis admitted that more seriously illpatients sometimes require home visits, she did not feel Carolyn B. was such a patient. Dr. Davisalso testified that she saw no point in watching someone eat and vomit. Dr. Davis also testifiedthat picking up a patient in the car and driving and parking with her is inappropriate and violatedprofessional standards in so doing. On cross-examination, Dr. Davis confessed that she hadlimited experience in treating patients with disorders similar to Carolyn B. Dr. Davis admittedthat she was only trained in the psychiatric modality of psychoanalysis. Her familiarity witheating disorders was also limited, as she admitted to reading a number of professional articlesand "psychiatric updates." Cross-examination also got Dr. Davis to admit that she was basicallynot familiar with professional literature in the area of psychiatric home visits. While she wasfamiliar with literature in the area of personality disorders and borderline mental states, Dr. Davisadmitted to taking no post-graduate training in the area, other than her work at the PsychoanalyticInstitute. Further cross-examination revealed that Dr. Davis never requested Dr. Goldberg'srecord of the treatment, instead relying exclusively on Carolyn B's version of events. Clearly,Dr. Davis believed Carolyn B.'s version of the events during her treatment by Dr. Goldberg.

Carolyn B. next testified that she and Dr. Goldberg had discussed his making a homevisit. They also discussed her attraction for him which she found frustrating. At the time shemade arrangements with Dr. Goldberg to come to her home, Carolyn B. testified she still had herfeelings of attraction.

Dr. Wolpert next testified as an expert for Dr. Goldberg. He testified that the home visitwas not unprofessional, though it was a dangerous thing to do. He also felt that Carolyn B. had"trapped" Dr. Goldberg into making the home visit.

Dr. Edward Goldberg next testified. He is not related to Dr. Richard Goldberg. He is thehospital administrator at two facilities who has become familiar with Dr. Goldberg's reputation. He testified he believes Dr. Goldberg has solid professionalism and responsiveness. Anyfeedback Dr. Edward Goldberg received about Dr. Goldberg was positive. Also testifying aspositive character witnesses for Dr. Goldberg were Joyce Washington, Dr. Samuel Libert and Dr.Peter Giovacchini.

The hearing officer issued his findings and recommendation with the Illinois StateMedical Disciplinary Board (Disciplinary Board or Board) on March 11, 1998. In that document,the hearing officer concluded that the Department had failed to prove its case against Dr.Goldberg by clear and convincing evidence. The hearing officer found Dr. Goldberg to be morecredible than Carolyn B. and concluded that the kissing and sexual episodes never took place. The hearing officer also found convincing Dr. Wolpert's expert testimony that Dr. Goldberg didnot violate professional standards when he went to Carolyn B's home to watch her binge andpurge. Accordingly, the hearing officer recommended that the charges against Dr. Goldberg bedropped and that his license remain unblemished and in good standing.

On May 6, 1998, the Disciplinary Board issued its findings of fact, conclusions of lawand recommendation to the Director of the Department. In that document, the DisciplinaryBoard disagreed in part with the hearing officer's conclusions of law. The Disciplinary Boardagreed that the kissing and sexual episodes were not proven by clear and convincing evidence. The Disciplinary Board noted that Dr. Goldberg had admitted that he met with Carolyn B.outside his office, went to her house and observed her binge and purge, and met with her anothertime in his car. The Disciplinary Board found this to be clear and convincing evidence that heviolated the Medical Practices Act. The Disciplinary Board recommended to the Director thatDr. Goldberg's medical license be reprimanded.

On May 20, 1998, Dr. Goldberg filed a request for a rehearing on that part of theDisciplinary Board's recommendations which conflicted with those of the hearing officer. OnDecember 10, 1998, the request was denied and the Disciplinary Board's recommendations wereadopted by the Acting Director.

Dr. Goldberg filed his complaint for administrative review and injunctive relief onJanuary 5, 1999. He asked the circuit court to reverse the Acting Director's decision finding thathe violated the Medical Practices Act and reprimanding his license. The trial court granted anemergency stay. The Department filed its response to the complaint for administrative review,including the record. The Department later supplemented the record, at the request of Dr.Goldberg, with articles that had been offered into evidence at the administrative hearing but hadbeen excluded as hearsay.

On July 27, 1999, the trial court reversed the Acting Director's decision to reprimand Dr.Goldberg's medical license. The trial court held that the Acting Director's decision was arbitraryand unreasonable. The trial court also held that Acting Director's findings of fact were againstthe manifest weight of the evidence and conclusions of law were legally erroneous. The trialcourt also concluded that the hearing officer erred in excluding the articles proffered by Dr.Goldberg. The trial court further found that Dr. Davis' testimony was insufficient to support theActing Director's decision.

The IDPR filed this appeal from the circuit court's order, contending: (1) that the ActingDirector's decision to reprimand Dr. Goldberg's medical license was neither against the manifestweight of the evidence nor contrary to law; and (2) that it was not an abuse of the hearingofficer's discretion to exclude from evidence as hearsay various learned articles offered by Dr.Goldberg. For the reasons that follow, we affirm the decision of the trial court.

ANALYSIS

"The Administrative Review Law provides that, in every action to review anadministrative decision, '[t]he findings and conclusions of the administrative agency on questionsof fact shall be held to be prima facie true and correct.'" Terrano v. Retirement Board of thePolicemen's Annuity & Benefit Fund, 315 Ill. App. 3d 270, 274 (2000), quoting 735 ILCS 5/3-110 (West 1998). The decision of an administrative agency is against the manifest weight of theevidence only if the opposite conclusion is clearly evident. Flaherty v. Retirement Board of thePolicemen's Annuity & Benefit Fund, 311 Ill. App. 3d 62, 65 (1999), citing Abrahamson v.Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88 (1992).

"Courts have construed [the Administrative Review Law] to mean that, on administrativereview, it is not a court's function to reweigh the evidence or make an independent determinationof the facts. Rather, the court's function is to ascertain whether the findings and decision of theagency are against the manifest weight of the evidence." Abrahamson, 153 Ill. 2d at 88, citingMurdy v. Edgar, 103 Ill. 2d 384, 391 (1984), Davern v. Civil Service Comm'n, 47 Ill. 2d 469,471 (1970), and Middleton v. Clayton, 128 Ill. App. 3d 623, 630 (1984). "The [hearingofficer's] conclusions of fact are to be accepted on review unless the opposite conclusion isclearly evident." Mason v. Department of Public Health, 326 Ill. App. 3d 616, 622 (2001),citing City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205 (1998).

"An administrative agency's conclusions of law *** areafforded less deference [than its findings of fact] and are reviewedon a de novo basis. [Citation.] When the agency's determinationinvolves a mixed question of fact and law, the applicable standardof review is the clearly erroneous standard, which falls between amanifest weight of the evidence standard and de novo review, soas to give some deference to the agency's experience andexpertise." (Emphasis added.) Swoope v. Retirement Board of thePolicemen's Annuity & Benefit Fund, 323 Ill. App. 3d 526, 529(2001), citing City of Belvidere, 181 Ill. 2d at 205.

Section 22(A) of the Medical Practice Act provides a list of grounds upon which adecision may be based to revoke, suspend or otherwise discipline a medical license. 225 ILCS60/22(A) (West 1998). Of those promulgated grounds, the IDPR sought to penalize Dr.Goldberg for violations of the following subsections:

(A) The Department may revoke, suspend, place onprobationary status, or take any other disciplinary action as theDepartment may deem proper with regard to the license or visitingprofessor permit of any person issued under this Act to practicemedicine, or to treat human ailments without the use of drugs andwithout operative surgery upon any of the following grounds:

(4) Gross negligence in practice under this Act.

(5) Engaging in dishonorable, unethical orunprofessional conduct of a character likely to deceive,defraud or harm the public.

(20) Immoral conduct in the commission of any actincluding, but not limited to, commission of an act ofsexual misconduct related to the licensee's practice." 225ILCS 60/22(A) (West 1998).

The IDPR, under the aegis of the Illinois legislature and with the recommendation of theDisciplinary Board, has adopted rules to define the conduct which runs afoul of the above-identified statutory language. Dishonorable, unethical and unprofessional conduct, in thiscontext, have been defined in the Illinois Administrative Code. See 68 Ill. Adm. Code