Dookeran v. County of Cook

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,

23
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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

24
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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.

25
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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

26
1-08-1426

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

27
1-08-1426

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

30
1-08-1426

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

32
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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

33
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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

35
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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,

40
1-08-1426

CROSS-APPELLEE RICHARD A. DEVINE, State's Attorney, Cook County
500 Richard J. Daley Center
Chicago, Illinois 60602

41