dissenting:
I respectfully disagree with the majority. Based on my careful review of the evidence, much of which the majority fails to discuss, I cannot join in the majority opinion. For the reasons set forth below, I would reverse the judgment of the trial court.
It is important to note at the outset that defendant was convicted of performing a pelvic examination upon the complainant without a medical license. The majority concedes that an unlicensed individual with sufficient knowledge and training may properly perform a pelvic examination under the direction or supervision of a licensed physician. (See Biogenetics, Ltd. v. Department of Public Health (1982), 89 Ill. 2d 92.) Defendant contends that his conviction should be reversed because the conduct for which he was convicted did not constitute the practice of medicine and did not violate the Medical Practice Act (Ill. Rev. Stat. 1987, ch. 111, par. 4400 — 49). In support of this contention, defendant offers numerous arguments, two of which I will discuss and also which I believe are implausibly rejected by the majority.
Defendant argues that Dr. Obasi authorized him to perform complainant’s pelvic examination. The majority rejects this argument, relying heavily on Dr. Obasi’s testimony. However, I agree with defendant that Dr. Obasi’s testimony that he never authorized defendant to perform pelvic examinations on any of his patients must be viewed with great suspicion. First, copies of an agreement between defendant and Dr. Obasi were introduced which stated that all medical services performed at the Friendship Medical Center (FMC) were under Dr. Obasi’s exclusive control, and that Dr. Obasi had complete responsibility and authority over all medical procedures and staff. Second, Dr. Obasi testified that he was told by Investigator Harris that cooperating in defendant’s investigation may affect the charges brought against himself. I cannot join in the majority’s attempt to discount Dr. Obasi’s strong motivation to testify less than truthfully.
Notwithstanding the inherently suspicious nature of Dr. Obasi’s testimony, other evidence presented at trial casts strong doubt on Dr. Obasi’s testimony that he never authorized defendant to perform pelvic examinations. Dr. Moragne, a licensed doctor at FMC, testified that he authorized defendant to perform pelvic examinations and give injections to his patients. Peggy Broadway testified at trial that while defendant performed a pelvic examination upon her, Dr. Obasi was present in the examining room.
Additionally, complainant testified that prior to receiving a second pelvic examination on June 9, 1989, defendant gave her an in-, jection in Dr. Obasi’s presence. Then prior to performing complainant’s abortion, Dr. Obasi discussed the length of gestation with defendant indicating that Dr. Obasi knew defendant had also performed a pelvic exam upon the complainant. Given the unsatisfactory nature of the evidence upon which defendant’s conviction rests, even when viewed in the light most favorable to the prosecution, I am constrained to find that a reasonable doubt exists as to defendant’s guilt. People v. Collins (1985), 106 Ill. 2d 237, 261.
Likewise, I cannot agree with the majority’s conclusion that Biogenetics, Ltd. v. Department of Public Health (1982), 89 Ill. 2d 92, is inapposite here. In the present case, there is no dispute that defendant’s conduct was virtually identical to that of Dr. Khan as described in Biogenetics. In Biogenetics, our supreme court emphatically held that none of the activities for which Dr. Khan was charged constituted the practice of medicine when performed under the direct supervision of a licensed physician. (Biogenetics, 89 Ill. 2d at 98.) Consequently, Biogenetics should control here, especially since the agreement between defendant and Dr. Obasi required that FMC be operated in accordance with the Ambulatory Surgical Treatment Center Act (the Act). Moreover, the fact that FMC may not have been licensed pursuant to the Act is insignificant when compared to the admitted similarities between defendant’s and Dr. Khan’s conduct.
In spite of Biogenetics, the majority would affirm defendant’s conviction because he identified himself as a doctor and announced his findings to complainant and her mother. However, defendant was neither charged with nor convicted of holding himself out as a physician. To the contrary, defendant was convicted of performing a pelvic examination without a medical license. Strong and convincing evidence presented at trial suggests that defendant was authorized to perform complainant’s pelvic exam. Given the import of this evidence, and in light of Biogenetics, I cannot agree that defendant was proved guilty beyond a reasonable doubt.
Defendant also argues on appeal that his performance of a pelvic examination was not proscribed by the Medical Practice Act (Ill. Rev. Stat. 1987, ch. 111, par. 4400 — 49). In rejecting this argument, the majority states “the [Medical Practice] Act as it existed at the time of defendant’s conduct barred the diagnosis of ailments but not conditions.” (250 Ill. App. 3d at 145.) The majority further reasons that pregnancy is a condition, not an ailment. If this is so, then defendant’s argument should prevail. However, citing Dr. Schink’s testimony that pelvic examinations reveal whether a pregnancy is normal or ectopic, the majority strains to conclude that pelvic examinations constitute diagnosing an ailment. Yet, defendant testified that he performed complainant’s pelvic examination under Dr. Obasi’s direction to determine only whether complainant was pregnant and, if so, the gestational age. No evidence contradicted defendant’s testimony in this regard.
Lastly, I would note, as has the majority, that no Illinois court has held that performance of a pelvic examination constitutes the practice of medicine when done without direction. The only Illinois court faced with the question, Biogenetics, Ltd. v. Department of Public Health (1982), 89 Ill. 2d 92, declined to answer it. I am persuaded neither by the facts of this case nor by the majority opinion that this court should answer the question in the affirmative.
For the foregoing reasons, I would reverse the judgment of the circuit court.