dissenting:
Because I disagree with the majority’s conclusion that the agreed order is ambiguous in the scope of the acts prohibited, I respectfully dissent.
Illinois public policy strongly favors freedom of contract, and courts will not declare a contract violative of public policy unless it expressly contravenes the law or a known public policy of this state. Schniederjon v. Krupa, 130 Ill. App. 3d 656, 659, 474 N.E.2d 805, 808 (1985). In upholding the validity of a restriction by contract upon the right to practice medicine, the supreme court in Canfield v. Spear, 44 Ill. 2d 49, 52, 254 N.E.2d 433, 435 (1969), found that no legitimate public interest is adversely affected by such contract, inasmuch as the doctor could practice elsewhere and other doctors would move their practices to the area to alleviate any shortage. The parties here were free to draft any provisions they liked for purposes of resolving their dispute by means of the agreed order. Had they wished merely to prohibit Scaglia from the "practice of medicine,” a concept the majority itself declines to define, they might readily have done so. Instead, the agreed order prohibited Scaglia from being "involved in the business of providing urological medicine services,” a limitation necessarily broader than the "practice of medicine.”
The trial court found the following violations proved beyond a reasonable doubt:
(1) "[Scaglia] is listed in the phone book, the Bloomington phone book, as Urologic Surgery Associates.”
(2) Scaglia is also personally separately listed in the same book as "Dr. Bennett Scaglia.”
(3) He employs two registered nurses who work out of his home.
(4) Scaglia’s wife, when she changed address with the Blooming-ton Post Office, "indicated it was a business, Urologic Surgery Associates, moved from 1505 Eastland Drive, Bloomington, to 3206 Viney Lane, Bloomington.”
(5) Scheduling of work was performed at the office. Nurse Nydegger indicated she did reception work for Scaglia 50% in Bloomington and 50% in Ottawa.
(6) Patient files are kept in Bloomington. Prescription forms are mailed from the Bloomington office.
Provisions of the Medical Practice Act of 1987 relating to the unauthorized practice of medicine describe the practice of medicine as the "diagnosis or treatment of physical or mental ailments” (225 ILCS 60/49(i) (West 1994)), and also include conduct of a person who "attaches the title Doctor, Physician, Surgeon, [or] M.D. *** to his or her name indicating that he or she is engaged in the treatment of human ailments or conditions as a business.” 225 ILCS 60/49(v) (West 1994). The trial judge could reasonably find that defendant’s maintenance of a telephone listing in his professional capacity constituted providing urological medicine services and, therefore, the provision of medical services within the restricted area. Patient charts and files are necessarily integral to the diagnosis and treatment of patients, and the maintenance of files in the Bloomington home office could also reasonably be found to constitute the "business of providing urological medicine services.” Similarly, defendant employs two nurses in the Bloomington home office who operate under his direction and control and act as a conduit for defendant’s prescription of medication and other medical treatment. Defendant personally provided medical advice and prescribed treatment from the Bloomington home office in response to. patient calls to that location. Applying the manifest weight standard, it is clear defendant violated the agreed order.
The parties bargained for the restriction of "being involved in the business of providing urological medicine services.” That Scaglia would pay that agreement only cursory heed, by limiting his physical contact with patients to the Ottawa office, evidences his disdain for the broader reach of the agreement he voluntarily entered into. The majority’s constriction of the agreed order to the prohibition of face-to-face, physician-patient contact, is not supported by the language the parties chose in framing their consensus.
Curiously, the majority does not contend a restriction on the practice of medicine, a course of conduct it agrees involves the diagnosis and treatment of physical ailment, is against public policy — but it becomes so when there is a restriction on doctor-patient telephonic contact for that same purpose.
The trial court’s finding of contempt for violation of the agreed order was not against the manifest weight of the evidence. I dissent.