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    JAYA KRISHNA DHARMAVARAM, Plaintiff-Appellant, v. THE DEPARTMENT OF PROFESSIONAL REGULATION et al., Defendants-Appellees.
    First District (6th Division)
    No. 1 — 90—2649
    Opinion filed July 5,1991.

      Schwartz & Rubin, of Chicago (Martin J. Rubin, of counsel), for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Susan Fredrick Rhodes, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff, Dr. Jaya Krishna Dharmavaram, appeals from an order of the circuit court which affirmed the decision of the Illinois Department of Professional Regulation (Department) revoking plaintiff’s temporary certificate to practice medicine and denying his application for a permanent license to practice medicine in Illinois. On appeal, plaintiff contends that (1) the decision of the Department was against the manifest weight of the evidence; (2) he was deprived of the right to equal protection; and (3) he was deprived of the right to due process.

The record indicates that plaintiff earned his medical degree in 1981 in India. In 1987, he commenced post-graduate study at Cook County Hospital to obtain training in the field of plastic surgery. At the time plaintiff entered this post-graduate program, he held a temporary certificate to practice medicine at Cook County Hospital, and he had applied for a permanent license to practice medicine in Illinois. In December 1987, the Department brought charges against plaintiff, alleging that he had violated the Medical Practice Act of 1987 (Act) (Ill. Rev. Stat. 1987, ch. 111, par. 4400 — 1 et seq.) in connection with his work at the Cook County Hospital Ambulatory Screening Clinic (ASC).

The Department asserted, inter alia, that plaintiff had violated the Act by performing services beyond those prescribed by and incidental to his program of residency training as authorized by his temporary certificate, by engaging in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public, by engaging in immoral conduct in the commission of any act related to his practice, and by exhibiting a pattern of practice which demonstrated incapacity or incompetence to practice under the Act (Ill. Rev. Stat. 1987, ch. 111, pars. 4400-17, 4400-22(A)(5), (A)20), (A)26)). The Department sought to revoke plaintiff’s temporary certificate to practice and requested that his application for a permanent license be denied.

At an administrative hearing, the Department introduced evidence in support of the charges against plaintiff. The Department presented evidence that the ASC provides medical services to patients whose complaints are of a less serious nature and where the patients do not require admission to the hospital. The Department introduced evidence that plaintiff’s work at the ASC was not prescribed by or incidental to his program of residency training in plastic surgery, but was voluntary and performed by plaintiff in order to earn extra money.

The Department presented the testimony of Mary R., who testified that she went to the ASC on August 10, 1987, because she was suffering from what she believed to be a kidney infection. After waiting several hours, she was treated by plaintiff at the ASC. Mary R. stated that when she entered the examining room, plaintiff hugged her “like I would embrace my mother.” She testified further that it took her several minutes to understand plaintiff’s accent. Plaintiff did not initially ask her about her symptoms or complaints, but asked her about her sexual activity with her husband and about her husband’s nationality. Mary R. stated that plaintiff continually grinned at her during the entire examination and that this behavior was unnerving to her. Mary R. informed plaintiff that she had previously undergone a hysterectomy.

Mary R. also testified that at plaintiff’s instruction, she put on an examining gown and removed only her slacks and underpants. Plaintiff then pinched the nipple of each breast through the gown, her brassiere, and her blouse. Thereafter, plaintiff conducted a vaginal examination while her legs were flat on the table and her feet were extended straight out from her body. Plaintiff did not direct her to place her feet into the stirrups of the examining table. First, plaintiff put a glove on his hand and commented to Mary R. that his fingers were very small. He then placed two or three fingers of his right hand into her vaginal cavity while his other hand rested on the table. Plaintiff manipulated his fingers in and out approximately 10 to 12 times over three to five minutes. Plaintiff did not speak to Mary R. at all during the examination except to comment that she had a very long vaginal canal. Plaintiff never asked Mary R. whether she was experiencing any pain during his examination.

Mary R. testified further that plaintiff removed his fingers from her vaginal cavity, stepped over, kissed her twice on the cheek, and said that she was nice. Mary R. then sat straight up and told plaintiff that a man had just been taken to jail for trying to kiss her. Plaintiff then asked Mary R. whether she had any girlfriends, whether they were married, whether they were pretty, and whether they “fooled around.” Plaintiff repeated these questions about three times.

Mary R. stated that as soon as she was able to get dressed, she “was on the way to the door.” Plaintiff gave her no diagnosis or prescription for her kidney problem. Plaintiff prescribed only vitamins and Tylenol and referred her to the urology clinic. Plaintiff also told Mary R. that he thought she should receive psychiatric treatment for the problem she was experiencing with her kidneys.

Mary R. testified that when she left the examining room, she went directly to one of the nurses to complain that plaintiff had kissed her. After speaking with Dr. Salem, the supervisor of the ASC, Mary R. made a written complaint which accused plaintiff of kissing her twice on the cheek, embracing her, and asking about her girlfriends. Mary R. stated that she did not detail the improprieties of the breast and vaginal examinations because it was then 1 a.m. and she wanted to go home.

Dr. Salem, supervisor of the ASC, testified that Mary R. told him that plaintiff had behaved in an unprofessional manner in that he embraced her and kissed her on the cheek twice. Dr. Salem then told plaintiff that a patient had complained that he had embraced her, kissed her, and asked personal, sexual questions. Plaintiff told Dr. Salem that he kissed Mary R. on the hand and had tried to be courteous. Dr. Salem asked Mary R. whether she would repeat her complaint in the presence of plaintiff, and she agreed. Plaintiff again denied that he had kissed Mary R. Dr. Salem then had Mary R. reexamined by a nurse practitioner. Dr. Salem allowed plaintiff to finish out his work shift, but Salem reported the incident to the director of the ASC the next morning.

Leon Lee, investigator with the Cook County Hospital police department, testified that he interviewed Mary R. over the telephone the day following her examination by plaintiff. During that conversation, Mary R. described the events of the previous day. This account of the examination conducted by plaintiff substantially corroborated Mary R.’s testimony at the administrative hearing. Lee was not questioned whether Mary R. told him that plaintiff had kissed her.

Plaintiff testified that when he met Mary R. she appeared upset, and he hugged her in a motherly fashion and kissed her two times. He stated that he asked all his patients questions regarding their personal life because he wanted to develop a good rapport. He asked questions regarding the nationality of Mary R.’s husband to have a better understanding of her history. Plaintiff denied that he examined Mary R.’s breasts through her clothing and stated that she was wearing only an examining gown, which he pulled down in order to perform the examination. Plaintiff testified that he always offers to do a breast examination on all women patients.

Plaintiff testified further that the stirrups on the examining table were broken, but he did not request another examining room. He told Mary R. that he had small hands to relax her and to show her that he was not going to hurt her. Plaintiff stated that he manipulated his fingers several times in her vaginal canal to determine if there was any discharge, but there was none. He did not use two hands to examine Mary R.’s internal organs because she had told him she had undergone a hysterectomy. Plaintiff testified that he inquired as to Mary R.’s sexual practices and her relations with her girlfriends because he believed that she had difficulty in her relations with men based upon her answers to his questions. He diagnosed Mary R.’s trouble as incontinence and referred her to a urologist and gynecologist for further treatment. In plaintiff’s opinion, Mary R. was not happy to be referred to other doctors after she waited all day to see a doctor for treatment. Plaintiff denied that he kissed Mary R. while she was lying on the examining table, but stated that he kissed her when she entered the examining room.

Tyna T. testified that she went to the ASC on August 10, 1987, complaining of an earache in both ears and of a headache. She stated that plaintiff initially asked her questions about her symptoms, but then began to ask her about personal issues. Plaintiff asked whether she was married, whether she had boyfriends, whether she had sexual relations with men other than her husband, and if she had any children. She told plaintiff that she did not have any children, and he said that he wanted her to have children. Tyna T. thought that it was unusual for plaintiff to ask her these questions, and she thought he would warn her about AIDS or other sexually transmitted diseases, but he never did.

Tyna T. testified further that while plaintiff was asking her these questions, he was caressing her arms and face. He put his hands on her lymph glands and then moved his hands downward. Plaintiff then said that he could not hear her heartbeat and asked her to raise her top. Tyna T. refused to raise her top because her vital signs had been taken by a nurse earlier. After she refused to raise her top, plaintiff fondled her breasts by cupping them with his hands. Tyna T. testified that she was very nervous and embarrassed by this. Plaintiff told her that “she did not look like a Black girl because she did not have a wide nose or large breasts.” Tyna T. testified that these comments were insulting and upsetting to her. Plaintiff continued to rub her arms and neck and to caress her cheek, and Tyna T. pulled away from him.

Tyna T. stated further that plaintiff then took her to another examining room to look into her ears with a light. He told her there was nothing wrong with her ears and sent her back to the first examining room. When plaintiff returned to the first examining room, he closed the door, leaned down, and kissed Tyna T. on the cheek. When she pulled away from him and stood up to leave, plaintiff told her to wait for a prescription. He then prescribed mineral oil and Q-tips. Tyna T. testified that plaintiff never advised her that her ears were impacted with wax. When she left the examining room, Tyna T. warned a waiting patient about the plaintiff.

Plaintiff testified that during his examination of Tyna T., he was looking for needle tracks or indications of IV drug abuse on her arms. He also stated that he palpated her face and sinuses to determine if there was any tenderness. Plaintiff stated further that at his request Tyna T. removed her blouse, and he listened to her heart and lungs. He testified that she gave her permission for a breast examination, but admitted that a breast examination was not related to the patient's complaints of earaches and a headache. Plaintiff stated that because her ears were impacted with wax, he was unable to see anything in Tyna T.’s ears. He told her to wash her ears and to return in a day or two for an ear examination. Plaintiff acknowledged that he told Tyna T. that she was “a nice patient,” and he kissed her on the cheek.

Teresa W. went to the ASC on August 10, 1987, because she believed that she had a vaginal infection. When plaintiff entered the examining room, he shut the door and told her that he thought she was very pretty. Teresa W. testified that although plaintiff spoke with an accent, she did not have any trouble understanding him. When she told plaintiff that she thought she had a vaginal infection, he asked her how many boyfriends she had, when she last had sex, and whether she had oral sex. He then told her to remove her clothes and to get on the examining table. After she removed her clothing, Teresa W. put on an examining gown.

Teresa W. testified further that plaintiff put on some gloves and inserted one or two fingers of his right hand into her vaginal canal and moved his fingers around for one or two seconds. She stated that plaintiff did not touch her with his left hand during the examination. He then moved his fingers to her clitoris and touched it for several seconds. Plaintiff told Teresa W. that she had “big lips” on her vagina. He then moved around to her side and kissed her on the jaw. Plaintiff subsequently touched her breasts just around the nipple, but did not touch any other part of her breasts. When plaintiff stopped touching her nipples, Teresa W. asked whether he was through. Plaintiff said that he was not finished, and he began touching her clitoris again. He then moved to her side and kissed her on the jaw again. Plaintiff then told Teresa W. that she could get dressed, and he left the room while she was dressing.

Teresa W. testified that when plaintiff returned to the examining room, she asked what was wrong with her, and he told her that she had “a lot of germs.” Teresa W. stated that plaintiff never told her that she had gonorrhea.

Plaintiff testified that he conducted a bi-manual pelvic examination of Teresa W. and that his breast examination included her entire breast. He stated that he found Teresa W.’s vaginal lips swollen which indicated possible disease. Plaintiff also stated that he told her that she had gonococcal urethritis, but because she did not understand what that meant, he told her that she had “a lot of germs.” Plaintiff testified that he kissed Teresa W. when she entered the examining room. As she was leaving the room, she was upset so he told her to “be a good girl, you are nice looking, change your life and be good.” He then kissed her on the cheek. Plaintiff denied that he kissed Teresa W. while she was lying on the examining table.

The Department also presented the testimony of Barbara N. and of Linda M., who testified that they were examined by plaintiff and that he exhibited unprofessional and improper conduct during their examinations. The hearing officer found, however, that the evidence given by these two patients did not support a finding that plaintiff’s conduct was violative of the Act.

The Department next introduced the testimony of Dr. Rocco Lobraico as an expert witness. Dr. Lobraico testified that he was a doctor of obstetrics and gynecology and had been practicing medicine since 1941. He stated that he had never kissed a patient, but he was not aware of any written standards prohibiting hugging or kissing patients. Dr. Lobraico reviewed the medical records and testimony of each of the patients who had complained about the plaintiff’s conduct. He testified that in his opinion, plaintiff breached the standards of professionalism and ethics prevailing in Cook County in 1987 in his examination of each of these patients.

Dr. Lobraico testified that it was inappropriate for plaintiff to embrace Mary R. and to question her about her sexual history while ignoring her complaints regarding her kidneys. He also stated that the breast examination performed by plaintiff was improper. Plaintiff should not have examined Mary R.’s breasts through her clothing and should not have pinched only the nipples. Plaintiff should have examined the entire breast tissue with two hands to see if there were any tumors or breast tenderness.

Dr. Lobraico also indicated that the pelvic examination performed by plaintiff on Mary R. was not proper. He stated that it was very important in conducting a pelvic examination for the patient to have her feet in the stirrups so the doctor can readily palpate the internal organs. Plaintiff should have placed two fingers into her vagina and used his other hand to bring the internal organs down to palpate them and determine their size, shape, and consistency. Because Mary R. had complained of kidney problems, plaintiff should have manipulated the bladder down to his examining fingers to determine if the bladder was tender to the touch. Although Mary R. had undergone a hysterectomy, plaintiff should have examined her ovaries, and he should have palpated the area around her kidneys to determine whether they were enlarged or tender. In Dr. Lobraico’s opinion, plaintiff failed to examine Mary R. properly considering her complaint of urinary problems, and he acted unprofessionally in kissing her while he was conducting a pelvic examination.

Dr. Lobraico testified that in his opinion, plaintiff’s examination of Tyna T. was improper and unprofessional. He stated that it was unusual to perform a breast examination on a patient who has complained of an earache. He stated further that plaintiff conducted the breast examination in an unorthodox manner, by cupping both breasts in his hands and by performing the exam through the patient’s clothing. Plaintiff made insulting remarks about the patient’s appearance, and his conduct made her nervous and embarrassed. Dr. Lobraico stated further that it was improper and unprofessional for plaintiff to kiss Tyna T. on the cheek and to attempt to embrace her.

Dr. Lobraico testified that it was unusual for plaintiff to conduct a pelvic examination on Teresa W., then a breast examination, and then another pelvic examination. He stated further that it was improper for plaintiff to perform the pelvic examinations with only one hand, and it was not proper to manipulate the patient’s clitoris. In addition, it was improper for plaintiff to limit his examination of the patient’s breasts to only the nipple area. Dr. Lobraico also stated that plaintiff’s explanation that she had “a lot of germs” failed to adequately inform the patient of her condition.

Dr. Lobraico stated further that checking a patient’s arms for needle marks is not improper considering the prevalence of drug use among patients at Cook County Hospital. He also testified that it is proper to check lymph nodes when addressing a complaint of earaches and headaches. Lobraico indicated that it is proper for a doctor to recheck a patient’s vital signs which had been taken over eight hours earlier. He also acknowledged that mineral oil is a means to remove excess ear wax from the ear canal.

The plaintiff called Dr. William Nowlin as an expert witness. Dr. Nowlin testified that he was a general surgeon, practicing in northwestern Indiana. Dr. Nowlin reviewed the medical records and testimony of each of the patients who had complained about the plaintiff’s conduct. In Dr. Nowlin’s opinion, plaintiff did nothing inappropriate and did not breach any standards of care in his examination of these patients. Dr. Nowlin admitted, however, that it was unprofessional to kiss a patient during a vaginal examination. He also acknowledged that a bi-manual examination is necessary to perform a complete pelvic examination and that a one-handed exam would be incomplete.

Dr. Nowlin testified that a pelvic examination normally takes approximately one minute, and there was nothing in Mary R’s medical history which indicated a need to take as long as plaintiff did to perform the pelvic examination on her. Dr. Nowlin indicated, however, that a longer examination might be understandable where the doctor is of limited experience as was plaintiff. Dr. Nowlin stated that he did not see the relevance in plaintiff’s questioning Mary R. concerning the sexual activity of her female friends. He also indicated that a breast examination which was limited to pinching of the nipple area would be incomplete and that a proper breast exam should not be performed through the patient’s clothing.

Dr. Nowlin testified that it was unprofessional, not good judgment, and not in good taste to kiss a patient. He also stated that it was in poor taste for plaintiff to comment to Tyna T. about the appearance of most black women. Dr. Nowlin stated further that he saw no medical reason for plaintiff to ask Tyna T. whether she had sex with men other than her husband. Although he felt that kissing a patient was in poor taste, this did not change his opinion that plaintiff’s examinations and evaluations were appropriate.

Plaintiff also called Dr. Bharat Barai as an expert witness. Dr. Barai testified that he was licensed to practice medicine in Illinois and in Indiana and was certified in the specialties of internal medicine, oncology and hematology. Dr. Barai worked in the ASC at Cook County Hospital for one month in 1975 as part of his internship. He held a temporary certificate at that time. Dr. Barai testified that he does not practice obstetrics or gynecology, and he has never treated patients with the symptoms experienced by the patients seen by plaintiff.

Dr. Barai reviewed the medical records of the patients who had made complaints about plaintiff’s conduct. In Dr. Barai’s opinion, plaintiff did what was medically appropriate in taking the histories of these patients and in his examination, referral, and treatment of them. Dr. Barai indicated, however, that plaintiff needed more coaching and education on how to deal with patients. He stated further that it was not a breach of any medical standards to embrace a patient and that it was not inappropriate to ask Mary R. if her girlfriends were married and whether they were pretty. Dr. Barai also testified that in his opinion a pelvic examination done with only one hand was not inappropriate or incomplete. Dr. Barai stated that an inexperienced doctor such as the plaintiff would take longer to perform a pelvic exam than would an experienced practitioner. He also stated that rechecking an area where a problem is suspected is acceptable medical practice.

Plaintiff, testifying on his own behalf, stated that when he arrived in the United States, he worked for one year as an assistant to Dr. William Nowlin in Indiana. In 1987, he entered the post-graduate program in plastic surgery at Cook County Hospital. At that time, he held a temporary certificate to practice medicine at Cook County Hospital, and his permanent license application was pending. During his first year in the program, he rotated through and performed examinations at the ASC as part of his training. During his second year in the program, he voluntarily applied to work in the ASC to earn extra money. To be employed at the ASC, a person was required to (1) be on the Cook County Hospital payroll, (2) attend an orientation course offered by them and to pass a test, and (3) hold a temporary certificate with a permanent license application pending or must hold a permanent license. Although employment at the ASC was voluntary during the second year of the program, Cook County Hospital encouraged all residents, whether permanently or temporarily licensed, to work in the ASC. Although he received additional compensation, plaintiff considered his employment at the ASC a part of his' training program. Like the other doctors working there, plaintiff had no choice as to the patients or the nature of the complaints he was required to treat.

Plaintiff stated further that he asked all of his patients questions regarding their personal life because he wanted to develop a good rapport. He confined questions regarding sex to those patients who experience problems relating to the pelvic area. He also stated that he always offered to do a breast examination on all of his female patients.

Plaintiff testified further that he did not kiss all patients upon their first meeting, but only those who appeared upset or depressed. Plaintiff stated that he kissed these patients in an attempt to console them, saying “you are nice, be easy.” He testified that he kissed several other patients on August 10, 1987, who had not been called as witnesses. Plaintiff stated that he had seen other doctors and nurse practitioners kiss and hug patients of the opposite sex.

Following the hearing, the hearing officer issued a report detailing his findings of fact and conclusions regarding the charges brought against plaintiff by the Department. The hearing officer noted that plaintiff’s accent may have contributed to certain difficulties in the patients’ ability to communicate with him, but found that this circumstance was not the sole basis for the complaints made by the women who testified. The hearing officer found that plaintiff’s examination of Mary R. and of Teresa W. demonstrated unprofessional conduct of a character likely to harm the public. He found that plaintiff’s examination of Tyna T. demonstrated incompetence to practice. The hearing officer recommended the Department revoke plaintiff’s temporary certificate and deny his application for a permanent license.

The hearing officer also found that plaintiff’s employment at the ASC was not prescribed by or incidental to the program of residency in which he was enrolled and, therefore, exceeded the scope of practice authorized by his temporary certificate. Although the hearing officer found that plaintiff violated the statutory provisions restricting his practice of medicine within the scope of his temporary certificate, he recommended that the Department take no action on this violation because plaintiff’s conduct had been encouraged by the hospital and was a common practice there.

The Medical Disciplinary Board adopted all of the findings of fact and conclusions of law by the hearing officer and recommended that plaintiff’s temporary certificate of registration be revoked. The Medical Licensing Board adopted all of the findings of fact and conclusions of law by the hearing officer and recommended that plaintiff’s application for a permanent license be denied.

Plaintiff filed a petition for rehearing on the ground that the hearing officers’ conclusions were against the manifest weight of the evidence. Plaintiff alleged further that he was denied due process by the variance between the charges contained in the Department’s amended complaint and the grounds relied upon to revoke his temporary certificate and to deny his application for a permanent license. Additionally, plaintiff asserted that he was denied equal protection of the law, and he cited five cases involving permanently licensed doctors facing similar charges who were accorded disciplinary measures far less stringent than those imposed upon him.

The Director of the Department denied plaintiff’s request for rehearing, holding that plaintiff had failed to present any new evidence to warrant a rehearing and that substantial justice had been done in the case.

The Director adopted the findings of fact, conclusions of law and recommendations of the Medical Disciplinary Board and ordered that plaintiff’s temporary certificate be revoked. The Director also adopted the findings of fact, conclusions of law and recommendations of the Medical Licensing Board, but rejected the hearing officer’s recommendation that no sanction be imposed for plaintiff’s employment at the ASC. The Director ordered that plaintiff’s application for a permanent license be denied.

Plaintiff thereafter filed a complaint for administrative review. After briefing and oral argument by the parties, the circuit court affirmed the decision of the Department. In a memorandum opinion, the court found that the evidence supported the result and that the decision was not arbitrary, capricious, or against the manifest weight of the evidence. The court also rejected plaintiff’s claim that certain specific allegations found against him were never charged. The court found that the charges were sufficiently clear and detailed and that plaintiff was adequately apprised of the extent and seriousness of the charges prior to the hearing. The court declined to decide whether plaintiff’s employment at the ASC exceeded the scope of practice authorized by his temporary certificate. The court found that any finding on this issue would not affect the holding in the case because the court had already affirmed the revocation of plaintiff’s temporary certificate and the denial of his application for a permanent license.

Plaintiff has appealed the decision of the circuit court.

Initially, plaintiff asserts that the decision of the Department was against the manifest weight of the evidence.

The findings and conclusions of an administrative agency on questions of fact are considered to be prima facie true and correct (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110; Cicmanec v. Department of Registration & Education (1989), 182 Ill. App. 3d 710, 538 N.E.2d 1166) and are not to be disturbed on review unless they are against the manifest weight of the evidence (Massa v. Department of Registration & Education (1987), 116 Ill. 2d 376, 507 N.E.2d 814; Eastman Kodak Co. v. Fair Employment Practices Comm’n (1981), 86 Ill. 2d 60, 426 N.E.2d 877; Cicmanec, 182 Ill. App. 3d 710, 538 N.E.2d 1166). For a judgment to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly evident. Cicmanec, 182 Ill. App. 3d 710, 538 N.E.2d 1166; United Air Lines, Inc. v. Illinois Fair Employment Practices Comm’n (1979), 69 Ill. App. 3d 519, 387 N.E.2d 875.

A court of review is not to reweigh the evidence or make an independent determination of the facts. (Sheldon v. Edgar (1985), 131 Ill. App. 3d 489, 475 N.E.2d 956; Odell v. Village of Hoffman Estates (1982), 110 Ill. App. 3d 974, 443 N.E.2d 247.) Rather, the function of a court on review is to ascertain whether the final decision of the administrative agency is just and reasonable in light of the evidence presented. (Sheldon, 131 Ill. App. 3d 489, 475 N.E.2d 956; Odell, 110 Ill. App. 3d 974, 443 N.E.2d 247.) If there is any evidence in the record which fairly supports the determination of the agency, the decision is not against the manifest weight of the evidence and must be sustained on judicial review. Sheldon, 131 Ill. App. 3d 489, 475 N.E.2d 956; O’Boyle v. Personnel Board (1983), 119 Ill. App. 3d 648, 456 N.E.2d 998.

In the instant case, the administrative agency found that plaintiff’s treatment of Mary R., Tyna T., and Teresa W. violated professional standards and sections 22(A)(5), 22(A)20), and 22(A)26) of the Act. (Ill. Rev. Stat. 1987, ch. 111, pars. 4400-22(A)(5), (A)20), (A)26).) In addition, the agency found that plaintiff’s employment at the ASC was not prescribed by or incidental to his program of residency training and was beyond the scope of practice authorized by his temporary certificate in violation of section 17 of the Act. Ill. Rev. Stat. 1987, ch. 111, par. 4400 — 17(D).

The hearing officer noted that plaintiff’s accent may have contributed to certain difficulties in the patients’ ability to communicate with him, but found that this circumstance was not the sole basis for the complaints made by the women who testified. In fact, Tyna T. and Teresa W. both testified that they had no difficulty understanding plaintiff, and Mary R. testified that she was able to understand plaintiff after a few minutes.

The hearing officer heard and considered all of the evidence presented, including all of the testimony by the complainants, by plaintiff, and by the expert witnesses called by both parties. Upon review of the evidence presented and after forming conclusions as to the credibility of the witnesses, the hearing officer determined that plaintiff’s conduct was violative of the Act and warranted revocation of his temporary certificate and denial of his application for a permanent license. This determination was adopted by the Medical Disciplinary Board, by the Medical Licensing Board, and by the Director of the Department. There is ample evidence in the record to support this decision. Consequently, it cannot be found on review that the decision was against the manifest weight of the evidence.

Plaintiff argues that the hearing officer, the Medical Disciplinary Board, the Medical Licensing Board, and the Director of the Department employed an improper standard of review in considering the charges against him. Plaintiff claims that they inappropriately relied upon the standard of review for actions predicated upon assertions of medical malpractice. Plaintiff also asserts that the standard level of care in the ASC was cursory and not the same as one would expect to receive in a private doctor’s office. Yet, plaintiff points to nothing in the record to support this claim.

In addition, plaintiff contends that in reviewing a case of license revocation or denial, the agency ought to consider the experience of the physician generally and within the area in which the questioned practice occurred, and the context in which the service was performed. He argues that a person with less training ought to be held to a different standard than one with substantially greater training. Yet, plaintiff offers no legal authority for this argument. To the contrary, the Act mandates that the Department hold a new applicant to the same standards of discipline as a person holding a permanent license. Ill. Rev. Stat. 1987, ch. 111, par. 4400 — 9(B)(1).

Moreover, we find that plaintiff was not so inexperienced as his argument might indicate. The record reveals that plaintiff practiced in India for approximately three years and worked with Dr. Nowlin in Indiana for IV2 years. Thereafter, plaintiff completed one year of his residency at Cook County Hospital. Consequently, plaintiff had approximately five years of practical and clinical experience with patients before the instant complaints were raised.

The record indicates that in reviewing the charges against plaintiff, the Department considered the provisions of the Act and the evidence presented at the administrative hearing. On this record, it does not appear and plaintiff has not shown that the Department employed an incorrect or inappropriate standard of review.

Plaintiff next contends that he was deprived of the right to equal protection because the Department’s action was based upon his statutory classification as a temporary licensee.

In his petition for rehearing, plaintiff cited five cases of licensed physicians who allegedly were charged with conduct similar to that of the plaintiff but received sanctions which were more lenient than those imposed upon plaintiff. For each case, plaintiff listed the physician’s name, the case number, and a one-sentence summary of the charges against the physician and the sanction imposed. Plaintiff did not provide any of the specific facts of the cases, mitigating circumstances, or the findings and conclusions of the Department in these cases. In addition, plaintiff did not present any affidavits, Department records, or testimony in support of his claim that these cases were decided under a different standard than that employed in his case. Consequently, plaintiff has not presented sufficient evidence to prove that he was judged by a harsher standard than were the other licensed doctors or to establish that he was deprived of the right to equal protection.

Moreover, even if plaintiff had shown that the five doctors whose cases he cited received more lenient sanctions than those imposed upon plaintiff, it is for the Department to determine the appropriate sanction to be imposed in each individual case. (Massa, 116 Ill. 2d 376, 507 N.E.2d 814.) The mere fact that five other physicians received lesser sanctions does not in and of itself render the Department’s decision in plaintiff’s case violative of his right to equal protection where there was ample evidence in the record to support the Department’s decision.

Plaintiff argues further that he was entitled to be judged by a less stringent standard than that employed for experienced practitioners because he was inexperienced. This argument is without merit. As previously indicated, the Act mandates that the Department hold a new applicant to the same standards of discipline as a person holding a permanent license. (Ill. Rev. Stat. 1987, ch. 111, par. 4400 — 9(B)(1).) In addition, the record established that plaintiff had approximately five years of practical and clinical experience with patients before the instant complaints were raised.

Finally, plaintiff contends that he was deprived of the right to due process because certain conduct which was found to be violative of the Act by the Department was never charged in the complaint against him. He asserts that he was, therefore, unable to present an adequate defense at the administrative hearing.

Specifically, plaintiff refers to the fact that the complaint did not include any allegations that he used only one hand during his pelvic examinations of Mary R. and of Teresa W. Plaintiff also refers to the fact that certain conduct was found by the hearing officer to be demonstrative of plaintiff’s incompetence to practice where plaintiff was under the impression that his conduct would be reviewed only as it related to the Department’s claim that he acted improperly.

In order to charge a violation, an administrative agency is only required to present charges which are sufficiently clear and detailed to enable the respondent to intelligently prepare a defense. (Brija v. Board of Fire & Police Commissioners (1990), 202 Ill. App. 3d 363, 559 N.E.2d 978; Altman v. Board of Fire & Police Commissioners (1982), 110 Ill. App. 3d 282, 442 N.E.2d 305.) Such charges need not be technically precise or drawn with the same refinements and subtleties as court pleadings. (Brija, 202 Ill. App. 3d 363, 559 N.E.2d 978.) The complaint need only reasonably apprise the respondent of the charges against him. Wierenga v. Board of Fire & Police Commissioners (1976), 40 Ill. App. 3d 270, 352 N.E.2d 322.

In the instant case, plaintiff was sufficiently informed of the charges brought against him. The complaint against plaintiff specifically referred to the statutory sections he was alleged to have violated, the names of the patients involved, the conduct complained of, and the proposed sanctions for those violations. The allegations of improper touching, kissing, embracing, and of improper questioning of patients clearly put plaintiff on notice of the basis of the charges against him. In addition, counts IV through VIII of the complaint specifically charged plaintiff with incompetence in violation of section 22(A)(26) of the Act (Ill. Rev. Stat. 1987, ch. 111, par. 4400— 22(A)26)). Each of these counts clearly alleged that plaintiff improperly conducted medical examinations of the named female patients.

On this record, we find that plaintiff was adequately apprised of the nature, extent, and seriousness of the charges against him and that he was able to intelligently prepare a defense.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

RAKOWSKI, P.J., and McNAMARA, J., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    VICTOR DITOLA, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Owens-Illinois Glass, Appellee).
    First District (Industrial Commission Division)
    No. 1 — 90—2316WC
    Opinion filed July 5,1991.
    Orzoff, Shapiro & Locascio, of Northbrook, for appellant.
    Stevenson, Rusin & Friedman, Ltd., of Chicago, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The petitioner, Victor Ditola, brought a workers’ compensation claim against the respondent, Owens-Illinois Glass, for knee and back injuries allegedly sustained when he fell in a hole at work. The arbitrator found that the petitioner was entitled to l3/? weeks of temporary total disability compensation (TTD) and 60 weeks of permanent partial disability compensation for the 30% loss of use of his left knee. The Industrial Commission (Commission) agreed on the TTD, but reduced the permanent partial disability award to 5%. In so ruling, the Commission found the petitioner’s automobile accident was the actual cause of most of his knee problems. The circuit court confirmed the Commission. The petitioner appeals.

At the hearing before the arbitrator, the petitioner testified that on December 27, 1982, he was working as a machine repairman for the respondent. As he was using a torch, he pulled on the hose, stepped backwards, and fell into a two-foot-diameter hole. He felt pain in his back and left knee. After some co-employees helped him out of the hole, they had to carry him to the personnel office because his left knee kept giving out. The respondent’s personnel called paramedics, who took him to St. James Hospital for emergency treatment.

Medical records from the hospital indicate that the 23-year-old petitioner had a tender sacrum and coccyx, as well as a fracture of the sacrum. Although the petitioner’s left knee was examined, the records show no damage to it.

He subsequently received treatment on December 30, 1982, at the Boulevard Medical Clinic for his back and left knee. The doctor prescribed medication and an ice pack. The petitioner returned to the center on January 4 and 10 of 1983. On the later date, the doctor released him to return to work. The petitioner returned to his regular job at that time. Thereafter, he received treatment at the clinic on January 11 and 28, April 4, and May 2. On May 10, 1983, the clinic scheduled him for a June 6 appointment, but he never appeared.

Records from the Boulevard Medical Clinic show that on December 30, 1982, the petitioner had a fracture of the distal end of the sacrum and a left knee contusion. Although he complained of left knee stiffness on January 4, 1983, an examination showed no fracture or other bone changes. Duing his subsequent visits to the clinic, the petitioner complained of left knee pain and popping. In April, he underwent out-patient physical therapy at St. James Hospital. The Boulevard clinic records from May 2, 1983, the last time the petitioner visited the clinic, show that the knee was no longer giving out.

The petitioner further testified that on May 2, 1983, he visited his family physician, Dr. Schafer, at the Suburban Heights Medical Center, because his knee was not getting any better. His physician told him to continue exercising his knee using ankle weights, as he had previously been doing. The petitioner did not return to the Suburban Heights Medical Center between May 2 and December of 1983. However, during that time, his knee continued “popping out” two to three times per week, at which times he would be unable to walk on it.

On December 13, 1983, the petitioner swerved his car to miss a deer, causing him to hit a street sign. His knee popped loudly as he depressed the clutch while avoiding the deer. After that, he felt considerable pain in his knee and could not stand on it. The petitioner was taken by paramedics to the hospital, where he received emergency treatment. The next day he went to the Suburban Heights Medical Center. On December 15, 1983, he returned to see Dr. D. Narayana, an orthopedic specialist. Dr. Narayana gave him an immobilizer and crutches, and told him not to go back to work, but to go home and lie down.

On January 15, 1984, the petitioner was hospitalized for surgery to his left knee. The hospital records indicate that his knee was injured in the December 13, 1983, accident. However, they also note his statement that he had been having knee problems since falling in the hole at work. Reconstructive surgery was performed on the knee.

Dr. Narayana released the petitioner to return to work on May 21, 1984. In a letter to the respondent, Dr. Narayana stated that the petitioner was doing very well. He noted that his left knee joint was quite strong as of May 14,1984.

The petitioner stated that at the time of the hearing his left knee still popped out about once a week. Additionally, after a full day of work, his knee would be swollen and his back would hurt. After work he would lie in a hot tub for about an hour and sometimes pack the knee in ice. He still exercised the knee with weights. He noted that prior to falling in the hole at work he had never had any left knee or back problems.

On cross-examination, the petitioner admitted that he had broken his pelvis and left leg in a car accident when he was 15 years old. He was also in a car accident on April 13, 1981, and cracked a vertebra in his neck. As a result, he was hospitalized for a couple of days. He further acknowledged seeing Dr. Schafer in November and December of 1981, complaining of back pain.

In response to a question from the arbitrator, the petitioner stated that sometime between the December 27, 1982, work accident and May of 1983, one of the respondent’s company doctors at Boulevard had told him that if his knee kept popping out he would have to have surgery.

At the time of the hearing, the petitioner was working for Irvin Tractor Rentals as a tractor mechanic.

On September 21, 1984, Dr. Irwin Barnett examined the petitioner at the petitioner’s request. He diagnosed the petitioner as suffering from residuals of a lower back injury with slight bilateral sciatic nerve root irritation; a fracture of the distal sacrum; and residuals of soft tissue, ligamentous, and cartilage injury of the left knee. He noted some restriction of motion in the lumbar spine and the left knee joint.

At the respondent’s request, Dr. Richard Shermer examined the petitioner on October 2, 1986. Dr. Shermer found that the petitioner had excellent function and range of motion of the lower back and left knee.

The arbitrator found that on December 27, 1982, the petitioner had sustained accidental injuries arising out of and in the course of his employment with the respondent. He awarded the petitioner l8h weeks of TTD, that being the time he was off work for that injury. The arbitrator further found that the petitioner had suffered a 30% permanent partial loss of use of his left leg and therefore awarded him 60 weeks’ compensation. Although the arbitrator’s reasoning is not entirely clear, he also apparently determined that the petitioner had failed to prove a causal connection between his work injury and his condition of ill-being after January 10, 1983. He therefore awarded him no compensation for that time.

The Commission affirmed the TTD award and agreed with the arbitrator that the December 13, 1983, accident was an intervening cause. It further found, however, that the evidence did not justify a finding that a 30% loss of use of the left leg existed prior to the auto accident. It concluded that the work accident was only responsible for a 5% loss of use of the left leg. It therefore reduced the permanent partial disability award to 10 weeks’ compensation. The circuit court confirmed the Commission’s decision.

On appeal, the petitioner initially argues that the Commission’s causality finding was against the manifest weight of the evidence. Specifically, he contends that the evidence showed that a causal connection existed between his December 27, 1982, work accident and his condition of ill-being at the time of the arbitration hearing. Relying on International Harvester Co. v. Industrial Comm’n (1970), 46 Ill. 2d 238, 263 N.E.2d 49, he argues that the December 13, 1983, knee injury would not have occurred “but for” the knee damage already existing from the work injury.

We note that it is the Commission's responsibility to determine the existence of a causal connection between an industrial accident and the claimant’s injuries. (Steiner v. Industrial Comm’n (1984), 101 Ill. 2d 257, 461 N.E.2d 1363.) Further, it is within the province of the Commission to judge the credibility of the witnesses, weigh their testimony, and determine what weight to give the evidence. (Anderson Clayton Foods v. Industrial Comm’n (1988), 171 Ill. App. 3d 457, 526 N.E.2d 844.) Accordingly, the Commission’s decision on a question of fact will not be disturbed unless it is contrary to the manifest weight of the evidence. Newgard v. Industrial Comm’n (1974), 58 Ill. 2d 164, 317 N.E.2d 524.

Here, the petitioner returned to work on January 10, 1983, and sought no further medical treatment for his knee between May 2, 1983, and December 13, 1983. Though he claimed that he continued suffering knee problems during that time, the Commission was not obligated to believe him and could reasonably conclude from the medical evidence that the condition of his knee had stabilized at 5% loss of use. As such, the sudden worsening of his condition upon his accident could properly be attributed to the accident, rather than to lingering knee problems. Based on the evidence, we find that the Commission’s causality determination was not against the manifest weight of the evidence.

In so finding, we note that, contrary to the petitioner’s contention in his brief, there is no conflict between this decision and International Harvester. Causality is a factual question for the Commission to determine, and the facts of this case are considerably different from those found in International Harvester. Further, in International Harvester the supreme court was merely affirming the Commission’s factual finding that there was a causal connection.

The petitioner also argues that the circuit court erred in failing to award him TTD for the work time he lost between December 13, 1983, and May 20, 1984. Additionally, he contends that he is entitled to compensation for the 70% loss of use of his left leg and the 6% loss of use of the man as a whole due to his back injury.

We note that the TTD argument is entirely dependent upon this court finding that the auto accident was not the cause of the petitioner’s knee problems after December 13, 1983. Having affirmed the Commission’s finding that the car accident broke the causal chain, we find no merit to the petitioner’s claim that he deserved TTD after December 13.

Regarding the extent of the knee injury and any back injury, the petitioner arguably could be entitled to more compensation based only on the condition of his knee and back following the work injury. However, it was the Commission’s function to determine the extent of the injury (Crane v. Industrial Comm’n (1974), 57 Ill. 2d 158, 311 N.E.2d 156), and we find that its decision was not against the manifest weight of the evidence. The petitioner was only off work a short time, and the medical reports indicated little, if any, damage to the knee. Similarly, the medical evidence supports the Commission’s conclusion that there was no permanent damage to the petitioner’s back.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

McCULLOUGH, P.J., and McNAMARA, LEWIS, and WOODWARD, JJ., concur.


text:
    ANDREW WILLIAMS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Interlake, Inc., Appellee).
    First District (Industrial Commission Division)
    No. 1 — 90—2822WC
    Opinion filed July 5,1991.

      Cohn, Lambert, Ryan & Schneider, Ltd., of Chicago, for appellant.
    Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The petitioner, Andrew Williams, filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.). He sought to recover damages for an alleged injury arising from his employment with the respondent, Interlake, Inc. The arbitrator found in favor of the respondent. The Industrial Commission (Commission) affirmed the arbitrator’s decision, finding that the petitioner had failed to establish a causal connection between his condition of ill-being and a work injury. The circuit court confirmed the Commission’s decision. The petitioner appeals.

The record shows that on December 9, 1983, the petitioner was working as a laborer for the respondent. The petitioner testified that while working, he was hit in the lower back by the hook of a swinging hoist, which knocked him forward into the wheel of a machine.

He further testified that at the time he was working with another employee, John Dix, cutting bands on coils. To move the coils they used an overhead crane system consisting of a cable about eight feet long with a three- to four-foot-long C hook at the end of the cable. He stated that he had pushed the cable to Dix, who was standing about four feet away. About three to four minutes later, he was struck by the empty hook. He testified that he did not see it coming at him because he was bent over and had his back to it.

The petitioner then went to see the plant nurse, Betty Tyburski, because he “felt terrible.” She examined him, recommended an ice pack, and gave him some pain medication. Tyburski released him with a light-work restriction and told him to see the company doctor. The petitioner also informed his foreman, Ken Spotts, about the incident.

The petitioner testified that the next day he was aching and felt pain in the lower part of his back and in both legs. On December 12, 1983, he was hospitalized for evaluation at South Chicago Hospital, where he was treated by two doctors. He was thereafter released on December 17, 1983.

Regarding his present condition, the petitioner testified that his legs give out on him several times a week. He still suffers from pain in his lower back and in both legs, and he has difficulty sleeping and exercising due to the pain. In addition, he has not worked since the injury.

Nurse Tyburski testified that she examined the petitioner on December 9, 1983. She palpated the petitioner’s spine and paraspinal muscles, but found no tightness. In addition, she did not observe any redness, swelling, bruising, or spasms in his back. She also stated that she observed the petitioner bend over, raise his legs, and flex his knees without any apparent stiffness or discomfort.

Tyburski testified that she gave the petitioner pain medication because he asked for it. Finally, she stated that she released him with a light-work restriction because that was the standard operating procedure for an employee complaining of a back injury who had not yet been examined by a doctor.

Foreman Kenneth Spotts testified that he saw the petitioner immediately after the incident and noticed nothing out of the ordinary in the way he walked. He stated that after the petitioner told him what had happened, he went to the petitioner’s work area to investigate. He talked to John Dix, who told him he knew nothing about the alleged incident and that he had not seen anything occur.

Spotts also testified that he took the hoist to its rest position and let it go. He noted that it did drift towards the machine the petitioner had been working on. He stated, however, that the cable moved slowly, about 6 to 12 inches per second, and that the hook would “give” if it touched something. From his investigation he concluded that the hook was traveling so slowly it could not have caused an injury-

The medical records show that the petitioner was examined and treated by a number of doctors. The medical reports show that he was diagnosed as suffering from either acute lumbosacral strain and osteoarthritis of the lumbosacral junction, or a herniated lumbar disc. However, none of the doctors found a causal relationship between the injury of December 9,1983, and the petitioner’s lower back condition.

From the foregoing, the arbitrator found that the petitioner had failed to prove a causal relationship between the alleged injury of December 9, 1983, and the petitioner’s condition of ill-being. The Industrial Commission affirmed the arbitrator’s decision, and the circuit court confirmed the Commission’s decision.

The petitioner argues on appeal that the Commission erred as a matter of law in not finding that the work accident caused his present condition of ill-being. Citing International Harvester v. Industrial Comm’n (1982), 93 Ill. 2d 59, 442 N.E.2d 908, he contends that a causal connection between work duties and an injured employee’s condition may be established by a particular chain of events, notwithstanding a complete lack of medical testimony establishing causation. Specifically, a chain of events which demonstrates a previous condition of good health, an accident, and a subsequent injury resulting in disability may be sufficient circumstantial evidence to prove a causal nexus between the accident and the employee’s injury.

We note that it is the Commission’s responsibility to determine the existence of a causal connection between an industrial accident and the claimant’s injuries. (Steiner v. Industrial Comm’n (1984), 101 Ill. 2d 257, 461 N.E.2d 1363.) It is within the province of the Commission to judge the credibility of witnesses, to draw reasonable inferences from their testimony, and to determine what weight their testimony is to be given. (Anderson Clayton Foods v. Industrial Comm’n (1988), 171 Ill. App. 3d 457, 526 N.E.2d 844.) Accordingly, the decision of the Commission on a question of fact will not be disturbed unless it is contrary to the manifest weight of the evidence. Newgard v. Industrial Comm’n (1974), 58 Ill. 2d 164, 317 N.E.2d 524.

Here, the Commission found the petitioner was hit by the hook in the course of his employment. However, the Commission concluded the condition of ill-being was not connected to the incident. We find that this conclusion was not against the manifest weight of the evidence.

Although the petitioner is correct that medical evidence is not necessary to show causation, he nonetheless is wrong in contending that this court must find as a matter of law that the Commission erred. His argument completely ignores the fact that the issue presented in this case involves questions of fact.

The Commission was in the best position to judge the credibility of the witnesses and obviously it did not find the petitioner’s testimony credible. Instead, the Commission chose to believe the testimony of the respondent’s witnesses.

Mr. Spotts testified that, even if the petitioner had been hit by the hoist, the impact would not have caused him to suffer an injury. In addition, evidence was presented showing that immediately after the incident the petitioner had no symptoms indicating he had suffered a severe blow to his back.

Based on the foregoing, we conclude that the evidence supports the Commission’s finding that the petitioner’s condition of ill-being was not connected to his work injury.

The petitioner also contends on appeal that the evidence showed he was permanently disabled. He therefore requests that this court award him benefits accordingly.

Based on the above findings, we hold that the petitioner’s contention on this issue is without merit.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

McCULLOUGH, P.J., and McNAMARA, WOODWARD and LEWIS, JJ., concur.


author: PRESIDING JUSTICE RAKOWSKI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY WOMACK, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 88—0795
    Opinion filed July 12, 1991.

      Michael J. Pelletier and Martin Carlson, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James Fitzgerald, and Christine Perille, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

Defendant Gregory Womack was convicted of murder and two counts of armed robbery. Defendant was sentenced to life imprisonment, with two 30-year concurrent prison terms. Defendant appeals, contending that law enforcement authorities failed to scrupulously honor his invocation of his right to remain silent. We affirm.

Prior to trial, defendant filed a motion to quash arrest and suppress evidence. The grounds for the motion were twofold, namely: (1) that defendant was not advised of his Miranda warnings; and (2) that defendant’s confession was involuntary, being the result of physical abuse. Defendant, in his motion to quash and suppress, did not allege that his confession was constitutionally infirm due to failure on the part of law enforcement authorities to honor his fifth amendment to the United States Constitution (U.S. Const., amend. V) right to remain silent, which is the issue defendant now raises on appeal.

At the hearing on the motion to quash and suppress, the following evidence was elicited. Defendant testified that he was arrested at sometime around 2 a.m. or 3 a.m. on June 10, 1986, while he was at home. He heard knocking at the door, and when he opened it he saw several police officers. The officers told defendant to get dressed, and they took him to the police station. At the station, defendant was fingerprinted, a gunshot residue test was performed on defendant and defendant was placed in a lineup. While defendant related that the police officers who arrested him at his house talked among themselves, and told him to get dressed and placed him under arrest, defendant did not indicate whether he was advised of his Miranda warnings.

Two police officers were called by the State at the hearing on the motion to quash arrest. Detective John Yucaitis and his partner, Detective Peter Dignan, responded to a radio call at about 1 a.m. on June 10, 1986. Yucaitis testified that the detectives spoke with the murder victim’s three companions. One of them knew the shooter as Womack and also knew that Womack lived in Altgeld Gardens. Two of the victim’s companions identified defendant from a mugshot, while another companion of the victim later identified defendant from a photo array at the hospital. Detective Dignan testified that when defendant was arrested, Dignan gave defendant Miranda warnings.

At the hearing on the motion to suppress defendant’s statements, it was stipulated that both Detectives Yucaitis and Dignan would testify the same as they had during the hearing on the motion to quash concerning the giving of Miranda warnings. Detective Daniel McWeeny testified that he did not see defendant placed under arrest but that he saw defendant placed in the squad car. He never asked defendant any questions and he never saw anyone strike defendant.

Detectives Yucaitis and Dignan also denied that anyone struck defendant at the time of or at any time after defendant’s arrest. Yucaitis testified that defendant was not questioned about the shooting during the ride to the police station. Dignan testified that defendant made statements concerning the shooting while at defendant’s home. Once at the station, at about 5 a.m., Dignan advised defendant that defendant was going to be in a lineup, but defendant did not make any statements about the shooting.

The trial court denied both the motion to quash arrest and to suppress defendant’s statements, holding that defendant was sufficiently advised of his Miranda warnings and that there had been no physical force in the obtaining of defendant’s confession.

The following evidence was elicited at trial. Late at night on June 9, 1986, the murder victim, Richard Pippen, and four of his friends, Curtis Powe, Kevin DeFel, Leonard Sago and Rickey White, were standing on a street corner as two of them spoke on a telephone. Pippen’s four friends all testified at trial. Their testimony established that defendant approached them and began talking with them. Defendant said that his name was Womack, that he had gotten out of prison a few days earlier, and defendant introduced a friend of his whom he identified as Cato. Powe and DeFel had seen defendant in the neighborhood previously.

The group talked while standing on the corner for 15 to 30 minutes. Powe, DeFel and White each testified that defendant asked for a ride to Riverside and that defendant volunteered to pay some money toward gasoline. Sago, who owned the car, testified that defendant showed him a gun under his jacket and said that if Sago said anything defendant would take them all out. The group entered the car and Sago, who did not tell his friends about the gun, began driving.

Sago stopped at a gas station to check his rear tire, which had loose lug nuts. Powe and DeFel testified that defendant asked if anyone had a gun. DeFel said that he had a gun, although this was not true. Sago next drove to an area at the request of defendant so that defendant could go to his girlfriend’s. Near the corner of 133rd Street and Prairie, in Chicago, Illinois, Sago again stopped the car to tighten the lug nuts on the rear wheel. The group got out of the car. Defendant and his friend Cato (subsequently identified as Bruce Fields) engaged in a conversation, and then defendant again asked DeFel if DeFel had a gun. When DeFel said that he did not, defendant pulled out his gun, grabbed DeFel and pointed the gun at him. Defendant asked the witnesses if they had any money, and they said they did not.

Sago was holding a screwdriver and a jack, which defendant ordered Sago to throw down. When Sago failed to throw the tools down, Womack fired a warning shot in the air. Sago dropped the screwdriver. Fields then picked up a wrench and hit Sago on the head with it. Defendant walked Sago and DeFel down the street, while Fields stayed in the car with Pippen and Powe. Fields searched Pippen and Pippen gave Fields some money. When Fields attempted to hit Powe with the wrench, the latter ran away to summon help. Defendant fired a shot at Powe, but missed him. When Powe returned to the scene, Pippen was lying on the ground and the police were there.

Sago and DeFel testified that defendant fired a shot at Powe as Powe ran away. Then Fields came over to Sago and began beating him over the head with the wrench, at which point Sago passed out. DeFel testified that as Fields was beating Sago, Pippen came to the corner and asked why Fields was beating Sago. Defendant pointed the gun at Pippen and fired the gun, and Pippen began to run away. Fields then began to kick and hit DeFel, and took the gun from defendant, pointing it at DeFel. Womack took the gun back, telling Fields that they should leave before the police came and that it was enough that they had already shot the victim. De-Fel went to get help and the police arrived.

Sago, DeFel and Powe all testified as to their statements to the police and their identification of defendant based on photographs of defendant. Likewise, Detective Dignan testified as to his arrival on the scene and the interviews of the witnesses. Dignan further testified as to the arrest of defendant.

Dignan said that when initially at defendant’s house, while defendant was being given his Miranda warnings, defendant said that he did not shoot anyone and that he was either at home or on his way home when the shooting occurred. After receiving the rest of the warnings, defendant said, according to Dignan, that defendant had nothing more to say.

Once defendant was taken into custody, fingerprints were taken and a gunshot residue test performed. A lineup was conducted, and all four occurrence witnesses identified defendant. After the lineup, at about 5:30 a.m., Dignan and Yucaitis spoke with defendant in an interview room. Defendant was advised of his rights and was told that he had been identified by witnesses and was in big trouble. Yucaitis testified that at this time defendant said that he was at home or on the way home when the shooting occurred and defendant denied any knowledge about the shooting. Then defendant again said that he had “nothing more to say” to the detectives. Dignan responded “that is fine,” and that was the extent of the conversation.

Detective McWeeny and Assistant State’s Attorney William Lacy spoke with defendant at about 7:45 a.m. Lacy gave defendant Miranda warnings once again and asked defendant if defendant wanted to give a statement. Defendant once again said that he did not know anything about the shooting and was either at home or on the way home when it occurred.

Detectives Glynn and Basile testified that on the evening of June 10, 1986, they were assigned to try to locate the second person involved in the shooting of Pippen. At about 6:30 p.m. they took defendant from the lockup and into the interview room. Defendant was given his Miranda warnings. The detectives told defendant that he had been charged with murder and that he would be going to court later that evening. The detectives further told defendant that it was their job to locate the second person and that they wished to talk to defendant. Defendant agreed to talk. He said that he was with Bruce Fields that evening, and that while the robbery was Fields’ idea, defendant had shot the victim. Defendant gave the detectives an address where Fields could be found, and the detectives drove with defendant to the address before defendant was taken to court.

Neither Detective Glynn nor Basile called for a court reporter or a State’s Attorney after defendant gave them his statement. Nor did they transcribe the statement. They prepared a report, which stated “Womack did make an admission to us, and he does state that he and Bruce went to 6234 Dorchester after the shooting.” The details of defendant’s statement were not included in any report until after the assistant State’s Attorney asked them to include the statements in September 1987.

Other witnesses at trial testified as to the condition of Sago’s car, where a wrench with apparent bloodstains and a .38 caliber bullet were found, and as to the result of the gunshot test performed on defendant, which was consistent with a person having discharged a firearm or whose hands were near a gun which went off.

Officer Susan Phillips testified for defendant that she responded to a report of shots fired at about 1 a.m. on June 10, 1986. At the scene of the occurrence she interviewed DeFel, Powe and Sago. According to Officer Phillips, DeFel told her that he fled the scene after defendant displayed his revolver, fired the shot in the air and the victims were searched. DeFel told her that defendant pointed the gun at his (DeFel’s) throat, and defendant hit him with a tire jack. According to Phillips, Powe told her that he was struck by one of the offenders and fled the scene.

Detective McWeeny also testified for the defense. He said that between 3 a.m. and 3:30 a.m. he spoke to Sago about the shooting while Sago was in the hospital being treated for his head injuries. According to McWeeny, Sago said that after he stopped the car to fix the tire, defendant began beating him with the tire iron, and that Sago eventually lost consciousness. McWeeny’s report did not contain a verbatim account of his conversation with Sago, and did not include a reference to defendant having initially showed Sago his gun.

Defendant testified in his own behalf. He had been convicted of robbery and aggravated battery in 1984 and had been released from prison in May 1986. On the night of June 10, 1986, defendant and his friend, Bruce Fields went to the Shrimp Boat restaurant to eat, but the restaurant was closed. He saw two young black men chasing a white man on a bicycle. Defendant asked the black men for a cigarette, and though they did not have one, they thought that their friends by a telephone might have one. They walked over to the young men by the telephone.

Defendant knew one of the men, Rickey White, with whom defendant had graduated from high school. The group of men conversed. Defendant offered Sago $2 if Sago would drive him to 133rd Street, which Sago agreed to do. Defendant denied having a gun on his person. Sago stopped the car at 133rd and Prairie, and took out a jack. All exited the vehicle except one of the men, who had previously told defendant that he had a gun. As Womack talked with Fields, the man in the car exited the car, put the gun to defendant’s head and took defendant’s money. When the man with the gun looked at the others, defendant grabbed the gun and it went off. The two men struggled, the gun discharged again and the man fell to the ground.

At this point people started running. Fields was backing the car away, and defendant got into the car and was driven home by Fields. Defendant did not call the police, he testified, because having so recently gotten out of jail he did not want to be involved. Defendant then related that the police came and arrested him and again took him to the station. When describing his arrest, defendant did not indicate that Miranda warnings were given. Also, on cross-examination, while defendant initially indicated that he did not recall whether Detective Basile gave him his Miranda warnings when he confessed to the shooting, defendant subsequently testified to the effect that the warnings had not been given him. Defendant did testify that his rights had been read him by the assistant State’s Attorney. Defendant testified at trial that he did not confess to shooting Pippen and participating in the robbery to the detectives, but rather that he told them the truth consistent with his testimony at trial.

The primary issue defendant raises on appeal is whether the evidence of defendant’s inculpatory pretrial statement should have been suppressed due to the failure of law enforcement personnel to scrupulously honor defendant's invocation of his right to remain silent.

The State argues that the issue presented for review has been waived by defendant’s failure to raise the issue at trial or in defendant’s post-trial motion. Defendant did not urge this ground of error at trial and did not raise it in his post-trial motion, and thus under People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 176, the issue has been waived. Defendant requests that we review the issue under the plain-error doctrine.

Under Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)), however, “[pjlain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” Courts may consider plain error “where the record clearly shows *** an alleged error affecting substantial rights.” (People v. Young (1989), 128 Ill. 2d 1, 46, 538 N.E.2d 461.) This rule serves the dual purposes of “correcting serious injustices” and preserving “the integrity and reputation of the judicial process.” (Young, 128 Ill. 2d at 46.) Therefore, the rule applies only “when the question of guilt is close and the evidence in question might have significantly affected the outcome of the case [citations], or where the error alleged is so substantial as to reflect on the fairness or impartiality of the trial regardless of how closely balanced the evidence is [citations].” People v. Sanders (1983), 99 Ill. 2d 262, 273, 457 N.E.2d 1241.

To apply the plain-error exception to the waiver rule, courts should first determine if the record plainly shows that an error affecting substantial rights was committed. (People v. Precup (1978), 73 Ill. 2d 7, 17, 382 N.E.2d 227.) This criteria is met in criminal cases when “the evidence is closely balanced or the error is of such magnitude that the commission thereof denies the accused a fair and impartial trial or sentencing hearing. [Citations].” Young, 128 Ill. 2d at 47.

Thus, a reviewing court must first examine the record to find the strengths and weaknesses of evidence against the defendant, because “if the evidence is close, there is a possibility that an innocent person may have been convicted due to some error which is obvious from the record, but not properly preserved.” (People v. Carlson (1980), 79 Ill. 2d 564, 576, 402 N.E.2d 233.) For example, if a defendant is clearly identified as the robber by three witnesses and treated for gunshot wounds received during the robbery, the evidence is not close enough for an appellate court to review an alleged error already waived by the defendant. People v. Howell (1975), 60 Ill. 2d 117, 121, 324 N.E.2d 403.

Second, the court must look for “those errors of such magnitude that the commission thereof” precludes a fair trial. (Carlson, 79 Ill. 2d at 576-77.) Such errors occur, for example, when the jury instructions fail to distinguish between intent to kill and other intents which a defendant might have had (People v. Roberts (1979), 75 Ill. 2d 1, 14-15, 387 N.E.2d 331), when instructions fail to distinguish between elements for an insanity acquittal and a mental-illness conviction (People v. Fields (1988), 170 Ill. App. 3d 1, 9-10, 523 N.E.2d 1196), or when credibility is an issue and the defendant’s credibility is contrasted with the credibility and reputation of the State’s Attorney’s office (People v. Sexton (1987), 162 Ill. App. 3d 607, 615, 515 N.E.2d 1359).

In this case, we conclude that the error defendant complains of is not reviewable under the doctrine of plain error. An examination of the record reveals that the evidence was not close nor did any error occur of such a magnitude as to preclude defendant a fair trial. Defendant cites People v. Parham (1986), 141 Ill. App. 3d 149, 490 N.E.2d 65, in support of his argument that we should address the issue as plain error. In Parham, however, where defendant’s right to counsel was not honored, the trial court specifically indicated that it placed weight on defendant’s statement when the trial court found that defendant was legally sane at the time of the crime. (141 Ill. App. 3d at 155-56.) Here, there is no indication of specific reliance on the oral confession.

As indicated, the evidence in this case was not closely balanced. The record reveals that the State’s occurrence witnesses’ testimony was generally consistent and not impeached in any significant respect. Defendant’s version of the events, on the other hand, was incredible in numerous respects. Defendant, who fled the scene and did not report the occurrence, testified that he and Fields were robbed by the victim and his friends, and that the victim was shot while defendant and the victim struggled for the gun. Defendant specifically denied beating or seeing any of his alleged assailants being beaten. Totally absent from defendant’s version of the occurrence is any indication of how the substantial injuries to Sago took place. Defendant’s memory as to the incident was weak and somewhat inconsistent as to details regarding the position of the individuals at the scene and the timing of the events. For instance, defendant was inconsistent in his testimony as to whether he or Fields was robbed first, and how much time passed in between the shooting and when he and Fields fled. In sum, we are convinced that the evidence in the case was not closely balanced and that defendant received a fair trial. Thus, we refuse to address defendant’s proffered issue under the plain-error rule, as the issue has been waived.

Although defendant has not presented the issue separately, he presents a one-paragraph argument that his trial counsel was ineffective in failing to raise the issue below. We are not persuaded, however. One basis of the motion to suppress below was that Miranda warnings were not given to defendant in the first instance, and there was some ambiguity in defendant’s testimony as to whether he did receive his Miranda warnings. Thus, we do not question the tactical decision of defense counsel at trial not to raise the issue now raised.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

EGAN and LaPORTA, JJ., concur.