People v. Doneski

First Division

April 21, 1997

No. 1-95-1096

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

) Circuit Court

Plaintiff-Appellee, ) of Cook County.

)

v. )

)

TAMMY DONESKI, ) Honorable

) THOMAS DWYER,

Defendant-Appellant. ) Judge Presiding.

JUSTICE BUCKLEY delivered the opinion of the court:

Following a bench trial, defendant, Tammy Doneski, was

convicted of two counts of violating the Practice Act of 1987

(225 ILCS 60/49 (West 1992)), for (1) representing herself to the

public as being engaged in the practice of medicine, and (2)

attaching the title of doctor or M.D. to her name indicating that

she is engaged in the medical profession as a business. She was

found to have engaged in these practices during the period of

February through November 1993. Defendant appeals, raising the

following issues: (1) whether count IV of the indictment

properly charged the offense since it did not specify when or to

whom defendant allegedly held herself out as being engaged in the

practice of medicine; (2) whether the evidence failed to

establish that defendant held herself out as engaged in the

practice of medicine, but rather established that she was an

administrator and admittedly not a licensed or practicing

physician; (3) whether the evidence established that defendant

affixed the initials M.D. after her name on cards or stationery;

and (4) whether defendant was unfairly surprised and deprived of

the opportunity to confront witnesses when the court admitted

into evidence letters first produced on the morning of trial with

all but defendant's signature and the date redacted.

Defendant was indicted on five counts for committing the

offense of "persons without license holding themselves out to the

public as being engaged in diagnosis or treatment ailments of

human beings" in violation of the Practice Act of 1987 (225 ILCS

60/49 (West 1992)). A bench trial was held on counts IV and V of

the indictment, alleging respectively, that defendant "told

personnel at the Center For Human Reproduction that she was a

medical doctor," and that defendant "possessed, distributed and

allowed to be distributed business cards and stationery with her

name and the initials M.D. after it."

Before trial, defendant moved to dismiss the indictment for

failure to state an offense and to dismiss count IV specifically

on the ground that it was insufficient for purposes of double

jeopardy. The court denied both motions. After a two-day bench

trial, defendant was convicted of both counts on November 30,

1994. After hearing all factors in aggravation and mitigation,

the trial court sentenced defendant to 18 months probation, a

$1,000 fine, 20 days of community service and court costs.

The following evidence was presented during trial. The

Center For Human Reproduction (the Center) is an ob/gyn practice

specializing in infertility. A new position had been created at

the Center to handle patient complaints and to compile the

Center's statistical results of various infertility treatments.

In February or March 1993, Donna Havemann, the Center's executive

vice president, placed an ad in the Chicago Tribune to seek

candidates for a quality assurance and research coordinator with

"experience in data processing and statistics." The ad indicated

that applicants should have a master's degree in public health,

or an equivalent degree; a medical degree, medical license, or

Ph.D. was not required.

Defendant answered the ad with a resume indicating that she

was a candidate in the combined M.D./Ph.D. program at the

University of Chicago, and that she had received a bachelor of

science degree at the University of Chicago in 1988. An enclosed

cover letter stated that she was "in the process of completing

[her] doctoral thesis research" and had "indefinitely postponed

entering a medical residency program at this juncture" so that

she may "pursue other options within the healthcare industry."

In fact, defendant had not received a bachelor's degree from the

University of Chicago or any other university and she was never

enrolled in a M.D./Ph.D. combined program.

Defendant interviewed with the medical director of the

Center, Dr. Norbert Gleicher. He offered defendant the position,

which she accepted. While Dr. Gleicher admitted that defendant

never indicated that she was licensed to practice medicine in the

State of Illinois, he was under the impression that she had

completed the M.D./Ph.D. program at the University of Chicago.

After hiring defendant, Dr. Gleicher instructed Donna

Havemann to have defendant's name put on the letterhead and on

business cards followed by the designation "M.D./Ph.D." and the

title "Director of Quality Assurance and Data Management."

Defendant's name tag, worn on her lab coat at the clinic, bore

the same initials and title.

Dr. Gleicher testified that he introduced defendant to

staff members as "Dr. Doneski" and she never corrected him. Dr.

Gleicher also introduced her externally as "Dr. Doneski" and

heard the other staff members refer to defendant as "Dr.

Doneski." In the Center's brochures and inserts, defendant was

introduced as a graduate of the M.D./Ph.D. program of the

University of Chicago. The State's other witnesses, Benetta

Herman and Douglas Rabin, staff members at the Center, also

testified that defendant was referred to and introduced as "Dr.

Doneski." Ms. Herman stated that on one occasion, she had called

defendant "Tammy." Defendant instructed Ms. Herman to call her

"Dr. Doneski" rather than "Tammy." Donna Havemann also testified

that she recognized defendant's signature as "Dr. Doneski" on an

"on-call schedule."

On cross-examination, Dr. Gleicher testified that defendant

was not hired as a physician, was not to function as a practicing

physician, and was not on the Center's malpractice policy as a

physician. He stated that no one could make an appointment to

see defendant for patient care, and admitted that defendant's

title was put on her name tag to identify her function as

director of quality assurance. According to Dr. Gleicher,

defendant had never treated a patient during her employment at

the Center.

Defendant's responsibilities at the Center included taking

and writing up patients' complaints, analyzing patient

questionnaires, and reporting the outcome to Dr. Gleicher. Dr.

Gleicher reviewed and revised defendant's work. Defendant did

not offer to treat or suggest any treatment in her written work.

Defendant was also given a pager and was made available for

after-hours calls from patients seeking their test results.

These were all non-medical staff functions, requiring neither a

Ph.D. or M.D.

Prior to hiring defendant, Dr. Gleicher did not ask to see

defendant's diplomas. In the fall of 1993, he received a visit

from two investigators from the department which licenses

physicians and other healthcare professionals. He provided them

with printed materials which showed that defendant was not

employed as a practicing physician. Approximately one week

later, Dr. Gleicher received notification from the University of

Chicago that defendant never graduated from either their M.D. or

their Ph.D. program. Dr. Gleicher confronted and then fired

defendant.

In response to a subpoena for documents containing

defendant's signature and indicia that she held herself out as a

medical doctor, the Center produced, on the morning of trial, 14

letters written by defendant during the course of her employment

at the Center. The Center asserted a privilege under section 8-

2101 of the Code of Civil Procedure (735 ILCS 5/8-2101 (West

1992)), and the court allowed the letters to be admitted in

redacted form, with all but the letterhead, date, and closing

signature excised. Defendant objected both to receipt of the

documents in redacted form and to their production on the morning

of trial. The letters were admitted in completely redacted form

over defendant's objection. On six of these letters, defendant

had placed "M.D." and "Ph.D." following her signature.

Defendant made a motion for a directed finding at the

conclusion of the State's case-in-chief, which was denied.

Defendant testified on her own behalf. She stated that she

never told Donna Havemann or Dr. Gleicher that she was licensed

to practice medicine. She acknowledged authoring the letter to

Ms. Havemann in which she stated that she was in the process of

completing her doctoral thesis research and was indefinitely

postponing entering a medical residency program. Defendant

acknowledged that she did not receive a bachelor's degree from

the University of Chicago as was listed on her resume. She also

testified that she was never enrolled in the University's M.D. or

Ph.D. programs.

Defendant testified that during her employment at the

Center, she did not treat or diagnose any patient, nor did she

hold herself out to the public as being engaged in the business

of treating or diagnosing patients. She did not engage in any

conduct to solicit or establish a physician/patient relationship

with anyone visiting the Center.

On cross-examination, defendant testified that she never

told Dr. Gleicher not to mail the brochures because they falsely

stated that she graduated from the M.D. and Ph.D. programs at the

University of Chicago. She never told Donna Havemann to retract

the Center's letterhead because defendant was not an M.D. or

Ph.D. Nor did defendant instruct Donna Havemann to correct her

business cards. Defendant identified six of the State's exhibits

where she signed her name followed by M.D. or Ph.D.

After hearing closing arguments on both sides, the court

found defendant guilty of both counts. Count IV specifically

stated that defendant "held herself out to the public as being

engaged in the diagnosis or treatment of physical or mental

ailments or conditions *** of human beings, to wit: told

personnel at Center for Human Reproduction that she was a medical

doctor." Count V specifically stated that defendant "attached

the title doctor [or] M.D. *** to her or her name indicating that

she is in engaged in the treatment of human ailments or

conditions as a business, to wit: possessed, distributed and

allowed to be distributed business cards and stationery with her

name and the initials M.D. after it."

Defendant moved for an order of acquittal, or in the

alternative, for a new trial. She claimed that the indictment

did not fairly apprise her of the conduct that is alleged to have

violated the Act. She also claimed that there was no evidence

that she had held herself out as being engaged in the practice of

medicine. She claimed that there was no evidence that she caused

or requested the initials M.D. to be placed after her name on

business cards and stationery. Finally, defendant argued that

she was unfairly surprised, denied the opportunity to prepare,

and denied her constitutional right to confront witnesses when

the letters were produced on the morning of trial and admitted

into evidence in redacted form.

The court denied defendant's motion, and conducted a

sentencing hearing in which the court sentenced defendant to 18

months of probation, community service, and imposed a fine and

costs. This appeal followed.

First, we are asked to decide whether count IV of

defendant's indictment charges an offense. When the sufficiency

of the charging instrument is attacked, the standard of review is

to determine whether the instrument strictly complies with the

requirements of Illinois law. People v. DiLorenzo, 169 Ill. 2d

318, 319, 662 N.E.2d 412, 413 (1996); 725 ILCS 5/111-3 (West

1992). With regard to a charging document, such as an

indictment, Illinois law makes the following requirements:

"A charge shall be in writing and allege the

commission of an offense by:

(1) Stating the name of the offense;

(2) Citing the statutory provision alleged to

have been violated;

(3) Setting forth the nature and elements of

the offense charged;

(4) Stating the date and county of the

offense as definitely as can be done; and

(5) Stating the name of the accused, if

known." 725 IlCS 5/111-3(a) (West 1992).

It is well established that the purpose of these requirements is

to advise the accused of the nature of the charges against her,

to enable the accused to prepare her defense, and to serve as a

bar to future prosecution for the same offense. People v.

Williams, 266 Ill. App. 3d 752, 758, 640 N.E.2d 1275, 1280

(1994). "The relevant inquiry is not whether the alleged offense

could be described with greater certainty, but whether there is

sufficient particularity to enable the accused to prepare a

proper defense." People v. Meyers, 158 Ill. 2d 46, 54, 630

N.E.2d 811, 816 (1994).

Count IV of defendant's indictment contains all of the

statutory requirements for a charging instrument. (1) The name

of the offense is stated as "persons without license holding

themselves out to the public as being engaged in diagnosis or

treatment [of] ailments of human beings." (2) The statutory

provision that defendant allegedly violated is listed as "Chapter

225, Section 60/49 of the Illinois Complied Statutes, as

amended." (3) The nature and elements of the offense charged are

that defendant "held herself out to the public as being engaged

in the diagnosis or treatment of physical or mental ailments or

conditions *** of human beings, to wit: told personnel at Center

for Human Reproduction that she was a medical doctor." (4) Count

IV recites the date and county of the offense as "on or about

February 1993 thru October 1993 at and within the County of Cook,

Illinois." (5) Finally, defendant's name, Tammy Doneski, is

clearly identified.

Defendant's assertion that the indictment (1) does not

sufficiently apprise defendant of the nature of the accusation,

and (2) subjects defendant to double jeopardy, is without merit.

The language in the indictment is sufficient both to inform

defendant of the type of conduct which was violative of the Act

and to prevent future charges from being brought against

defendant for this specific offense during this time frame.

While the indictment may have been more specific, we find that it

met all mandatory requirements.

Next, we are faced with the question of whether the evidence

established the charged offenses. A criminal conviction will not

be set aside on review unless the evidence is so improbable or

unsatisfactory that there remains a reasonable doubt of the

defendant's guilt. People v. Jimerson, 127 Ill. 2d 12, 43, 535

N.E.2d 889, 903 (1989). It is not the function of this court to

retry a defendant when considering a challenge to the sufficiency

of the evidence of his or her guilt. People v. Boclair, 129 Ill.

2d 458, 474, 544 N.E.2d 715, 722 (1989). Rather, determinations

of the credibility of witnesses, the weight to be given to their

testimony, and the reasonable inferences to be drawn therefrom

are the responsibility of the trier of fact. People v. Nitz, 143

Ill. 2d 82, 95, 572 N.E.2d 895, 900-01 (1991). On review, the

relevant question is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 61

L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979); Nitz, 143 Ill.

2d at 95-96, 572 N.E.2d at 901.

Defendant claims that it takes more than just calling

oneself "doctor" to violate the Illinois Medical Practice Act.

Rather, a person must make representations that he or she is

engaged in the practice of medicine as a business. While

defendant admits that her conduct may have been morally culpable,

she insists that it did not to rise to the level of being

criminal. We disagree.

Human reproduction and infertility are highly sensitive

medical issues, requiring the care and personal attention of a

doctor. That defendant knowingly and intentionally adopted the

title "M.D." without possessing any of the requisite

qualifications renders her conduct not only immoral but criminal

in this state.

The Illinois legislature explicitly decided that conduct

such as defendant's should be illegal in the State of Illinois by

enacting the Illinois Medical Practice Act. The statute reads,

in relevant part, as follows:

"If any person does any of the following and

does not possess a valid license issued under

this Act, that person shall be sentenced as

provided in Section 59: (i) holds himself or

herself out to the public as being engaged in

the diagnosis or treatment of physical or

mental ailments or conditions *** of human

beings; *** or (v) attaches the title Doctor,

Physician, Surgeon, M.D., D.O. or D.C., or

any other word or abbreviation 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 (West 1992).

The statute does not require that defendant hold herself out as

being licensed to practice medicine in the State of Illinois, as

defendant insists. Rather, the statute makes it criminal to

represent oneself as being engaged in the practice of medicine

when that person is not licensed to practice medicine in the

State of Illinois.

The trial court apparently agreed with our understanding of

the statute when it ruled that defendant violated the Act by

having an office at the Center and holding the title "M.D." The

court rejected defendant's argument that the inclusion of her

title as director of quality assurance on the letterhead and her

name tag acted as a qualifier and dispelled any public perception

that defendant was a medical doctor. Rather, the court found

that there would be no way for the public to differentiate

between quality care at the Center and medical treatment.

We find the evidence to support the trial court's finding.

By utilizing the initials "M.D./Ph.D." while being an employee of

an infertility clinic, defendant represented herself as a doctor

not only to the patients at the Center but the staff and general

public as well. She signed letters on the clinic's letterhead

with "M.D." or "Ph.D." added to her signature. In her

application to the Center, defendant wrote a letter to Donna

Havemann falsely stating that she was in the process of

completing her doctoral thesis research when, in fact, defendant

had never been enrolled in either a M.D. or Ph.D. program.

Defendant never corrected Dr. Gleicher when he introduced her as

"Dr. Doneski" both inside the Center and externally. She

instructed a staff member to call her "Dr. Doneski" rather than

"Tammy." Defendant was aware that "M.D./Ph.D." followed her name

on the Center's stationery, her name tag and business cards, yet

never brought it to anyone's attention that she was not qualified

to hold either title. Defendant signed her own name on the "on-

call schedule" as "Dr. Doneski." Clearly, a person not intending

to hold herself out as a doctor would not conduct herself in such

a manner.

We do not find that defendant's lack of active involvement

in causing the initials "M.D." to be placed after her name on

cards or stationery rectifies her conduct. As discussed above,

by failing to notify either Donna Havemann or Dr. Gleicher that

she was not an "M.D./Ph.D.," and by allowing the letterhead and

business cards to continue to read "Tammy Doneski, M.D., Ph.D.,"

defendant led everyone at the Center and the public at large to

believe that she was a medical doctor. Moreover, the evidence

established that defendant did cause the "M.D./Ph.D." to be

affixed after her signature on six different letters by signing

her name in that manner. By representing herself as "Tammy

Doneski, M.D., Ph.D." while working at a medical clinic,

defendant engaged in precisely the type of conduct that the

legislature intended to prohibit by enacting the Illinois Medical

Practice Act.

Finally, we consider defendant's claim that she was unfairly

surprised and deprived of the opportunity to confront witnesses

when the court admitted into evidence letters first produced on

the morning of trial with all but defendant's signature and the

date redacted. The court allowed letters with defendant's

signature to be produced in redacted form after recognizing a

privilege under section 8-2101 of the Code of Civil Procedure

(735 ILCS 5/8-2101 (West 1992)). Section 8-2101 protects from

disclosure all information and materials used by hospitals

intended to improve quality control, patient care, and to reduce

morbidity or mortality. Zajac v. St. Mary of Nazareth Hospital

Center, 212 Ill. App. 3d 779, 788, 571 N.E.2d 840, 845-46 (1991);

735 ILCS 5/8-2101 (West 1992).

Defendant maintains that the court gave preference to the

privilege at the expense of her constitutional right to confront

witnesses since she could not ascertain from the redacted letters

whether they were written to patients or other doctors, or

whether she was "ordering a salami sandwich or tickets to a

hockey game." This argument, however, fails to recognize that

section 8-2101 (735 ILCS 5/8-2101 (West 1992)) protects only

medical information and if the letters did not contain such

information, the privilege would not have been applicable and the

court would not have ordered the letters to be redacted.

More significantly, the only relevant issue with respect to

the letters is the manner in which defendant signed them. "The

trial court is granted broad discretion regarding the admission

of evidence and its decision will not be reversed on appeal

unless that discretion has been clearly abused." Zajac, 212 Ill.

App. 3d at 788, 571 N.E.2d at 846. The content of the letters

and to whom they were written is not only privileged and

confidential, but also irrelevant since defendant was indicted

for holding herself out as being engaged in the practice of

medicine, and only her signature on the letters is probative of

this fact. The redacted letters established that defendant

personally placed the title of "M.D." after her signature on at

least six different occasions, presenting herself to the public

as a practitioner of medicine.

For the foregoing reasons, we affirm defendant's conviction

on both counts.

Pursuant to People v. Nicholls, 71 Ill. 2d 166, 374 N.E.2d

194 (1978), and relevant statutory provisions (725 ILCS 5/110-

7(h) (West 1992); 725 ILCS 130/13 (West 1992); 55 ILCS 5/4-2002.1

(West 1992)) we hereby grant the State costs and a fee of $100

for defending this meritless appeal. Additionally, pursuant to

People v. Agnew, 105 Ill. 2d 275, 473 N.E.2d 1319 (1985), and

section 4-2002.1 of the Counties Code (55 ILCS 5/4-2002.1 (West

1992)), we grant the State an additional fee of $50 for oral

argument of this case.

Affirmed.

O'BRIEN and GALLAGHER, JJ., concur.