Posted February 13, 2017 2:39 PM

Punishment for doctor remanded

By Lauraann Wood
Law Bulletin staff writer

The state’s professional regulation department must reconsider sanctions for a Naperville doctor after a Cook County judge found the physician’s romantic relationship with a patient did not exploit that patient’s vulnerability.

Jay Stewart, director of the Illinois Department of Financial and Professional Regulation’s Division of Professional Regulation, had issued a 30-day suspension and indefinite probation to Dr. James George Cunnar after finding his conduct violated the Illinois Medical Practice Act.

Hearing the case on administrative review, Cook County Circuit Judge Michael T. Mullen left intact the department’s finding on one aspect of the violation, that the relationship with the woman — identified as T.M. in court records — broke ethical obligations.

But Mullen found Stewart’s ruling on exploitation of a patient’s vulnerability lacked evidence and remanded that portion back to the state agency for further proceedings.

He held that the director’s decision to suspend his license for 30 days with an indefinite probation might have been different had the punishment been based on a single violation instead of two violations.

Donald S. Rothschild, a partner at Goldstine, Skrodzki, Russian, Nemec and Hoff Ltd. in Burr Ridge who represented Cunnar, said he and his client were pleased with Mullen’s ruling, as it reverses what he considered the “most inappropriate and legally erroneous aspect” of Stewart’s order.

Rothschild said he hasn’t decided whether to appeal the judge’s ruling.

“By and large, the recalculation of the penalty is a major reversal,” he said.

Cunnar had been T.M.’s primary care physician beginning in March 2010. Toward the end of their professional relationship, she would divulge details of her troubled marriage and Cunnar would perform a general psychological examination, prescribe her antidepressants and encouraging her to seek counseling.

But T.M. noticed Cunnar had begun to lose weight during a visit in November 2012, and Cunnar mentioned he was experiencing marital problems himself. That night, she sent him an e-mail suggesting the two get coffee.

Before the two talked about anything personal while they were out, Cunnar presented patient-termination forms to T.M. explaining he could no longer be her doctor once the relationship had become personal.

During his hearing before an administrative law judge, Cunnar testified their romantic relationship lasted from January 2013 until that July.

Cunnar medically treated T.M. three times during their relationship — administering a booster shot before returning to work, prescribing her cough medicine and examining a rash.

The two remained friends after their split. During Cunnar’s two-day hearing in April 2015, T.M. testified on his behalf that he did not influence her desire to get a divorce, never caused her harm during their professional relationship and that she never considered him as a therapist or psychiatrist.

T.M. expressed sorrow that her husband brought the complaint against Cunnar to the department and triggered the evidentiary proceedings before the judge, Rothschild said.

“T.M. was well able to complain if she had any complaint, and she had none,” Rothschild said.

In June 2015, the administrative law judge recommended Cunnar’s medical license be reprimanded. He found the department proved Cunnar committed unethical conduct in getting romantically and sexually involved with a current patient. But the ALJ found it did not prove Cunnar committed immoral conduct or had exploited T.M.’s vulnerability in the process.

The state Medical Disciplinary Board issued its recommendation in July 2015 adopting all of the ALJ’s factual and legal findings.

That August, Stewart accepted the board’s recommendation regarding Cunnar’s unethical and immoral conduct. But the director still found Cunnar had exploited T.M.’s vulnerability since he had engaged in a sexual relationship with a patient to whom he had provided mental-health screenings.

In partially affirming Stewart’s order, Mullen found enough evidence in the record to support his conclusion that Cunnar had committed an ethical violation.

“Although the parties’ respective experts had conflicting opinions as to whether Cunnar’s treatment of T.M.’s rash triggered ethical obligations, this alone does not warrant reversing the [d]irector’s conclusion, as it is not this [c]ourt’s role to reweigh the evidence,” he wrote in the 25-page order.

But Mullen found Stewart partially contradicted himself when he determined Cunnar did not engage in immoral conduct but did exploit the woman’s vulnerability. He ruled the finding was particularly erroneous because the record contains no evidence to support the director’s conclusion.

In his ruling, Mullen noted the only evidence that “tangentially” supports the director’s conclusion was the department’s expert testimony that a doctor’s sexual relationship with a former patient may be inappropriate if the patient is vulnerable and his opinion that the woman was a vulnerable patient.

“[He], however, did not suggest that a physician who engages in a sexual relationship with a vulnerable patient necessarily exploits the patient,” Mullen wrote. “Even if T.M. was a vulnerable patient, the evidence addressing whether Cunnar actually took advantage of or exploited T.M.’s vulnerability clearly points to the opposite conclusion.”

The department was represented by Assistant Attorney General Hellin Jang. A spokeswoman with the attorney general’s office did not return a request for comment by publication.

Rothschild said he and his client were pleased with Mullen’s order because the director’s exploitation finding “kind of identified him as like a sex offender, and he’s the furthest thing from that.”

“By putting this finding in there that he exploited her, it’s like he took advantage of a patient and had sex with her,” he said. “It was a consensual sexual relationship, and the sexual part of the relationship didn’t start for several months after they started a friendship.”

Cunnar was also represented by Brian M. Dougherty, a partner at Goldstine Skrodzki Russian Nemec and Hoff, and Lillian S. Walanka and Sabrina U. Elliott, attorneys with Glen D. Crick Ltd.

The case is James George Cunnar v. The Illinois Department of Financial and Professional Regulation et al., 15 CH 13787.

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