Petition for Writ of Certiorari — Wilson v. Illinois Department of Professional Regulation
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No Ct dug
IN THE
SUPREME COURT of the UNITED STATES
ROBERT LANCE WILSON. DO.
Petitioner,
V.
ILLINOIS DEPARTMENT OF PROFESSIONAL
REGULATION; NIKKI M. ZOLLAR, former Director of
the Illinois Department of Professional Regulation; and
LEONARD SHERMAN, Director of the Illinois
Department of Professional Regulation,
Respondents.
On Petition For Writ Of Certiorari To
The Illinois Court of Appeals, First Judicial District
PETITION FOR WRIT OF CERTIORARI
F. DEAN ARMSTRONG
Counsel of Record
ARMSTRONG LAW FIRM
1324 DARTMOUTH ROAD
FLOSSMOOR, IL 60422
708/798-1599
sana sai
QUESTIONS PRESENTED
I. Due to the destruction of the body of Dr.
Wilson's patient before the autopsy report was issued and
before any charges were filed against Dr. Wilson, were Dr.
Wilson's constitutionally protected property rights and
constitutional due process rights violated by the admission
into evidence of the conclusions of an ex parte autopsy
where Dr. Wilson was not accorded the Opportunity to
conduct an independent autopsy to challenge the
conclusions of the ex parte autopsy?
z. Due to the sua sponte assertion of new
allegations against Dr. Wilson on appeal where Dr. Wilson
was not accorded the opportunity to defend himself and
contest the new allegations against him, were Dr. Wilson's
constitutionally protected property rights and constitutional
due process rights violated by the decision of the Court of
Appeals to reverse Judge Bush based on grounds that were
not raised by any party, and grounds not supported by any
evidence in the record?
LIST OF PARTIES
;
All parties appear in the caption of the case on the |
cover page.
TABLE OF CONTENTS
Page(s)
QUESTIONS PRESENTED................. i
es ee TT
TABLE OF CONTENTS..... hGWCehenvan ene iii
INDEA TO APPENDICES. ........cscsccces Viii
|
TABLE OF AUTHORITIES................ ix
og GS 2
gs 2
THE CONSTITUTIONAL PROVISION
ce ve lpi Pe eee ETE ET CTE eT eT ee 2
STATEMENT OF THE CASE.............. 2
A. Henry Taylor Was A Terminally
lil Patient Suffering From Superior
Vena Cava Syndrome................. 4
B. Taylor Requests That No
Extraordinary Measures Be
Utilized To Prolong His Life............ 5
C. Taylor's Condition Worsens,
But Taylor Again Refuses
Intubation And Ventilation
BO Crean TER LMR... vc ccccccccss 5
-111-
Page(s)
D. Dr. Wilson Arrives To Find A
Critically Ill Patient Suffering
From Airway Collapse, Terminal
Suffocation, And Consciousness
Of Suffocation And Impending
E. Dr. Wilson Had A Duty To Not
Only Relieve Taylor's Pain, But
AlsoTo Relieve Taylor's Suffering
During The Process Of Death........... 8
F. As Dr. Wilson Attempted To Relieve
Taylor's Suffering By Rendering Him
Unconscious, Taylor's Heart Stopped
From Natural Causes And Taylor
Was Officially Pronounced Dead........ 11
G. After A Thorough Investigation,
The Cook County State's Attorney
Decides That The Evidence Does
Not Support Charges Against
BW, WORN co vos ea cbnecessantsesvesess 12
H. - The Appellate Court Reverses
Judge Bush Based On An
Argument Neither Asserted By
The Department Nor Supported
A £ . PPPETTTePETTITTTTT Tree 13
REASONS FOR GRANTING
DORE FR CEERI oc va sicccccnetecnecaseces 14
-iv- ,
Page(s)
I. DUE TO THE DESTRUCTION OF
THE BODY OF DR. WILSON'S
PATIENT BEFORE THE AUTOPSY
REPORT WAS ISSUED AND
BEFORE ANY CHARGES WERE
FILED AGAINST DR. WILSON. DR.
WILSON'S CONSTITUTIONALLY
PROTECTED PROPERTY RIGHTS
-AND CONSTITUTIONAL DUE
PROCESS. RIGHTS WERE
VIOLATED BY THE ADMISSION
INTO EVIDENCE OF THE
CONCLUSIONS OF AN EX PARTE
AUTOPSY WHERE DR. WILSON
WAS NOT ACCORDED THE
OPPORTUNITY TO CONDUCT AN
INDEPENDENT AUTOPSY TO
CHALLENGE THE CONCLUSIONS
OF THE EX PARTE AUTOPSY ........ 1S
Page(s)
Il. DUE TO THE SUA SPONTE
ASSERTION OF NEW
ALLEGATIONS AGAINST DR.
WILSON ON APPEAL WHERE DR.
WILSON WAS NOT ACCORDED
THE OPPORTUNITY TO DEFEND
HIMSELF AND CONTEST THE
NEW ALLEGATIONS AGAINST
HIM, DR. WILSON'S
CONSTITUTIONALLY
PROTECTED PROPERTY RIGHTS
AND CONSTITUTIONAL DUE
PROCESS RIGHTS WERE
VIOLATED BY THE DECISION OF
THE COURT OF APPEALS TO
REVERSE JUDGE BUSH BASED
ON GROUNDS THAT WERE NOT
RAISED BY ANY PARTY, AND
GROUNDS NOT SUPPORTED BY
ANY EVIDENCE IN
TERE, CRAIG eo oc ca ecncesabaesens 18
ee
A. The Evidence Is Clear And
Undisputed That Dr. Wilson
Was Not Guilty Of Inaction In
Connection With The Autopsy.......... 18
B. The Clear And Undisputed Facts
Show That Dr. Wilson Did, In Fact,
Claim That The Autopsy Report Was
Erroneous, Faulty, Or Not Reliable,
And That Dr. Wilson Had, In Fact,
Challenged The Findings In The
Amtogey Repert ... oss caavindeneneceees 20
-vi-
ee eT
Page(s)
C. Due To The Sua Sponte
Assertion Of New Allegations
Against Dr. Wilson On Appeal
Where Dr. Wilson Was Not
Accorded The Opportunity To
Defend Himself And Contest The
New Allegations Against Him,
Dr. Wilson's Constitutionally
Protected Property Rights And
Constitutional Due Process Rights
Were Violated By The Decision Of
The Court Of Appeals To Reverse
Judge Bush Based On Grounds That
Were Not Raised By Any Party, And
Grounds Not Supported By Any
Evidence In The Record..... cebbbhadns 24
-Vil-
INDEX TO APPENDICES
Appendix A November 18, 2003 Al-21
Opinion of the Illinois
Court of Appeals
Appendix B December 26, 2003 A22
Decision of the Illinois
Court of Appeals denying
Dr. Wilson's Petition for
Rehearing
Appendix C April 10, 2002 A23-24
Decision of Circuit Court
Judge Bernetta D. Bush
Appendix D April 10, 2002 A25-29
Findings by Circuit Court
Judge Bernetta D. Bush
Appendix E March 24, 2004 A30
Order of the Illinois
Supreme Court denying
Discretionary Review
se A ELT NERA LEEEL LILLE EN LEE ILE LE LES
-Vill-
TABLE OF AUTHORITIES
Cases Page(s)
Barker v. Bledsoe,
85 F.R.D. 545 (W.D.OkKI.1979)........... 16-17
Daven v. Downey,
378 Ill. 543, 39 N.E.2d 45 (1941)........ 19
English v. Cowell,
10 F.3d 434 (7th Cir. 1993).............. 25
Kansas v. Naramore,
25 Kan.App.2d 302,
965 P.2d 211 (1998)............ .... ~~ 10
Lewis v. Darce Towing Company,
94 F.R.D. 262 (W.D.La.1983)... a 19
In re Ruffalo.
B90 1).S. 54647968)... 0. ee eee. 16
24,25
Smith v. Department of Registration & Education,
412 111.332, 106 N.E.2d 722 (1952)........ 4.16.
| 23, 24
Washington v. Glucksberg.
od RO Ey Og tL.) 89,10
Page(s)
Statutes and Rules
28 U.S.C. §1257(a) 2
Fourteenth Amendment 2,25
210 ILCS 60/31 8
725 ILCS 5/115-5.1 1S
Other
American Medical Association Rule 2.20 3,8
Barbiturates in the Care of the Terminally Ill.
327 New Eng.J.Med. 1678 (1992) 8-1]
No.
IN THE
SUPREME COURT OF THE UNITED STATES
ROBERT LANCE WILSON, D.O..
Petitioner.
¥
ILLINOIS DEPARTMENT OF PROFESSIONAL
REGULATION, NIKKI M. ZOLLAR, former Director of
the Illinois Department of Professional Regulation; and
LEONARD SHERMAN, Director of the Illinois Department
of Professional Regulation,
Respondents.
On Petition For Writ Of Certiorari To
The Illinois Court of Appeals, First Judicial District
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari
issue to re: 1ew the judgment below.
OPINIONS BELOW
This petition seeks review of a decision of the Illinois
= Court of Appeals, First Judicial District, which is
unreported and printed as Appendix A.' The decision of
Circuit Court Judge Bernetta D. Bush restoring Dr.
Wilson's medical license is unreported and reprinted as
Appendix C. The findings of Judge Bush are unreported
and reprinted as Appendix D. The decision of the Illinois
Supreme Court denying discretionary review is unreported
and reprinted as Appendix E.
JURISDICTION
The decision of the Illinois Court of Appeals was
entered on November 18, 2003. (Al) A timely motion for
rehearing was denied on December 26, 2003, and a copy of
the order denying rehearing appears at Appendix B. On
March 24, 2004 the Illinois Supreme Court denied
discretionary review. (A30) The jurisdiction of this Court
is invoked under 28 U.S.C. §1257(a).
THE CONSTITUTIONAL PROVISION INVOLVED
The Fourteenth Amendment to the United States
Constitution provides in relevant part that "No State shall . .
deprive any person of life, liberty, or property, without
due process of law 2
STATEMENT OF THE CASE
This is a case of extreme importance to the People of
this Nation, especially to terminally ill patients who are
going through the painful process of death, and the doctors
References to the Appendices will be stvied "A _".
tJ
who have to care for that terminally ill patient who is
conscious during the terrifying process of death. This case
does not involve euthanasia -- mercy killing of the type
flaunted by the infamous Dr. Kervorkian. Rather, it
involves a doctor's obligation to provide effective
"palliative care" -- the duty of a doctor under American
Medical Association Rule 2.20 to relieve not only a dying
patient's pain, but suffering as well, even though the
particular palliative treatment chosen by the doctor "may
foreseeably hasten death". (AMA Rule 2.20)
After reviewing the entire record, the Circuit Court
Judge, the Hon. Bernetta D. Bush, realized the importance
this case to the People of the State of Illinois (R-A3-C71-
72), and reversed the erroneous decision of the Department
of Professional Regulation ("Department" or "DPR") to
revoke Dr. Wilson's medical license for a period of five
years. The Appellate Court, however, reversed Judge Bush
based on an argument neither asserted by the Department
on appeal, nor an argument which is supported by the facts.
Dr. Wilson's medical license has now been suspended
for over five years, longer than the suspension
recommended by the Department upon conclusion of the
trial of this case. Judge Bush's April 10, 2002 decision
would have brought finality to this process, but the
Appellate Court has now reversed Judge Bush and sent the
matter back down to the Department for the reopening of
the trial. Accordingly, the whole litigation process will
have to start-up all over again, with Dr. Wilson's medical
license still subject to a "temporary" order of suspension,
which has now been "temporarily" in effect for well over
five years. Enough.
This Honorable Court can and should bring finality to
this process, and bring an end to the over five years of
disgrace and humiliation that the Department has so far
heaped on Dr. Wilson. As noted by the Illinois Supreme
Court in Smith v_ Department of Registration & Education,
412 11.332, 340-41, 106 N.E.2d 722, 728 (1952):
It has been repeatedly held in this State that the
revocation of a license of a [doctor] carries with it
dire consequences. It not only involves necessarily
disgrace and humiliation but it means the end of his
professional career. In a proceeding so serious, due
process of law requires a definite charge, adequate
notice, and a full, fair and smpartial hearing.
Accordingly, Petitioner Robert Lance Wilson, D.O.
respecttully requests that a wnt of certiorari issue to review
the decision of the Appellate Court, First Judicial District,
reversing, in part, the final decision and judgment of the
Circuit Court, the Hon. Bernetta D. Bush, presiding.
A. Henry Taylor Was A Terminally Ill Patient
Suffering From Superior Vena Cava Syndrome
By September of 1998 Henry Taylor was 69 years old
and was very ill with end-stage renal (kidney) disease.
(SR-4-C983; SR-3-C575 & 699) On September 18, 1998
Taylor developed edema (swelling) in his right arm, so
Taylor's doctor, Dr. Don L. Hollandsworth, had Taylor
admitted to Olympia Fields Hospital in Olympia Fields,
Illinois. (SR-4-C983-84 #4: SR-3-C575-576;, 572; SR-4-
C990 #19)
It was subsequently determined that Taylor suffered
from superior vena cava ("SVC") syndrome -- a potentially
terminal condition whereby the return flow of blood from
the upper part of the body to the heart is blocked, thus
causing swelling of the soft tissue in the arms, head and
a
neck. During the progression of the disease, the backed-up
blood searches for another route to return to the heart, but
the other liquids within the blood then leak into the
surrounding soft tissue, thus causing edema -- swelling of
the tissue. Eventually SVC syndrome leads to swelling of
the soft tissue in the neck, causing a compression of the
trachea. This squeezing of the windpipe then results in
difficulty in breathing (referred to as "air hunger") and
eventual closure of the windpipe (referred to as "airway
collapse"), and then "terminal suffocation" -- death through
asphyxiation. (SR-2-C351-52; 356-57, 356-59 & SR-3-
C609-11)
B. Taylor Requests That No Extraordinary Measures
Be Utilized To Prolong His Life
Dr. Hollandsworth advised Taylor that he could
suffocate to death because of SVC syndrome "if he did not
allow resuscitative measures or other interventions." (SR-
3-C611-12) When Dr. Hollandsworth talked to Taylor
about a "DNR" (do not resuscitate) request, Taylor
"unequivocally said he did not want intervention aggressive
measures. And he signed his own DNR." (SR-3-C612)
Thereafter Taylor signed his own DNR order, on two
separate occasions, requesting no artificial ventilation to
prolong his life. (SR-3-C591-92 & 612; SR-2-C366; SR-6-
C1422 & 1424)
C. Taylor's Condition Worsens, But Taylor Again
Refuses Intubation And Ventilation To Prolong
His Life
By September 29, 1998 Taylor's edema from the SVC
syndrome was getting worse, with Taylor now experiencing
swelling in his face and neck. (SR-3-C586 & 609) At that
time Dr. Hollandworth realized that Taylor was "going
down very fast." (SR-3-C586)
By the morning of September 30th the swelling in
Taylor's neck had progressed to the point where it was
starting to affect Taylor's ability to breathe. (SR-3-C388-
89: SR-4-C984) At that stage of Taylor's SVC syndrome,
"there was no medication that would shrink the [swelling]
or relieve the pressure." (SR-3-C642-43) With Taylor's
overall condition and advanced stage SVC syndrome, and
with the DNR orders in place, it was just a matter of time
before Tavlor suffocated to death. (SR-2-C392, 425 &
497)
By the morning of September 30th Taylor started to
have worsening edema of his shoulder and neck, and then
started to complain of difficulty in breathing. (SR-3-C720-
21) At around 8:00 a.m. Taylor was drooling and flailing
about trying to breathe. (SR-2-C388-89 & 399) The
resident doctor caring for Taylor, Dr. Teresa Muns, asked
Taylor if he wanted to be intubated, but Taylor said "no".
(SR-2-C390) According to Dr. Muns, Taylor was
suffocating and was probably going to die within minutes.
(SR-2-C390-91) At that point Dr. Muns paged Dr. Wilson,
and gave Taylor a 2 mg shot of morphine to try to relieve
Taylor's distress. (SR-2-C391-92)
D. Dr. Wilson Arrives To Find A Critically Ill Patient
Suffering From Airway Collapse, Terminal
Suffocation, And Consciousness Of Suffocation
And Impending Death
Dr. Wilson was first called to assist Taylor at
approximately 8:00 a.m. on September 30, 1998. (SR-2-
C494) Dr. Wilson was a cardiologist with his practice in
cardiovascular and critical care medicine. (SR-2-C460; SR-
3-C618, SR-4-C983) Dr. Wilson had been previously
called in as a consultant by Taylor's attending physician,
Dr. Hollandsworth, because of the cardiology aspects of
Taylor's SVC syndrome. (SR-2-C493-94: SR-3-C580)
When Dr. Wilson arrived at Taylor's bedside shortly
after 8:00 a.m., he found a patient who was suffocating to
death with air hunger. (SR-2-C496 & 399-400) As
admitted by the Department, Dr. Wilson "was called to
Taylor's bedside and witnessed him suffocating to death as
his trachea collapsed due to [SVC] syndrome." (DPR Br.
p. 3) Dr. Wilson explained to Taylor that he was going to
die without the insertion of a breathing tube (SR-2-C 400),
and asked Taylor if he could put a tube down Taylor's
throat to help him breathe. (SR-2-C497; SR-3-C591)
Taylor, however, refused Dr. Wilson's repeated requests for
intubation. (SR-2-C497, 391; SR-3-C 591-92)
Then Taylor's airway collapsed, thus cutting off all
oxygen. (SR-2-C400, 422-24 & 357-59) Taylor had
progressed from "air hunger" to "airway collapse", and Dr.
Wilson was now faced with a condition of terminal
suffocation. (SR-3-C542; 544 & 546) Thus, with the DNR
orders in place, Dr. Wilson had to now care for a patient
that was experiencing the conscious suffering of awareness
of his impending death from suffocation. (Id.)
Dr. Wilson then administered another shot of
morphine, this time 10 mgs. But the additional morphine
did nothing to relieve Taylor's conscious suffering through
his consciousness of the fact that he was irretrievably cast
within the process of suffocating to death. (SR-2-C394-95:
417-18, SR-3-C538; C547) Dr. Wilson felt he had a duty to
not only relieve Taylor's pain during the dying process, but
also relieve Taylor's conscious suffering during the
terrifying process of suffocating to death. (SR-3-C535)
E. Dr. Wilson Had A Duty To Not Only Relieve
Taylor's Pain, But Also To Relieve Taylor's
Suffering During The Process Of Death
"Palliative care" tS the medical care rendered to a
terminally ill patient to relieve that patient's pain and
sutfering during the process of death. (SR-2-C408-09; SR-
3-C 738; see 210 ILCS 60/31) Pursuant to the American
Medical Association Code of Medical Ethics Rule 2.20 (R-
1-C 196-197) ("AMA Rule 2.20"),
[p]hysicians have an obligation to relieve pain and
suffering and to promote the dignity and autonomy
of dying patients in their care. This includes
providing effective palliative treatment even though
it may foreseeably hasten death.
(R-A1-197)° As admitted by the DPR's expert witness,
Rule 2.20 "is a very good statement about obligations of
physicians to relieve pain and suffenng.. .."_ (SR-3-C738,
see, also, SR-2-C408) Indeed, a caregiver's first
responsibility is to relieve pain and suffering. (Barbiturates
in the Care of the Terminally Ill, 327 New Eng.J.Med.
1678, 1680 (1992) (R-1-C200-203) (hereafter, "New
Eng.J.Med."), cited- with favor by the Department in
connection with this appeal and by the United States
Supreme Court in Washington v. Glucksberg, 521 U.S.
702, 780 (1997))
As mandated by Rule 2.20, a physician has a duty to
not only relieve the patient's pain, but to also relieve the
The scope of a doctor's duty under AMA Rule 2.20 was a factual
matter discussed during the trial. (See SR-2-C408-09; 417-18: SR-3-
C538 & 547)
patient's suffering during the process of death. While the
increasing dosage of morphine may have been effective in
relieving Taylor's pain, it did nothing to relieve his
suffering of the consciousness of his impending death
through asphyxiation. (SR-2-C395 & 416-19)
Because Taylor was someone who would never
breathe another breath, the options facing him were (1)
conscious suffering, and then death; or (2) unconsciousness
with no suffering, and then death. In the words of Justice
Stevens, Taylor "no longer ha[d] the option of deciding
whether to live or to die because [he was] already on the
threshold of death .. ..". Washington v. Glucksberg, 521
U.S. 702, 745 (1997) (concurring opinion by Justice
Stevens). .
As Taylor continued to flail about and suffer through
consciousness of the process of death, Dr. Wilson had to
make a quick decision on how best to relieve Taylor's
suffering. While analgesics such as morphine are
appropriate palliative care to relieve a dying patient's pain,
in certain circumstances it is appropriate to use a
potentially lethal agent to induce the unconsciousness of
the patient, and thus relieve the patient's suffering during
the process of death (New Eng.J Med. pp. 1679-81)
Indeed, inducing unconsciousness of the patient through the
administration of a potentially lethal but non-analgesic
agent (referred to as "double effect") is appropriate
palliative care (1) to relieve suffering when all other
reasonable alternatives have failed; (2) to produce
unconsciousness just prior to the death causing event; and
(3) to produce unconsciousness as a means of relieving
non-physical suffering, such as consciousness of impending
death through the process of suffocation. (New Eng.J Med.
p. 1680)
As a cardiologist, Dr. Wilson was familiar with the
drug potassium chloride (KCL), and was familiar with the
double effect of potassium chloride to render a patient
unconscious through the mechanism of "heart block". (SR-
3-C538 & 547; SR-2-C417-18) Barbiturates. like
potassium chloride, are not an analgesic (i.e., not used for
pain relief) (New Eng.J Med. p. 1681), but rather are a
seizure medication. Further, barbiturates, like potassium
chloride, are also routinely used in higher doses in the
execution of prisoners by lethal injection. (New
Eng.J Med. p. 1678) While barbiturates "generally hasten a
patient's death" (id. p. 1679), barbiturates, like potassium
chloride, can, in an appropriate dose, have the double effect
of rendering a patient unconscious. (Id. p. 1681; SR-2-
C417-18)
It is well recognized that there is anxiety and fear
associated with the inevitability of impending death that is
not relieved by the mere administration of analgesics such
as morphine. (New Eng.J. Med. pp. 1679-80) Accordingly,
there is a sliding scale in the aggressiveness of the
palliative care necessary to relieve suffering depending
upon (a) the short-term certainty of death; and (b) the
suffering associated with the patient's consciousness of the
process of death. (See New Eng.J Med. pp. 1679-81:
Washington v. Glucksberg, 521 U.S. 702, 736 (1997) ("a
patient who is suffering from a terminal illness and who is
experiencing great pain has no legal barriers to obtaining
medication, from qualified physicians, to alleviate that
suffering, even to the point of causing unconsciousness and
hastening death.") (concurring opinion by Justice
O'Connor), Kansas v. Naramore, 25 Kan.App.2d 302, 965
P.2d 211, 214-15 (1998)) (SR-2-C417-19)
Here Dr. Wilson faced a patient who'd already
received two shots of morphine, but was still suffering
-10-
through consciousness of the fact that he was irretrievably
cast within the process of suffocating to death. (SR-2-
C394-95; SR-3-C529, 538 & 547: SR-2-C393 & 395-96)
It is appropriate palliative care to attempt to render a patient
unconscious through the "double effect" of a potentially
lethal drug when "the impending event is so
psychologically distressing to the patient that mere pain
control is not enough." (New Eng.J.Med. p. 1680; SR-2-
C409, 413 & 417-18) And that is the situation that Henry
Taylor was in, and that is the situation that was facing Dr.
Wilson, at 8:24 a.m. on September 30, 1998. (SR-2-C417-
18)
F. As Dr. Wilson Attempted To Relieve Taylor's
Suffering By Rendering Him Unconscious,
Taylor's Heart Stopped From Natural Causes And
Taylor Was Officially Pronounced Dead
The increasing doses of morphine had done nothing
to relieve Taylor's anxiety and suffering over consciousness
of his impending death. (SR-2-C394-95; SR-3-C538)
With his patient continuing to suffer, Dr. Wilson used the
only immediately available drug that would render Taylor
unconscious, and thus relieve Taylor's conscious suffering
during the process of his certain death. (SR-2-C419 & 425:
SR-3-C511; 538; 547 & 558) At 8:24 a.m. Dr. Wilson
injected Taylor with 40 millequivalents (m/eq) of
potassium chloride. (SR-2-C396-96a & 399)
As a cardiologist, Dr. Wilson knew that 40 m/eq of
potassium chloride would have the "double effect" of
rendering Taylor unconscious during the continuation of
Taylor's process of death. (SR-3-C538 & 547) This was
an appropriate dose to render Taylor unconscious in light of
the fact that (a) 30 m/eq of potassium chloride was the
standard dose to correct irregular heart rhythms in a study
te
of 100 patients, with some of those patients experiencing
heart block, but none experiencing heart stoppage or death
(SR-2-C413-15); and (b) the tolerance that Taylor had
developed for potassium through his years as a kidney
dialysis patient. (SR-2-C411-13, SR-3-C555) As admitted
by the Department, Dr. Wilson "believed that administering
potassium chloride was proper palliative care because it
would render the patient unconscious rather than simply
sedated." (DPR Br. p. 9)
As Dr. Wilson began the injection, however,
Taylor's heart stopped; his heart monitor "flat lined"; and
Taylor died from his underlying medical condition. (SR-2-
C394-95 & 424-25; SR-3-C610 & 555) Taylor was
formally pronounced dead at 8:25 a.m. (SR-2-C400)
G. After A Thorough Investigation, The Cook County
State's Attorney Decides That The Evidence Does
Not Support Charges Against Dr. Wilson
Based on the "story" that the Cook County Medical
Examiner heard about the administration of potassium
chloride (a potentially lethal drug), the medical examiner
ruled Taylor's death a "homicide" by Dr. Wilson. (SR-5-
C1134) The Cook County State's Attorney then conducted
a thorough investigation into the death of Taylor. On
September 28, 1999 Richard A. Devine, the Cook County
State's Attorney, formally announced that the evidence did
not support any criminal charges against Dr. Wilson. (R-
A 1-C205; SR-6-C 1252; DPR Br. p. 5)
As admitted by the Department, "the evidence in the
record does not demonstrate that [Dr.] Wilson engaged in
euthanasia. . ..". (DPR Br. p. 28) The DPR, however,
continued to prosecute Dr. Wilson for alleged ethical
violations, charging that Dr. Wilson engaged in unethical
«i?
conduct by "administer[ing] an injection of a combination
of morphine and potassium chloride directly in the Henry
Taylor which resulted in Henry Taylor's death." (SR-1-C62
14) Clearly, the body of Taylor was crucial to the
determination of this issue.
H. The Appellate Court Reverses Judge Bush Based
On An Argument Neither Asserted By The
Department Nor Supported By The Facts
On October 9, 1998 the Director of the Department
temporarily suspended Dr. Wilson's medical license. (SR-
1-C29) Upon conclusion of the administrative hearing, on
March 2, 2000 A.L.J. Howe recommended that Dr
Wilson's medical license be suspended for a minimum of
five years. (SR-4-C993) On April 5, 2000 the
Department's Medical Disciplinary Board accepted A.L.J.
Howe's recommendation (SR-4-C969), and on June 26.
2000 the Department's Director adopted the Medical
Disciplinary Board's findings. (SR-6-C 1304)
Upon hearing Dr. Wilson's Complaint on
Administrative Review, Judge Bush reversed the decision
of the Department based on the Department's violation of
Dr. Wilson's constitutional rights to due process of law as
to both the denial of a continuance and the improper
admission into evidence of the conclusions of the ex parte
autopsy. (R-A3-C75-76) The Appellate Court, however,
reversed Judge Bush on the autopsy issue and sent the
matter back down to the Department to reopen the trial
based on (1) the alleged inaction of Dr. Wilson in seeking
to conduct an independent autopsy; and (2) the alleged
failure of Dr. Wilson to challenge the findings in the
autopsy report. (A 14-17) Those arguments, however,
were not asserted by the Department on appeal, and are not
supported by the facts.
REASONS FOR GRANTING THE PETITION
Betore the commencement of the trial, Dr. Wilson
moved to bar any mention of the Cook County Medical
Examiner's autopsy report into evidence because the body
of the patient, Henry Taylor, had been destroyed (cremated)
after the Cook County Medical Examiner had completed
the autopsy, but before Dr. Wilson had the opportunity to
conduct an independent autopsy. (DPR Br. p. 6; SR-2-
C308-16) Although this conduct was in violation of Dr.
Wilson's due process rights, A.L.J. Howe summarily denied
Dr. Wilson's Motion. (SR-2-C316)
During the trial, the test results from the ex parte
autopsy were admitted into evidence, and the Department's
expert relied upon those test results in formulating his
opinions in this case. (SR-3-C749-52) Judge Bush ruled
that A.L.J. Howe erred in not barring the admission of the
autopsy results into evidence when Dr. Wilson was not
given the opportunity to conduct his own independent
autopsy. (R-A3-C76)
The Appellate Court, however, reversed Judge Bush
based on (1) the alleged inaction of Dr. Wilson in seeking
to conduct an independent autopsy; and (2) the alleged
failure of Dr. Wilson to challenge the findings in the
autopsy report. (A 14-17) Accordingly, the points relied
upon for granting the petition are:
(1) Due to the destruction of the body of Dr. Wilson's
patient betore the autopsy report was issued and
before any charges were filed against Dr. Wilson.
Dr. Wilson's constitutionally protected property
rights and constitutional due process rights were
violated by the admission into evidence of the
-14-
(2)
conclusions of an ex parte autopsy where Dr
Wilson was not accorded the Opportunity to
conduct an independent autopsy to challenge the
conclusions of the ex parte autopsy,
Due to the sua sponte assertion of new
allegations against Dr. Wilson on appeal where
Dr. Wilson was not accorded the Opportunity to
defend himself and contest the new allegations
against him, Dr. Wilson's constitutionally
protected property rights and constitutional due
process rights were violated by the decision of
the Court ‘of Appeals to reverse Judge Bush
based on grounds that were never raised by any
party, and grounds not supported by any
evidence in the record.
DUE TO THE DESTRUCTION OF THE BODY
OF DR. WILSON'S PATIENT BEFORE THE
AUTOPSY REPORT WAS ISSUED AND
BEFORE ANY CHARGES WERE FILED
AGAINST DR. WILSON, DR. WILSON'S
CONSTITUTIONALLY PROTECTED
PROPERTY RIGHTS AND CONSTITUTIONAL
DUE PROCESS RIGHTS WERE VIOLATED BY
THE ADMISSION INTO EVIDENCE OF THE
CONCLUSIONS OF AN EX PARTE AUTOPSY
WHERE DR. WILSON WAS NOT ACCORDED
THE OPPORTUNITY TO CONDUCT AN
INDEPENDENT AUTOPSY TO CHALLENGE
THE CONCLUSIONS OF THE EX PARTE
AUTOPSY
The presumptive admissibility of an autopsy report
under 725 ILCS 5/115-5.1 (A 16) does not abrogate Dr.
Wilson's constitutional rights to due process of law in
connection with the revocation of his license to practice
medicine. As noted by the Illinois Supreme court, "a
license to practice medicine is a ‘property right,’ within the
meaning of the constitutional guarantees of due process of
law." Smith, 106 N.E.2d at 726. Moreover. the Illinois
Supreme court has recognized that
[t]he revocation of a license of a [doctor] carries
with it dire consequences. It not only involves
necessarily disgrace and humiliation but it means
the end of his professional career. In a proceeding
SO serious, due process of law requires a definite
charge, adequate notice, and a full, fair and
impartial hearing.
smith, 106 N.E.2d at 728 (emphasis added).
This is not a case where a defendant is seeking to
have the charges against him dismissed because the state or
the plaintiff lost or destroyed evidence. Rather, in this
quasi-criminal proceeding (see In re Ruffalo, 390 U.S. 544.
551 (1968)), as a matter of due process in obtaining a "full,
fair and impartial hearing" (see Smith, 106 N.E.2d at 728),
it is fundamentally unfair for the Department to offer into
evidence the conclusions from an ex parte autopsy (a
medical test on the body of the decedent) when Dr. Wilson
was not accorded an opportunity to test the validity of those
conclusions by conducting an independent autopsy.
In Barker v. Bledsoe, 85 F.R.D. 545 (W.D.OkI.1979)
the court barred the plaintiff in a medical malpractice case
from introducing evidence about the conclusions from an
ex parte autopsy where the body of the decedent was
destroyed -before the defendant had the opportunity to
conduct an independent autopsy. As noted by the court in
Barker,
-16-
[t]he requirement of due process is not an
ephemeral concept, confined to the criminal arena.
but extends to all litigants the standard of
fundamental fairness in federal court
85 F.R_D. at 547. '
After noting the fundamental unfairness of allowing
a plaintiff to introduce into evidence the conclusions from
an €x parte autopsy where the defendant was not accorded
an opportunity to conduct an independent autopsy, the
court in Barker concluded that a court of conscience is "not
only empowered, but required to take appropriate action.
either to dismiss the suit altogether, or to ameliorate the il]-
gotten advantage." Id. at 548. Accordingly, the court in
Barker -- a civil case -- barred the plaintiff from
introducing into evidence the conclusions from an ex parte
autopsy where the body was destroyed before the defendant
could conduct an independent autopsy.
Judge Bush was-correct in ruling that Dr. Wilson's
due process rights were violated by the admission into
evidence of the conclusions from the ex parte autopsy
where Dr. Wilson was not accorded the Opportunity to
conduct an independent autopsy to challenge the
conclusions of the ex parte autopsy. (A 26-29) Upon
appeal, this Court should rule that the Appellate Court erred
in reversing Judge Bush's decision.
-17-
ll. DUE TO THE SUA SPONTE ASSERTION OF
NEW ALLEGATIONS AGAINST DR. WILSON
ON APPEAL WHERE DR. WILSON WAS NOT
ACCORDED THE OPPORTUNITY TO
DEFEND HIMSELF AND CONTEST THE NEW
ALLEGATIONS AGAINST HIM, DR.
WILSON'S CONSTITUTIONALLY
PROTECTED PROPERTY RIGHTS AND
CONSTITUTIONAL DUE PROCESS RIGHTS
WERE VIOLATED BY THE DECISION OF
THE COURT OF APPEALS TO REVERSE
JUDGE BUSH BASED ON GROUNDS THAT
WERE NOT RAISED BY ANY PARTY, AND
GROUNDS NOT SUPPORTED BY ANY
EVIDENCE IN THE RECORD
A. The Evidence Is Clear And Undisputed That Dr.
Wilson Was Not Guilty Of Inaction In Connection
With The Autopsy
In reversing Judge Bush's decision on the
fundamental unfaimess of allowing the Department to offer
into evidence the conclusions from an ex parte autopsy
where Dr. Wilson was not accorded an opportunity to
conduct an independent autopsy (R-A3-C76-77), the Court
of Appeals was critical of Dr. Wilson in not seeking to
obtain an independent autopsy prior to the destruction of
the crucial evidence -- the body of Henry Taylor:
Although Dr. Wilson filed a motion in limine to bar
the introduction of Taylor's autopsy report, Dr.
Wilson never sought an independent autopsy. He is
now seeking to use his inaction as a sword to strike
down the Department's evidence.
-18-
(A 15) The Department, however, never raised
laches/inaction as an issue on appeal. Further, the Court of
Appeals overlooked or misapprehended the undisputed
evidence on that issue. As shown by a full and fair reading
of the record, the facts are clear and undisputed that Dr.
Wilson had no opportunity and no duty to conduct an
independent autopsy prior to the time that the evidence --
the body of Taylor -- was destroyed.
According to the death certificate (SR-6-C 1290),
Taylor was cremated on October 6, 1998. (Id.) While it is
correct that the autopsy was commenced on October Ist
(SR-1-C75), the autopsy report was not issued until
October 8th (SR-1-C79), which was two days after the
body had been destroyed. Accordingly, by the time the
autopsy report was issued on October 8th, and the
Department complaint against Dr. Wilson was filed on
October 9th, the body of Taylor had already been
destroyed.
The clear and undisputed facts of this case do not
support a laches/inaction argument in connection with an
independent autopsy of Taylor. Prior to the issuance of the
autopsy report, and prior to the time that charges were filed
against Dr. Wilson, there was nothing for Dr. Wilson to
refute. By the time the autopsy report was issued on
October 8th, and the Department's complaint against Dr.
Wilson filed on October 9th -- when Dr. Wilson was first
confronted with issues to refute -- Taylor's body had
already been cremated, thus rendering any request for an
independent autopsy a useless act. See Lewis v. Darce
Towing Company, 94 F.R.D. 262, 271 & 272
(W.D.La.1983) The law is well-established that the law
does not require a party to do a useless act. See Daven v.
Downey, 378 Ill. 543, 555, 39 N_E.2d 45, 50 ( 1941).
-19-
The laches/inaction issue relied upon by the Court of
Appeals was not raised by the Department as a basis to
reverse Judge Bush's decision. Further, the clear and
undisputed evidence shows that Dr. Wilson did not sit on
his rights in seeking an independent autopsy. Because the
evidence on that issue is, in fact, clear and undisputed in
favor of Dr. Wilson, this Court should grant Dr. Wilson's
Petition for Certiorari and, upon appeal, affirm Judge
Bush's decision on the fundamental unfairness of allowing
the Department to introduce into evidence the conclusions
from an ex parte autopsy where Dr. Wilson was not
accorded an opportunity to refute those conclusions by
conducting an independent autopsy.
B. The Clear And Undisputed Facts Show That Dr.
Wilson Did, In Fact, Claim That The Autopsy
Report Was Erroneous, Faulty, Or Not Reliable,
And That Dr. Wilson Had, In Fact, Challenged
The Findings In The Autopsy Report
Based on another issue not asserted by the
Department on appeal, the Court of Appeals ruled that
Judge Bush erroneously reversed the decision of the
Department to revoke Dr. Wilson's medical license
"[b]Jecause Dr. Wilson never challenged any findings in the
autopsy report... ..". (A 15) As claimed by the Court of
Appeals,
no suggestion was made [by Dr. Wilson] that the
autopsy report was erroneous, faulty, or not reliable.
Absent such a showing, there is no basis to exclude
the report... . Because Dr. Wilson never challenged
any findings in the autopsy report, there was no
basis to challenge the use of the [autopsy report] as
competent evidence. Therefore, the admission of
the autopsy report in this case cannot be error.
2.
(A 15) The Appellate Court overlooked or misapprehended
the clear and undisputed facts which show that Dr. Wilson
did, in fact, claim "that the autopsy report was erroneous.
faulty, or not reliable", and that Dr. Wilson had. in fact.
"challenged" the findings in the autopsy report.
As noted by the Court of Appeals,
[o]n the first day of the hearing, one of Dr. Wilson's
attorneys, Mr. Zimmerman, made [a] motion[] to
bar any mention of Taylor's autopsy report since Dr.
Wilson had no opportunity to conduct an
independent autopsy on Taylor's body.
(A 3-4) In Dr. Wilson's motion in limine (SR-2-C289). Dr.
Wilson sought to exclude from evidence the conclusions
from the autopsy report because the medical examiner who
wrote the autopsy report, Dr. Kalelkar, was "wrong" in her
conclusions in the autopsy report. (See SR-2-C290-91 46)
Further, at the pre-trial hearing on Dr. Wilson's
motion in limine, Dr. Wilson's counsel pointed out to
A.L.J. Howe that
the way that this body would have been relevant to
Dr. Wilson's defense in this case is that the medical
examiner in her autopsy report made certain
findings which are contrary to the x-rays and other
And some of those examples are set forth [in the
written motion in limine]. * * * [The] autopsy
contradicted objective x-ray and photographic
findings.
(SR-2-C309-10 & 315) Accordingly, the record is clear
that Dr. Wilson did, in fact, claim that the autopsy report
was erroneous, faulty and not reliable, and that Dr. Wilson
did, in fact, challenge the findings in the autopsy report.
Finally, as admitted by the Department,
Wilson objected to the introduction of the autopsy
report because Taylor's body had been cremated and
was unavailable to Wilson to conduct his own
autopsy. * * * Wilson contends that by conducting
his own autopsy he could have cast doubt on
whether the potassium chloride reached Taylor's
heart before he died.
(DPR Reply Br. pp. 20 & 21) Indeed, although in the
autopsy report Dr. Kalelkar concluded that the death of
Taylor was attributed to "Potassium Chloride Intoxication".
with SVC syndrome "significantly contributing to
[Taylor's] death . . "| (SR-1-C79), Dr. Kalelkar's
conclusion as to the alleged potassium chloride intoxication
was not based on any medical testing done on the body of
Yaylor. Rather, Dr. Kalelkar's conclusion in the autopsy of
death caused by potassium chloride intoxication was
simply based on the "story" that she had heard about the
fully-disclosed and fully-documented injection that Dr.
Wilson had administered to Taylor. (SR-5-C 1134)
Had the body of Taylor not been destroyed and had
Dr. Wilson been able to conduct an independent autopsy on
that crucial piece of evidence, Dr. Wilson would have been
able to show, beyond any reasonable doubt, that (1) the
potassium chloride from the injection did not, as alleged,
result in Taylor's death; and (2) Taylor did, in fact, die from
suffocation due to SVC syndrome. In short, although Dr.
Kalelkar concluded in the autopsy report that SVC
"significantly contribut{[ed]} to [Taylor's] death" (SR-1-
C79), an independent autopsy by Dr. Wilson would have
been able to show that Taylor did, in fact, die from
suffocation due to SVC syndrome.
The destruction of the body of Dr. Wilson's patient
deprived Dr. Wilson of the ability to prove the
administration of appropriate palliative care. Should this
practice continue, other doctors -- rightfully fearful of
losing their medical license -- would not render appropriate
palliative care to their patients, who would eventually have
to suffer unnecessarily during the final few moments of
their lives as they unnecessarily agonized through the
painful process of death. "In a proceeding so serious"
(Smith, 106 N.E.2d at 728), Judge Bush was correct in
ruling that it was unfair and a violation of Dr. Wilson's due
process rights for the Department to admit into evidence
the conclusions from the ex parte autopsy when Dr. Wilson
was not accorded the opportunity to conduct an
independent autopsy on the body of Taylor. (R-A3-C76)
The alleged failure of Dr. Wilson to challenge the
validity of the findings in the autopsy report was not raised
by the Department as a basis to reverse Judge Bush's
decision. The clear and undisputed evidence shows that
Dr. Wilson did, in fact, claim that the autopsy report was
erroneous, false or not reliable, and that Dr. Wilson had, in
fact, challenged the findings in the autopsy report. Because
the evidence on that issue is, in fact, clear and undisputed
in favor of Dr. Wilson, the Court should grant Dr. Wilson's
Petition For Writ of Certiorari and, upon appeal, affirm
Judge Bush's decision on the fundamental unfairness of
allowing the Department to introduce into evidence the
conclusions from an ex parte autopsy report where Dr.
Wilson was not accorded an opportunity to refute those
conclusions by conducting an independent autopsy.”
C. Due To The Sua Sponte Assertion Of New
Allegations Against Dr. Wilson On Appeal
Where Dr. Wilson Was Not Accorded The
Opportunity To Defend Himself And Contest
The New Allegations Against Him, Dr.
Wilson's Constitutionally Protected Property
Rights And Constitutional Due Process Rights
Were Violated By The Decision Of The Court
Of Appeals To Reverse Judge Bush Based On
Grounds That Were Not Raised By Any Party,
And Grounds Not Supported By Any Evidence
In The Record
A license to practice medicine (like a license to
practice law) is a “property right" within the meaning of the
constitutional guarantees of due process of law. See Smith,
106 N.E. 2d at 726; In re Ruffalo, 390 U.S. at 550. The
decision of Judge Bush restored that property right to Dr.
Wilson. (A 23-24)
The Court of Appeals, however, reversed the decision
of Judge Bush -- took away Dr. Wilson's property right --
based on an argument that was not raised by any party, and
an argument that was not supported by any evidence in the
record. Since Dr. Wilson was not accorded any notice of
the basis for the Court of Appeals to take away his property
right (his license to practice medicine), and was not
accorded an opportunity to present evidence in his defense
on that issue, the decision of the Court of Appeals to
There were numerous other grounds to reverse and set aside the
crroncous decision of the DPR which were not passed upon by Judge
Bush. Ata minimum. the Appellate Court should have sent the case
back down to Judge Bush to rule on those other grounds.
reverse Judge Bush (on a ground not raised by any party
and a ground not supported by any evidence) constitutes a
violation of Dr. Wilson's Fourteenth Amendment right to
due process of law. See Ruffalo, 390 US. at 551-52:
English v._ Cowell, 10 F.3d 434 (7th Cir. 1993)
CONCLUSION AND PRAYER
Accordingly, Petitioner Dr. Robert Lance Wilson
respectfully requests that: (1) the Court grant Dr. Wilson's
Petition for Writ of Certiorari; (2) upon appeal, the Court
(a) reverse that portion of the Court of Appeals' November
18, 2003 Opinion pertaining to the autopsy issue and the
disposition of the appeal; and (b) affirm the April 10, 2002
decision and judgment of the Circuit Court; and (3) the
Court grant Dr. Wilson such other and further relief to
which he may be entitled, including giving immediate
effect to the decision of Judge Bush and immediate relief
from the over 5-year nightmare which has virtually
destroyed Dr. Wilson's personal and professional life:
The Petition for Writ of Certiorari should be granted.
Se
Respectfully submitted,
ARMSTRONG LAW FIRM
Dated: june 2004.
rmW@on¢
Attorney No. 36232
1324 Dartmouth Road
Flossmoor, IL 60422
(708) 798-1599
Fax: (708) 798-1597
Attorneys for Plaintiff/
Petitioner
Robert Lance Wilson, D.O.
cs
INDEX TO APPENDICES
Appendix A November 18, 2003 Al-21
Opinion of the Illinois
Court of Appeals
Appendix B December 26, 2003 A 22
Decision of the Illinois
Court of Appeals denying
Dr. Wilson's Petition for
Rehearing
Appendix C April 10, 2002 A23-24
Decision of Circuit Court
Judge Bernetta D. Bush
Appendix D _ April 10, 2002 A25-29
Findings by Circuit Court
Judge Bernetta D. Bush
Appendix E March 24, 2004 A30
Order of the Illinois
Supreme Court denying
Discretionary Review
gD
APPENDIX A
No. 1-02-1342
ROBERT LANCE WILSON,
Plaintiff-Appellee,
THE DEPARTMENT OF
PROFESSIONAL
REGULATION,
NIKKI M. ZOLLAR,
former Director of the
Department of Professional
Regulation, and LEONARD
SHERMAN, former Director
SECOND DIVISION
NOVEMBER 18, 2003
) Appeal from the Circuit
) Court of Cook County,
) Chancery Division
)
) No. 00 CH 1057
)
) The Honorable
) Bernetta D. Bush
) Judge Presiding
)
)
of the Department of Professional )
Regulation,
Defendants-Appellants.
JUSTICE GARCIA delivered
the opinion of the court:
In October 1998, the defendant, the Illinois Department of
Professional Regulation (Department), filed an
administrative complaint agai
nst the plaintiff, Robert
Wilson, O.D., alleging (1) gross negligence (225 ILCS
60/22(A)(4) (West 1996)) (count I), and (2) dishonorable.
unethical, and unprofessional conduct (225 ILCS
60/22(A)(5) (West 1996)) (count I). In November 1999. an
administrative hearing was conducted. In March 2000, the
administrative law judge (ALJ) recommended to the
Department that Dr. Wilson's medical license be revoked
for a period of five years. The Department implemented the
ALJ's recommendation. In July 2000, Dr. Wilson filed his
complaint for administrative review in the circuit court. In
Apni 2002, the circuit court reversed and vacated the
license revocation. We affirm in part, reverse in part the
circuit court's rulings and remand to the Department for
further proceedings.
BACKGROUND“
In mid-September 1998, Dr. Wilson, a licensed doctor of
osteopathy specializing in cardiology, acted as a consultant
in the treatment of Henry Taylor. Taylor was suffering
from superior vena cava syndrome, a blockage of the main
chamber of the heart, due to end-stage renal disease.
In late September 1998, Dr. Wilson was summoned to
Taylor's bedside as Taylor began to suffocate due to a
pulmonary compression on his trachea, a complication of
superior vena cava syndrome. Previously, Taylor had
signed do-not-resuscitate and do-not-intubate orders. In an
attempt to relieve Taylor's pain, Dr. Wilson injected Taylor
with at least 10 milligrams of morphine through an
intravenous (IV) line into Taylor's femoral artery (near the
groin). Taylor continued experiencing pain. Dr. Wilson
then injected 40 milliequivalent of undiluted potassium
chlonde through the IV; Taylor died within one minute.
Later that day, Dr. Wilson reported his use of potassium
chloride to Dr. Michael Settecase, the medical director of
Olympia Field's Osteopathic Hospital (Hospital). Drs.
Wilson and Settecase reported Tayloi's death to the Cook
County medical examiner's office (Medical Examiner). The
Medical Examiner conducted Taylor's autopsy, which
revealed the cause of death to be potassium chloride
intoxication; the manner of death was ruled a homicide.
The Olympia Field's police department initiated a criminal
investigation into Taylor's death; however, the Cook
County State's Attorney decided not to criminally prosecute
Dr. Wilson
In early October 1998, the director of the Department,
Nikki Zollar (Department Director), temporarily suspended
Dr. Wilson's medical and controlled substance licenses.
The Department then filed an administrative complaint
against Dr. Wilson seeking to have his license suspended or
revoked because of his use of potassium chloride. The
Department's complaint charged Dr. Wilson with gross
negligence and dishonorable, unethical, and unprofessional
misconduct. See 225 ILCS 60/22(A)(4), (A)(5) (West
1996). In mid-November 1999, the Department conducted
a disciplinary hearing before ALJ Phillip Howe and several
panel members.
License Suspension Hearing, Day One
On the first day of the hearing, one of Dr. Wilson's
attorneys, Mr. Zimmerman, made the following
preliminary motions: (1) to dismiss the Department's
proceedings, claiming they violated Dr. Wilson's due
process rights; (2) to bar any mention of Taylor's autopsy
report since Dr. Wilson had no opportunity to conduct an
independent autopsy on Taylor's body; and (3) to have Dr.
Wilson's expert testify out of order because of a scheduling
conflict involving the expert. The ALJ denied Mr.
Zimmerman's first two motions but granted the third.
Dr. Wilson's expert, Dr. Bruce Waller, a cardiologist and
professor of cardiology, testified that the superior vena
cava is the main chamber of the heart through which blood
that has circulated throughout the body flows before being
sent to the lungs to be oxygenated. After examining
Taylor's premortem and postmortem X rays, Dr. Waller
concluded Taylor's superior vena cava syndrome was the
result of a blood clot totally obstructing the superior vena
cava. The clot forced blood attempting to return to the heart
to flow into adjacent blood vessels and soft tissue. The
transposed blood caused edema (swelling), and as a result,
Taylor's upper extremities (neck, arms, face, and eyes)
became swollen. In Taylor's case, the accumulation of
displaced fluid intensified the swelling in his neck, causing
his trachea to compress, thus preventing air from entering
his lungs, and as a consequence, Taylor began to suffocate.
Dr. Waller testified that notes in the physician's file made it
clear that although Taylor had signed a do-not-resuscitate
order, his treating physician asked if he wanted to be
intubated. Taylor declined and Dr. Wilson was called. Dr.
Waller testified that as Taylor's breathing became
distressed, he was given 2 milligrams of morphine by the
resident physician, 10 milligrams of morphine by Dr.
Wilson, and possibly another 10 milligrams of morphine by
Dr. Wilson. Dr. Waller testified that according to the file.
the dopamine drip, which helps elevate blood pressure, was
turned off, and as a result, Taylor's eyes rolled back into his
head and his respiratory rate diminished. Dr. Wilson then
administered undiluted potassium chloride.
Dr. Waller opined that the undiluted potassium chloride
could not have reached Taylor's heart before it stopped due
to the arterial blockage and respiratory distress Taylor was
experiencing. Dr. Waller based his conclusion on a
Norwegian study in which 30 milliequivalent of diluted
A-4
potassium chloride, gradually infused into the aortas of
patients undergoing open-heart surgery, did not cause the
patients’ hearts to stop. On cross-examination, Dr. Waller
admitted there was no blockage in the inferior vena cava,
the path from the femoral artery (where the undiluted
potassium chloride was introduced by Dr. Wilson) to the
heart. However, Dr. Waller maintained Taylor died because
of his underlying medical condition, and not because
undiluted potassium chloride was administered.
Dr. Waller conceded potassium chloride is a dangerous and
even lethal drug, however, he maintained that 40
milliequivalent was a reasonable amount to administer
under the circumstances. On cross-examination Dr. Waller
acknowledged he had never personally been present in a
hospital setting where 40 milliequivalent of undiluted
potassium chloride was administered to a patient. Dr.
Waller testified that generally, potassium chloride is diluted
before being administered. Dr. Waller also testified that the
American Medical Association's (AMA) ethical rules _
permit the use of potassium chloride for palliative care. ~
At this point, the Department was unable to finish its cross-
examination because of Dr. Waller's scheduling conflict.
The following dialogue ensued with the participants
agreeing to recall Dr. Waller at a later date.
"MR. ZIMMERMAN: Your Honor, the witness needs to
catch a plane, and as a matter of scheduling, I don't know
how you want to handle that.
MR. GOLDBERG: Your Honor, may I suggest that the
witness needs to get another plane. We need to finish our
cross-examination if this witness's testimony is allowed to
stand.
A-5
THE WITNESS: | am on call at five o'clock Indianapolis
time.
[THE ALJ]: Folks, there are two possibilities.
MR. ZIMMERMAN: We can recall him.
[THE ALJ]: Folks, there are two possibilities. Either we
continue today and recess and the doctor can reschedule
whatever he has to do. From his previous statements and
[the way] he's looking at me right now, I can tell he's
thinking that's impossible, that's like moving the world, |
can't do it.
The other possibility is that he comes back at another time.
And the respondent got two hours and 45 minutes worth of
time [for] direct exam[ination], and so therefore, the
Department would get two hours and 45 minutes for cross-
exam[ination]. It's now five after two, and my notes say we
started the actual questioning at 1:23. So if we stop now,
we [are] at 2:05, then we'll just have to schedule and have
him come back later.
MR. ZIMMERMAN: Thank you, Your Honor.
[THE ALJ]: What says the Department?
MR. LYONS: I think that's a good plan.
* * *
[THE ALJ]: So, we are stopping at 2:11. Thank you,
Doctor. We will reschedule you at another time. Do you
have any time that's convenient for this month?
A-6
THE WITNESS: Yes, I'm sure this month. I just can't do it
the next two days.
[THE ALJ]: Fine."
Following the testimony of Dr. Waller, the Department
called Dr. Wilson as an adverse witness. Dr. Wilson
admitted he administered 10 milligrams of morphine to
Taylor and may have also given Taylor !0 more milligrams
of morphine. Dr. Wilson administered the morphine
through Taylor's femoral artery in order to quickly circulate
it. In explaining his use of the femoral artery, Dr. Wilson
explained, "[{Taylor] was clotted up from above. That
[morphine] would not circulate to the heart. If it can't get to
the heart, it's not going to the brain." Dr. Wilson then
conceded that morphine was used to relieve pain, however,
Dr. Wilson concluded the morphine was not working fast
enough to ease Taylor's pain and instructed a nurse to
obtain undiluted potassium chloride although (1) he had
never personally used undiluted potassium chloride on a
dying patient, and (2) he had never seen undiluted
potassium chloride administered to a dying patient. Dr.
Wilson believed administering potassium chloride was
proper palliative care because it would render the patient
unconscious and relieve pain.
Dr. Wilson believed Taylor died of asphyxiation because at
the time he was administering the potassium chloride,
Taylor's trachea collapsed and he was not getting enough
oxygen. Dr. Wilson based his assertion that Taylor died of
asphyxiation on his observations that (1) Taylor's airway
had collapsed and he was at the point of dying when the
potassium chloride was administered, and (2) Taylor wes
dead within one minute of the potassium chloride being
administered.
A-7
License Suspension Hearing, Day Two
Dr. Don Hollandsworth, a staff physician at the Hospital
and Taylor's treating physician, testified for the Department
that the use of morphine is ethically appropriate palliative
care. Dr. Hollandsworth testified he would not use
undiluted potassium chloride to relieve pain during the
dying process.
Next, Dr. Settecase, the medical director of the Hospital,
testified for the Department that he had never used
undiluted potassium chloride or seen it used in the manner
Dr. Wilson used it. Later a panel member asked Dr.
Settecase the following question, "Doctor, if you know, is
potassium chloride the drug that's used for lethal
injection[?]" In response to the question, Dr. Settecase
testified he believed that potassium chloride was used by
the Illinois Department of Corrections for lethal injections.
Dr. Wilson's attorneys objected to this line of questioning
and Dr. Wilson yelled, "I am out of here!" Dr. Wilson's
attorneys moved for a mistrial, their motion was denied.
and they left the hearing room. The hearing was then
recessed for lunch.
Although neither Dr. Wilson nor his attorneys returned to
the hearing room after lunch, the Department continued to
present evidence. Dr. Mark Siegler, an expert in clinical
medical ethics, testified that potassium chloride was an
extremely dangerous drug and if given in an undiluted
form, could cause the heart to stop. Dr. Siegler testified:
"[T]he idea of potassium being an extremely dangerous
drug, extremely dangerous chemical, is well understood:
and the fact that nobody, in my experience, has ever
injected 40 milliequivalent of potassium directly into a
human being, that I have ever witness[ed] or that I have
A-8
ever done, makes me think that this is a drug that is
understood to have the likelihood, given quickly enough
and [in] a high enough dose as 40 milliequivalent injected
as a bolus, to stop the heart."
Dr. Siegler also testified that the Norwegian medical study
relied on by Dr. Waller is distinguishable from the facts
surrounding Taylor's death because (1) the potassium
chloride used in the Norwegian study was diluted, and in
this case, Dr. Wilson administered undiluted potassium
chloride; and (2) the potassium chloride used in the
Norwegian study was gradually circulated through the
patients’ bodies; however, in Taylor's case, Dr. Wilson
administered undiluted potassium chloride through an IV
directly to the heart by way of the femoral artery. Dr.
Siegler speculated the potassium chloride would have
reached Taylor's heart within 30 seconds to one minute
after it was administered. Dr. Siegler testified his
estimation was corroborated by Dr. Wilson's own
testimony regarding his observation that Taylor died within
one minute of the potassium chloride being administered.
Dr. Siegler's testimony asserted morphine was effective for
palliative care because it decreased hunger and pain,
reduced respiration, and induced sleep. Dr. Siegler also
stated that since potassium chloride is more likely than
morphine to cause asystolia (heart stoppage) and death, it is
not ethically acceptable under the AMA ethical rules
governing palliative care. Dr. Siegler concluded in his
testimony that Dr. Wilson's conduct was reckless,
disregarded Taylor's well being, and violated the ethical
standards of the medical profession.
Emiliana Durante, the nurse attending Taylor, testified
morphine was available in the critical care unit where
Taylor was treated. However, potassium chloride was only
available in the intensive care unit. Durante retrieved
potassium chloride from the intensive care unit at Dr.
Wilson's request. Further, although Durante had been a
nurse since 1977, she had never seen potassium chloride
administered in an undiluted form. With her testimony, the
Department rested its case in chief.
License Suspension Hearing, Day Three
On the third day of the license suspension hearing, Mr.
Zimmerman appeared on behalf of Dr. Wilson. Dr. Wilson
was not present. The ALJ told Mr. Zimmerman that the
Department had rested and invited him to present more of
his case. Instead, Mr. Zimmerman requested the
Department's proceedings be stayed pending the outcome
of Dr. Wilson's motion in the federal court to enjoin the
Department's administrative proceedings. Mr. Zimmerman
also informed the ALJ that his client would not participate
in the administrative proceedings unless the federal court
abstained from enjoining the hearing. The ALJ denied the
motion because (1) numerous continuances had been
granted to Dr. Wilson, (2) Dr. Wilson's disruptive conduct
led to his voluntary absence from the hearing, and (3)
procedural mechanisms were available for reopening the
case. Mr. Zimmerman then left the hearing room, the
Department presented its closing argument, and the ALJ
announced, "we will close the hearing."
The federal court refused to enjoin the administrative
proceedings, and in late December 1999, Mr. Zimmerman
sought to reopen proceedings in order to (1) continue Dr.
Waller's cross-examination and (2) present redirect
testimony of Dr. Waller because Mr. Zimmerman believed
the Department had reintroduced a charge that Dr. Wilson
engaged in euthanasia. The Department argued that only
Dr. Waller's cross-examination was cut short and, thus,
only the Department was prejudiced by the unfinished
testimony. The ALJ agreed with the Department and Dr.
Wilson's motion to reopen the proceedings was denied.
In March 2000, the ALJ issued his findings after
considering the testimony, medical records, medical
studies, and Taylor's autopsy report. The ALJ concluded
that Dr. Wilson committed gross negligence and acted
dishonorably and unprofessionally in injecting Taylor with
potassium chloride. The ALJ found Dr. Siegler particularly
credible and Dr. Waller unconvincing. Further, the ALJ
found Dr. Wilson's testimony self-serving and not credible.
The ALJ recommended Dr. Wilson's professional license
be revoked for a minimum of five years and reinstatement
be conditioned on (1) a finding of mental fitness and (2)
completion of ethical education classes.
In April 2000, the Department's medical disciplinary board
(Disciplinary Board) accepted the ALJ's recommendations.
In June 2000, the Department's Director adopted the
Disciplinary Board's findings.~
In July 2000, Dr. Wilson filed his complaint for
administrative review in the circuit court, arguing: (1) the
Department Director's decision was against the manifest
weight of the evidence; (2) the ALJ had abused its
discretion in refusing to reopen the proceedings to continue
Dr. Waller's testimony; and (3) the ALJ committed
reversible error in not barring Taylor's autopsy report.
In April 2002, the circuit court stated:
"In reviewing the standard in which I would look at this
case, the question is whether I would follow the standard of
administrative review which would state that if there is
anything in the record to support the agency's decision, |
was duty bound to affirm that decision, or if | would view
this as [a] matter for de novo review. Given the natures, the
issues in this case, the questions of law, whether there was
a breach of due process procedures, [this] court believes
that the review that it must utilize in this case is the de novo
[standard of] review because there are questions of law that
must be determined, rather than the lesser standard of if
there is anything that manifests the evidence to support the
agency's decision."
In reviewing the Department Director's decision de novo,
the circuit court reversed and vacated the decision to
revoke Dr. Wilson's medical license. The circuit court did
not find the Department Director's revocation of Dr.
Wilson's medical license against the manifest weight of the
evidence; instead, the circuit court determined (1) the ALJ's
denial of Dr. Wilson's request to bar the autopsy report was
reversible error, and (2) the ALJ's refusal to reopen the
proceedings and allow Dr. Wilson to recall Dr. Waller
violated Dr. Wilson's right to due process. Regarding the
autopsy report, the circuit court stated, "[Dr. Wilson] did
ask that the evidence of the autopsy be barred because [Dr.
Wilson] did not have an opportunity to review the body. |
believe that was a proper motion, and that motion should
have been granted. And I believe that, in addition to the
denial of the expert witness, constituted reversible error."
ANALYSIS
The parties have asked us to decide whether the ALJ
abused his discretion when he (1) admitted Taylor's
autopsy report into evidence and (2) refused to reopen the
administrative hearing proceedings to allow Dr. Waller to
be reexamined.
Generally, this court reviews the final decision of an
administrative agency and not the decision of the circuit
court. Gounaris v. City of Chicago, 321 Ill. App. 3d 487,
491, 747 N.E.2d 1025 (2001), citing Home Interiors &
Gifts, Inc. v. Department of Revenue, 318 Il. App. 3d 205,
209. 741 N.E.2d 998 (2000). However, because the circuit
court reversed the license revocation based on certain legal
grounds, we begin our review of the Department Director's
decision with the basis for the circuit court's reversal to
determine whether its reversal is founded in law. See,
generally, /kpoh v. Zollar, 321 Ill. App. 34 41, 746 N.E.2d
776 (2001) (circuit court upheld in part administrative
agency's decision and remanded for further proceedings, on
appeal circuit court order found not final and appealable.) If
so, we should affirm; if not, we may reverse.
I. Taylor's Autopsy Report and Examination of Dr.
Waller
Agencies have broad discretion in conducting
administrative hearings. Sheehan v. Board of Fire & Police
Commissioners, 158 Ill. App. 3d 275, 286, 509 N.E.2d 467
(1987). However, "a license to practice medicine is a
‘property right,’ within the meaning of the constitutional
guarantees of due process of law." Smith v. Department of
Registration & Education, 412 Ill. 332, 340-41, 106 N.E.2d
722 (1952). Therefore, the basic due process rights of
fairness and impartiality must be respected. Abrahamson v.
Illinois Department of Professional Regulation, 153 Ul. 2d
76, 92-93, 606 N.E.2d 1111 (1992).
The circuit court in this case found "a question of law" in
the issues presented by this case as "whether there was a
breach of due process procedures" in the ALJ's denial of
Dr. Wilson's (1) motion in /imine to exclude the autopsy
report and (2) motion to reopen proceedings and recall Dr.
Waller. The circuit court used a de novo standard of review
in its analysis of the issues. In the context of appellate
revrew of an administrative agency's decision, a de novo
standard of review is limited to "interpretation of a statute."
Cole v. Department of Public Health, 329 Ill. App. 3d 261,
264, 767 N.E.2d 909 (2002). Therefore, the circuit court's
use of a de novo standard in this case was error. An
administrative agency's decision regarding the conduct of
its hearing and the introduction of evidence is properly
governed by an abuse of discretion standard and subject to
reversal only if there is demonstrable prejudice to the party.
See Bickham v. Selcke, 216 Ill. App. 3d 453, 459-60, 576
N.E.2d 975 (1991).
A. Taylor's Autopsy Report
The Department argues that the circuit court erred in
finding reversible error in the ALJ's decision to allow the
Medical Examiner's autopsy report into evidence. Dr.
Wilson argues the ALJ did err in admitting the results of
Taylor's autopsy into evidence because Dr. Wilson was not
able to conduct an autopsy independent of the Medical
Examiner. The circuit court stated that, "while [Dr. Wilson]
didn't subpoena the parties or ask to bring [the parties] in,"
Dr. Wilson's motion to bar the autopsy evidence was proper
and should have been granted. We agree with the
Department that the circuit court was incorrect as a matter
of law.
Following Taylor's death, the Medical Examiner conducted
an autopsy that revealed the cause of death as potassium
chloride intoxication. Taylor's body was then released to
his family. Dr. Wilson had no right to conduct an
independent autopsy on the body of Taylor without the
explicit permission of Taylor's next of kin. Rekosh v. Parks,
316 Ill. App. 3d 58, 68, 735 N.E.2d 765 (2000) (while there
is no property right in a decedent's body, the next of kin
have a right to the possession of a decedent's remains in
order to make an appropriate disposition thereof).
Therefore, permission to independently autopsy Taylor's
body did not rest with the Medical Examiner or the
Department; instead, permission could only be granted by
Taylor's next of kin.
Although Dr. Wilson filed a motion i” /imine to bar the
introduction of Taylor's autopsy report, Dr. Wilson never
sought an independent autopsy. He is now seeking to use
his inaction as a sword to strike down the Department's
evidence. Moreover, no suggestion was made that the
autopsy report was erroneous, faulty, or not reliable.
Absent such a showing, there is no basis to exclude the
report. The records of a Medical Examiner will be received
as competent evidence in any criminal or civil action. See
Heitz v. Hogan, 134 Ill. App. 3d 352, 357, 480 N.E.2d 185
(1985); 725 ILCS 5/115-5.1 (West 1996) ("In any civil or
criminal action the records of the coroner's medical or
laboratory examiner summanizing and detailing the
performance of his or her official duties in performing
medical examinations upon deceased persons *** shall be
received as competent evidence in any court of this State").
Because Dr. Wilson never challenged any findings in the
autopsy report, there was no basis to challenge the use of
the Medical Examiner's death certificate as competent
evidence. Therefore, the admission of the autopsy report in
this case cannot be error.
Dr. Wilson urges us to follow the decisions of People v.
Newberry, 265 lll. App. 3d 688, 638 N.E.2d 1196 (1994),
and People v. Dodsworth, 60 Ill. App. 3d 207, 376 N.E.2d
449 (1978), however, those cases are readily
distinguishable. Both involved criminal defendants charged
with controlled-substance-related offenses that sought to
bolster their defenses by testing substances the State
identified as illegal. Dr. Wilson's reliance on criminal law
standards regarding the destruction of evidence is
misplaced. Although due process rights are present in both
civil and criminal cases, even criminal due process, which
affords greater protection, does not mandate "an
undifferentiated and absolute duty to retain and to preserve
all material that might be of conceivable evidentiary
significance." Arizona v. Youngblood, 488 U.S. 51, 58, 102
L. Ed. 2d 281, 289, 109 S. Ct. 333, 337 (1988).
The admission of the Medical Examiner's autopsy report
and denial of Dr. Wilson's motion in /imine to exclude it
were evidentiary issues. An administrative agency's
decision regarding the admission of evidence is
discretionary and should be reviewed as such. Morelli v.
Ward, 315 Ill. App. 3d 492, 497, 734 N.E.2d 87 (2000).
Our legislature has deemed the result of a Medical
Examiner's inquest sufficient for evidentiary purposes. See
725 ILCS 5/115-5.1 (West 1996). Based on the
presumptive admissibility of the autopsy report and the
absence of any substantive challenge to the contents of the
report, we reverse the circuit court and find that the ALJ's
decision to allow the autopsy into evidence was not an
abuse of discretion. More/li, 315 Ill. App. 3d at 497.B.
Motion to Reexamine Dr. Waller
The ALJ denied Dr. Wilson's motion to reopen the
proceedings and recall Dr. Waller. The Department argues
the ALJ did not abuse his discretion in refusing to give Dr.
Wilson the opportunity to recall Dr. Waller because (1) Dr.
Wilson refused to participate in the administrative
proceedings, (2) Dr. Wilson was not diligent in preserving
his rights, and (3) there was no prejudice. Dr. Wilson
argues the ALJ's denial of his motion to reopen the
proceedings violated his due process rights.
a 2S
STE : Ca a SS RL, ATOR NN A oa
The circuit court found the ALJ's denial of Dr. Wilson's
motion to reopen the proceedings and recall Dr. Waller was
reversible error. Although the circuit court used an
incorrect standard of review in its analysis of this issue, we
find the ALJ did abuse its discretion in failing to grant Dr.
Wilson's motion. See Bickham, 216 Ill. App. 3d at 459-60
(an administrative agency's decision regarding the conduct
of a hearing is governed by an abuse of discretion
standard).
Although we review the ALJ's denial of Dr. Wilson's
motion to reopen with great deference (People v. Coleman,
183 Ill.2d 366, 387, 701 N.E.2d 1063 (1998)), the
revocation of a professional license carnes with it dire
consequences (Smith, 412 Ill. at 344). "In a proceeding so
serious, due process of law requires a definite charge,
adequate notice, and a full, fair and impartial hearing."
Smith, 412 Ill. at 344. Therefore, under the circumstances
of this case, justice demanded Dr. Wilson be given a
reasonable opportunity to recall his expert witness. Lindeen
v. Jilinois State Police Merit Board, 25 Il. 2d 349, 352, 185
N_E.2d 206 (1962).
Even though Dr. Wilson did not aid his case by leaving the
administrative hearing, his decision to walk out of the
proceeding did not abridge his right to a full opportunity to
present his case. Moreover, although the Department did
not pursue its right to a complete cross-examination of Dr.
Waller, Dr. Wilson's right to redirect his expert witness is
independent of the State's decision whether or not to
continue with its cross-examination. See Six-Brothers King
Drive Supermarket, Inc. v. Department of Revenue, 192 Ill.
App. 3d 976, 983-84, 549 N.E.2d 586 (1989) ("[b]Jasic
notions of fair play require that parties have an opportunity
to cross-examine, explain or refute facts which form the
basis for an administrative agency's adjudication").
Dr. Waller's testimony ended in the midst of the
Department's cross-examination. The ALJ, the Department,
and Dr. Wilson's attorneys agreed Dr. Waller would he
recalled at a later date. At the time of the agreement, Dr.
Waller made it clear he was not available until affer
November 18, the third and final day of the hearing.
Therefore, Dr. Waller could have returned to testify at the
hearing as early as November 19. Such a short delay would
have presented no prejudice to the Department but would
have allowed Dr. Wilson a full opportunity to present his
Case, as justice requires.
"[D]espite the added expense and inconvenience
rescheduling the hearing might have caused [the
Department] *** the reason[s] for the continuance [were]
legitimate, granting it was required to meet the ends of
justice." U/lmen v. Department of Registration &
Education, 67 Ill. App. 3d 519, 523, 385 N.E.2d 58 (1978).
In the first instance, Dr. Wilson was not able to testify until
after November 18, the date Dr. Wilson was scheduled to
continue with his defense. Further, because Dr. Wilson
called Dr. Waller to testify at the beginning of the
administrative hearing, Dr. Waller was unable to dispute
the testimony of the Department's experts regarding
whether or not undiluted potassium chloride was a proper
palliative agent. Moreover, in its brief to this court the
Department admits, "the question of ethics and professional
responsibility in caring for dying patients was a matter for
the experts: [Drs.] Waller and Siegler." Significantly, the
ALJ found the testimony of the Department's expert, Dr.
Siegler, more convincing than the testimony of Dr.
Wilson's expert, Dr. Waller, although Dr. Waller's
testimony was incomplete.
Although we agree that the ALJ was correct in not delaying
the Department's proceedings against Dr. Wilson while he
pursued an action in federal court, there is a difference
between holding proceedings in abeyance and limiting the
evidence that may be presented for consideration. "A
continuance required by the ends of justice should not be
denied, and a refusal to grant such a continuance has been
held to be an abuse of discretion warranting reversal."
Ullmen, 67 Ul. App. 3d at 522, citing Brown v. Air
Pollution Control Board, 37 Il. 2d 450, 454-55, 377
N E.2d 1297 (1967). An administrative agency possesses
broad discretion in determining whether to allow a
continuance. Wegmann vy. Department of Registration &
/ducation, 61 Ill. App. 3d 352, 357, 377 N.E.2d 1297
(1978). "Such discretion, however, 'must be exercised
judiciously, and not arbitrarily’ so as to satisfy the ends of
justice." Bickham, 216 Ill. App. 3d at 459, quoting Brown,
37 Ill. 2d at 454. "Under the special circumstances of this
case, it is our opinion that the ends of justice and due
process would have been better served if [Dr. Wilson's]
request [to reopen the proceedings] had been allowed."
Smith, 412 Ill. at 343. Based on our review of the
administrative hearing, we find that in considering Dr.
Wilson's motion to reopen the proceedings so that he could
present a complete defense by calling his expert witness in
redirect and possible rebuttal to the State's expert, the ALJ
abused his discretion in denying Dr. Wilson's motion.
Therefore, because it was an abuse of discretion to deny Dr.
Wilson's motion to reopen the proceedings in order to recall
his expert, Dr. Waller, the matter should have been
remanded by the circuit court. See Brown, 37 Ill. 2d at 454-
57 (ordering remand where agency erred in not granting a
continuance); see also U///men, 67 Ill. App. 3d at 522-23.
CONCLUSION
The judgment of the circuit court is affirmed as to its
finding that the ALJ abused his discretion in denying Dr.
Wilson's motion to reopen the proceedings, reversed as to
its finding that the ALJ abused his discretion in allowing
the Medical Examiner's autopsy report into evidence. The
circuit court's order vacating the license revocation is itself
vacated and this matter is remanded to the Department with
directions to allow Dr. Wilson a reasonable continuance to
recall his expert witness.
Affirmed in part, reversed in part and remanded for further
proceedings before the Department.
CAHILL and BURKE, JJ.. concur.
|. Although Dr. Wilson asserts the Department "did not
fairly summarize the facts," as pointed out by the
Department, Dr. Wiison failed to (1) demonstrate how the
Department's statement of facts violated Supreme Court
Rule 341(e)(6) (188 Ill. 2d R. 341(e)(6)) or (2) supply a
counterstatement of facts supported by citation to the
record. Further, that section of Dr. Wilson's brief asserting
that the Department's statement of facts is unfair is riddled
with argument and cannot itself constitute an appropriate
statement of facts as mandated by the rule. See 188 III. 2d
Rs. 341(f), (e)(6); Aboufariss v. City of De Kalb, 305 Il.
App. 3d 1054, 1058, 713 N.E.2d 804 (1999) (statement of
facts violating Rule 341(e)(6) (188 Ill. 2d R. 341(e)(6)) will
not be considered). Therefore. Dr. Wilson's comments
regarding the Department's statement of facts will be
disregarded.
2. "'Palliative care' means treatment to provide for the
reduction or abatement of pain *** rather than treatment
A-20
aimed at investigation and intervention for the purpose of
cure or inappropriate prolongation of life." 210 ILCS
60/3(1) (West 1996).
3. Although the Department's Director adopted the
Disciplinary Board's findings, the Department's Director
did not adopt the Disciplinary Board's recommendations for
restoring Dr. Wilson's medical and controlled substance
licenses pursuant to Ala Albazzaz v. Department of
Professional Regulation, 314 Ul. App. 3d 97, 731 N.E.2d
787 (2000).
4 Dr. Wilson contends in his brief that "[t]here were
numerous other grounds for reversal of the decision of the
[Department] which support [the circuit court's] decision."
Dr. Wilson has sought to "incorporate" these by reference
to certain documents filed with the circuit court, rather than
setting out the arguments i” foto. We find this "reference"
"to other grounds for reversal" to violate Supreme Court
Rules 341(e)(7) and (f) (188 Ill. 2d Rs. 341(e)(7) & (f)), the
latter of which states that arguments "shall contain the
contentions of the party *** with citation of the authorities
and the pages of the record relied on" and "[pJoints not
argued are waived." Because Dr. Wilson's "incorporated
arguments" have not been briefed for this court, we find
them forfeited. See generally //eming v. County of Kane,
855 F.2d 496, 498 (7th Cir. 1988) (parties should not adopt
briefs previously filed in support of motions at the district
court level because it (T) results in a brief in excess of 50
pages and (2) confuses the issues presented).
APPENDIX B
ORDER
IN THE APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
ROBERT LANCE WILSON,
Plaintiff-Appellee,
V.
THE DEPARTMENT OF PROFESSIONAL
REGULATION, NIKKI M. ZOLLAR,
former Director of the Department
of Professional Regulation; and
LEONARD SHERMAN, former Director
of the Department of Professional
Regulation,
Detendants-Appellants.
ORDER December 26, 2003
\
This cause coming to be heard on the Plaintiff — Appellee’s
Petition for Rehearing, the Court being fully advised in the
premises:
IT IS HEREBY ORDERED that the Petition for Rehearing
is denied é e
Justices Cahill, Garcia and Burke
A-22
_ .
APPENDIX C
IN THE CIRCUIT COURT OF COOK COUNTY,
ILLINOIS
ROBERT LANCE WILSON D.O.,)
)
VS. ) No. 00 CH 11057
)
ILLINOIS DEPARTMENT )
OF PROFESSIONAL )
REGULATION, et. al., )
ORDER
This matter coming on for hearing on plaintiff's complaint
in administrative review, due notice given, all parties
present, the Court being fully advised in the premises,
IT IS HEREBY ORDERED:
|. For the reasons stated in the record, the order of the
Illinois Department of Professional Regulation revoking
Dr. Robert Lance Wilson’s medical and controlled
substance licenses is hereby reversed and vacated.
2. Defendants’ oral motion to stay enforcement of this
order pending appeal is granted.
ENTERED: April 10,
2002
Attorney No: 34418
Name: Tom Zimmerman S
Atty For: Dr. Wilson Judge Bernetta
Bush
Address: 100 W. Monroe St.,
Ste. 1300
Chicago/State/Zip: Chicago, IL 60603
Telephone: 312-440-0020
DOROTHY BROWN, CLERK OF THE CIRCUIT
COURT OF COOK COUNTY, ILLINOIS
A-24
APPENDIX D
ROBERT LANCE WILSON, )
)
Plaintiff: )
)
VS ) No. 00 CH 11057
)
DEPARTMENT OF )
REGULATION, )
)
Defendant. )
REPORT OF PROCEEDINGS
REPORT OF PROCEEDINGS of the hearing before the
Honorable BERNETTA BUSH, on the 10th day of April,
2002
APPEARANCES:
MR. ROBERT HOLSTEIN,
for the petitioner.
MESSRS. TOM ZIMMERMAN and
DEAN ARMSTRONG,
for the plaintiff.
MR. DAVID VANDERBURGT,
for the defendant.
FILED 02 AUG - 7 AM 11:45
CIRCUIT COURT OF COOK COUNTY
CHANCERY DIVISION
Roberta Kay Brown, CSR, RPR
Official Court Reporter
License No. 084-001666
69 W. Washington, 9th FI.
Chicago, Ill. 60602
312-603-8400
THE COURT: I have had an opportunity to, unlike counsel
suggests, to pour through pages of the transcript, to read all
of the documents in this case, because I took it to be of
significant importance to be sure that I understood all of the
issues in the case because it dealt with an issue, or at least
potentially an issue, that could have wide ranging affect on
both the medical community
70
and also Doctor Wilson and that he is being deprived of his
liberty. In reviewing the standard in which I would look at
this case, the question is whether I would follow the
standard of administrative review which would state that if
there is anything in the record to support the agency's
decision, | was duty bound to affirm that decision, or if I
would view this as a matter for de novo review. Given the
natures, the issues in the case, the questions of law,
whether there was a breach or due process procedures, the
court believes that the review that it must utilize in this case
is the de novo review because there are questions of law
that must be determined, rather than the lesser standard of
if there is anything that manifests the evidence to support
the agency's decision would be the basis for me in making
my determination.
Now, in reviewing those factors from a de novo perspective
and taking the issues raised by the parties for the basis of
whether | was going to reverse or affirm, | have looked at
the breach of the agreement to recall the expert. | think that
is like a critical issue in this case because the testimony of
the expert goes to what procedures would be appropriate
under the circumstances. Is it true that three other doctors
testified about what occurred. But the case requires, the
case law and the standards require that an expert
experienced in the area be allowed to testify. Now, is it true
that the parties walked out. It is also true that they should
not have been allowed, in my view, to put on their, put on -
- they probably should not have been allowed a
continuance to put their case on because it was their
voluntary decision not to proceed with the case. But their
request was to recall the expert in the case, and they were
going to let that rest as their entire case. I believe the denial
of the allowing them to recall Doctor Waller to give his
continued testimony was reversible error. I believe that
they had an absolute right to have Doctor Waller recalled,
and they would have had to stand on whatever he did.
They certainly would have not been able to -- I mean, he
denied the continuance, and that was probably proper under
the circumstances for them to continue to stay the case.
But I| think it was import for him to deny the opportunity to
recall the expert that he agreed that he allowed them to do,
and that is all they planned *~ put on as their case. He could
have certainly denied them: the opportunity to put on any
additional witnesses. But I think at least in order to make
the record complete, because you have had the doctor, the
testimony of doctor, the doctor, the name begins with an §S,
Siegler, Doctor Siegler talking about what the standard of
care was, talking about the nature of the injection, whether
it can be lethal or not, and that would have cured the
problem of the denial of cross-examination, because then
A-27
they would have been able to raise and address the issues
raised even by doctor, even the question that Doctor Siegler
was asked by the panel regarding the nature. I think the
refusal to allow him to testify and clear up any issues.
because he was the expert, to address the question that
Doctor Siegler testified to regarding the amount of time,
amount of time, and to allow -- I don't know if you guys
continued to cross-examine. Even if you rested, it was clear
in the record that they raised some issue regarding the
cross-examination, and the hearing officer instructed them
that they would be able to make that correction at the time
of the, at the time that Doctor Waller was recalled. That
alone, in my view, would have corrected all of the other
issues that were raised, denial of the cross-examination,
whether they complied with the standard of care, whether
they failed to prove their charges, because they would have
had an opportunity at lease to address those questions
through, through their expert. At least that is my view.
And I believe the failure to do that is reversible error.
74
I am not going to get into whether what the doctor did was
incorrect or whether what he did was not correct. That is
not what I am looking at at this point. | am looking clearly
at the procedural issues in his case. I believe that he had a
right to due process of law. I do not believe that due
process of law was afforded to him. I also had problems
with the fact they did not have an opportunity to challenge
the autopsy reports. They did -- while they didn't subpoena
the parties or ask to bring them in, they did ask that the
evidence of the autopsy be barred because they did not
have an opportunity to review the body. I believe that that
was a proper motion, and that motion should have been
granted. And I believe that in addition to the denial of the
expert witness constituted reversible error. | am going to
reverse for those reasons.
A-28
MR. ZIMMERMAN: Thank you.
MR. VANDERBURGT.: Just a straight out
reversal. You're not going remanding?
THE COURT: Straight out reversal.
we
Not remanding. The reason | am not remanding, | will tell
you why I am not remanding. | believe that -- | don't
believe, first of all, that they can correct the problem
regarding the, regarding the autopsy problem. I don't
believe that they can ever correct the fact that that
testimony was allowed in and was used as a basis for the
department's expert testifying. I don't believe that that is a
correctable process. Whether or not -- and it could have
been addressed, though, if the expert had been allowed to
testify. That is just my belief.
MR. VANDERBURGT: So, the court is determining that
there is no way to remedy that by remanding it.
THE COURT: That is correct. There is no way to remedy
the inclusion of the autopsy information in the, allowed in.
Yeah, that is what | am saying. Right.
MR. VANDERBURGT.: The only other thing I need, Your
Honor, then, is | would make an oral motion to stay your
decision pending appeal.
76
THE COURT: That is correct. You have that.
MR. VANDERBURGT.: Thank you.
THE COURT: Okay.
MR. ZIMMERMAN: Thank you.
DR. WILSON: Thank you, Your Honor.
WHICH WAS ALL THE PROCEEDINGS HAD IN THE
ABOVE ENTITLED CAUSE.
77
A-29
APPENDIX E
97766
SUPREME COURT OF ILLINOIS
CLERK OF THE COURT
SUPREME COURT BUILDING SPRINGFIELD,
ILLINOIS 62701
(217) 782-2035
MARCH 24, 2004
Mr. F. Dean Armstrong
F. Dean Armstrong, P.C,
639 Perth
Flossmoor, I] 60422
No. 97766 — Robert Lance Wilson, D.O. petitioner, v
Illinois Department of Professional Regulation et al., ect.,
respondent. Leave to appeal, Appellate Court, First District
The Supreme Court today DENIED the petition for
leave to appeal in the above entitled cause.
The mandate of this Court will issue to the Appellate
Court on Apnil 15, 2004
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.