Caldwell v. Department of Professional Regulation
Annotate this Case
FIRST DIVISION
August 25, 1997
No. 1-95-3599
EARL N. CALDWELL, ) Appeal from the
) Circuit Court
Plaintiff-Appellant, ) of Cook County.
)
v. )
)
THE DEPARTMENT OF PROFESSIONAL )
REGULATION, NIKKI M. ZOLLAR, )
Director, and THE MEDICAL ) Honorable
DISCIPLINARY BOARD OF THE ) MARGARET McBRIDE,
DEPARTMENT OF PROFESSIONAL ) Judge Presiding.
REGULATION, )
)
Defendants-Appellees. )
JUSTICE BUCKLEY delivered the opinion of the court:
Plaintiff, Dr. Earl N. Caldwell, brought an action in the
circuit court of Cook County against the Illinois Department of
Professional Regulation (the Department), the Department's
director, Nikki M. Zollar (the Director), and the Department's
Medical Disciplinary Board. Plaintiff's complaint sought
administrative review of the Director's decisions to place
plaintiff's medical license on probation for five years, to
revoke plaintiff's controlled substances license, and to fine
plaintiff $20,000. The circuit court affirmed the Director's
decision, and plaintiff appealed. The sole issue raised on
appeal is whether the circuit court erred in finding that the
Director's decision was not contrary to the manifest weight of
the evidence.
On October 18, 1990, the Department filed a 20-count
complaint against plaintiff. Counts I through XVI alleged that
plaintiff overcharged for medical services and charged for
services that were unnecessary or not provided. The hearing
officer resolved these counts in favor of plaintiff, and they are
not relevant to the instant appeal.
Counts XVII through XX alleged that, between 1984 and 1990,
plaintiff prescribed controlled substances to a patient,
Christine Barnes, for nontherapeutic purposes in violation of the
Illinois Medical Practice Act (Ill. Rev. Stat. 1985, ch. 111,
par. 4433), the Illinois Medical Practice Act of 1987 (225 ILCS
60/22(A) (West 1994)), and the Illinois Controlled Substances Act
(720 ILCS 570/304, 312 (West 1994)). In each of these counts,
the Department sought that plaintiff's medical license be
suspended or revoked or that plaintiff be otherwise disciplined.
At various times between June 10, 1991, and September 26,
1991, a hearing on the complaint was held before the assigned
hearing officer. Plaintiff testified on his own behalf. He
stated that he first treated Barnes in 1984 and continues to
treat her through the time of the hearing. Barnes has suffered
from numerous ailments, including hypertension, arthritis,
obesity, and a herniated disc in her back.
Plaintiff treated Barnes by conducting physical examinations
and prescribing medications. The Department introduced into
evidence copies of at least 74 prescriptions plaintiff issued to
Barnes for various pain killers and tranquilizers. Plaintiff
identified each of these prescriptions, most of which authorized
at least one refill.
The drugs prescribed by plaintiff were Darvocet N-100,
meprobomate, phenobarbital, and Tylenol-4. Darvocet and Tylenol-
4 are analgesics used to relieve mild to moderate pain.
Meprobomate is a tranquilizer that plaintiff testified can be
used as a muscle relaxant. Phenobarbital is a sedative. All of
these drugs are controlled substances and are capable of causing
dependency. The Physician's Desk Reference describes each of
them as having a "high potential for abuse."
In 1988, Barnes began seeking refills too quickly. She
explained to plaintiff that she was depleting her supply more
quickly than the rate prescribed because she was giving some of
the pills to her husband and daughter. Plaintiff instructed
Barnes that if her husband and daughter needed medications, they
would have to be examined. Plaintiff did not change Barnes'
prescriptions after this discussion.
Plaintiff testified that he believes his treatment of
Christine Barnes was consistent with accepted standards of
medical care. Plaintiff never detected any signs that Barnes was
becoming dependent on any of the medications he prescribed.
Dr. Lafayette Singleton testified as an expert witness on
plaintiff's behalf. Dr. Singleton is board certified in
neurology, a field that includes treatment of lower back pain.
Dr. Singleton testified that a proper course of treatment for a
patient such as Christine Barnes would include physical therapy
and prescriptions for analgesics and muscle relaxants. It would
not be improper to prescribe these medications again if the
patient continued to experience pain. Under questioning from the
hearing officer, Dr. Singleton testified that a patient who seeks
numerous prescriptions for Darvocet and Tylenol-4, with refills,
in the space of two months may be displaying signs of addiction.
Earnest Barnes, Christine Barnes' husband, testified that he
never consulted plaintiff as a physician. He also stated that in
November 1989 he contacted plaintiff, complaining that his wife
was addicted to pain pills. He asked plaintiff to help her stop
taking the pills, but the prescriptions continued. On April 12,
1990, Mr. Barnes found his wife on the bathroom floor unable to
stand because she had taken too many pills. He called the
paramedics, who took Christine to St. Francis Hospital. She
remained there for four or five days. After her release from the
hospital, Christine continued to see plaintiff, and plaintiff
continued to prescribe the same drugs for her. Christine was
still seeing plaintiff at the time of the hearing. Mr. Barnes
testified that he never took any of his wife's pain pills.
Dr. Laszlo Koos testified that he was on duty at St. Francis
Hospital when Barnes was admitted on April 12, 1990. Dr. Koos
ordered tests, which indicated that Barnes had suffered a drug
overdose from ingesting a combination of phenobarbital,
meprobamate, and Darvocet.
Finally, Dr. Stephen Czarnecki testified as an expert
witness for the Department. Dr. Czarnecki is board certified in
both cardiology and internal medicine. Prior to testifying, he
reviewed insurance claim forms submitted by plaintiff for the
treatment of Christine Barnes, the prescriptions plaintiff issued
to Barnes, and some of plaintiff's progress notes concerning
Barnes.
Dr. Czarnecki testified that in his opinion, the
prescriptions did not conform to accepted medical standards. He
stated that the prescriptions were excessive in quantity, and
many of them were inappropriate for Barnes' ailments.
Specifically, Dr. Czarnecki testified that, all of the drugs
prescribed by plaintiff are intended to be for short-term use. A
treating physician should use these drugs to alleviate the
patient's pain while other treatments are used to address the
cause of the pain. Dr. Czarnecki further testified that
simultaneous prescriptions for Darvocet and Tylenol-4 is "sort of
gilding the lily." Moreover, these medications should be used
very cautiously when taken with phenobarbital or meprobamate.
Dr. Czarnecki concluded that, in his opinion, the continued
prescriptions of Darvocet, Tylenol-4, meprobamate, and
phenobarbital served no therapeutic purpose. Also, attempts to
refill such prescriptions too soon indicate that the patient may
be developing an addiction to the medication, which should cause
the patient's doctor to stop issuing the prescriptions.
On November 27, 1991, the hearing officer released his
report and recommendation. The factual findings in the report
show that Barnes received prescriptions from plaintiff for
Darvocet N-100, meprobamate, phenobarbital, and Tylenol-4 on 122
occasions between February 1986 and September 1990. The report
stated that Barnes was a narcotic-dependent person and that
plaintiff continued to prescribe controlled substances when he
knew or should have know of her dependency. The hearing officer
found that the prescriptions were issued in a nontherapeutic
manner with recklessness and disregard for the patient's well-
being. He further specifically found that all of the witnesses
who testified during the hearing, except plaintiff, were
credible. Plaintiff's testimony was deemed not credible.
The hearing officer found that the Department had proved
counts XVII through XX by clear and convincing evidence. As a
result, he recommended that plaintiff's medical license be placed
on probation for five years, that his controlled substances
license be revoked, and that plaintiff be fined $20,000. Both
the Medical Disciplinary Board and the Director adopted the
hearing officer's findings of fact and conclusions of law. On
May 13, 1992, the Director issued a decision imposing the
sanctions recommended by the hearing officer.
On June 16, 1992, plaintiff filed an action for
administrative review. On May 31, 1995, the circuit court
affirmed the Director's decision. Plaintiff filed a motion for
reconsideration that the circuit court denied on September 15,
1995. Plaintiff filed a late notice of appeal, which this court
allowed on November 8, 1995.
The prescriptions at issue in this case were written between
1984 and 1990. The Illinois Medical Practice Act was amended in
1987, and, therefore, plaintiff was charged under the Act as it
existed both before and after the amendment. Nonetheless, the
relevant provisions are substantively the same. The 1987 statute
provides:
"The Department may revoke, suspend, place on
probationary status, or take any other disciplinary
action as the Department may deem proper with regard
to the license or visiting professor permit of any
person issued under this Act to practice medicine,
*** upon any of the following grounds:
* * *
4. Gross negligence in practice under this
Act;
* * *
17. Prescribing, selling, administering,
distributing, giving or selfadministering any drug
classified as a controlled substance (designated
product) or narcotic for other than medically
accepted therapeutic purposes." 225 ILCS 60/22(A)
(4),(17) (West 1992),
see also Ill. Rev. Stat. 1985, ch. 111, par. 4433 (4)(17)
(containing substantively same provisions before 1987 amendment).
Likewise, the Illinois Controlled Substances Act provides that
the Department may revoke or suspend a physician's controlled
substances license for similar conduct. 720 ILCS 570/304 (West
1994).
The hearing officer found the Department sustained its
burden of proving by clear and convincing evidence that plaintiff
wrote prescriptions in a nontherapeutic manner in reckless
disregard for Barnes' well-being. The Director adopted the
hearing officer's finding and sanctioned plaintiff in a manner
authorized by the Medical Practice Act.
Upon plaintiff's action for administrative review, the
burden shifted to plaintiff to show that the Director's decision
was against the manifest weight of the evidence. Abrahamson v.
Illinois Department of Professional Regulation, 153 Ill. 2d 76,
88, 606 N.E.2d 1111, 1117 (1992). A decision is contrary to the
manifest weight of the evidence only where the opposite
conclusion is clearly evident. Abrahamson, 153 Ill. 2d at 88,
606 N.E.2d at 1117. The Abrahamson court stated, "[t]he mere
fact that an opposite conclusion is reasonable or that the
reviewing court might have ruled differently will not justify
reversal of the administrative findings. *** If the record
contains evidence to support the agency's decision, it should be
affirmed." Abrahamson, 153 Ill. 2d at 88, 606 N.E.2d at 1117.
Plaintiff falls far short of this standard.
The record in this case contains ample evidence to support
the Director's decision that plaintiff recklessly prescribed
controlled substances for nontherapeutic purposes without regard
for the safety of his patient and in violation of the Medical
Practice Act and the Controlled Substances Act. Every witness
who testified, including plaintiff and his own expert, provided
such evidence. Plaintiff admitted that he issued these
prescriptions. He allowed Barnes to receive narcotic pain
killers, tranquilizers, and sedatives in sufficient quantity and
with sufficient regularity that Barnes was almost never without
these drugs for a period of six years. Plaintiff issued these
prescriptions, most with at least one authorized refill, despite
his admitted knowledge that Barnes was using the drugs too
quickly.
Each of the other witnesses who testified provided further
support for the Director's decision. Earnest Barnes stated that
he called plaintiff and asked him to stop prescribing drugs to
his wife because she was addicted to them. Nonetheless,
plaintiff continued issuing the prescriptions. About six months
later, plaintiff took an overdose of these drugs and spent four
or five days recovering at St. Francis Hospital. Even after the
overdose, plaintiff continued prescribing the same drugs.
According to Dr. Czarnecki, plaintiff's treatment of Barnes
failed to conform to accepted medical standards. The drugs he
prescribed are highly addictive and intended only for short-term
use. Also, narcotic analgesics should only be used in
combination with tranquilizers in the exercise of extreme
caution. Dr. Czarnecki testified that, under the circumstances,
it should have been clear to plaintiff that Barnes was developing
a dependency on these drugs and using them for nontherapeutic
purposes.
Even plaintiff's own expert witness provided some testimony
that supports the Director's decision. Dr. Singleton admitted
that circumstances such as those may indicate the patient is
developing an addiction.
The standard of review controls this case. The Department
of Professional Regulation, its Medical Disciplinary Board, and
its Director must be allowed to handle their own disciplinary
matters in any manner authorized by law, and this court should
not interfere with those decisions unless they are contrary to
the manifest weight of the evidence. Plaintiff can hardly point
to any evidence in his favor, much less show that the opposite
conclusion is "clearly evident." See Abrahamson, 153 Ill. 2d at
88, 606 N.E.2d at 1117.
For the foregoing reasons, the decision of the circuit court
of Cook County to affirm the Director's decision is affirmed.
Affirmed.
O'BRIEN, J., concurs.
CAMPBELL, P.J., dissents.
PRESIDING JUSTICE CAMPBELL, dissenting:
I respectfully dissent. This court must decide whether the findings and
decision of the Department are against the manifest weight of the evidence.
Abrahamson v. Illinois Dept. of Professional Regulation, 153 Ill. 2d 76, 88,
606 N.E.2d 1111, 1117 (1992). This function is comparable to deciding as a
matter at law whether there is competent evidence to support the judgment of a
lower court. Fenyes v. State Emp. Retirement System, 17 Ill. 2d 106, 111-12,
160 N.E.2d 810, 813 (1959). Administrative decisions must also be supported
by substantial evidence. Carver v. Bond/Fayette/Effingham Regional Bd. of
School Trustees, 146 Ill. 2d 347, 363, 586 N.E.2d 1273, 1280 (1992); Ballin
Drugs, Inc. v. Illinois Dept. of Registration and Education, 166 Ill. App. 3d
520, 526, 519 N.E.2d 1151, 1156 (1988).
Dr. Caldwell was charged generally with negligence and gross negligence
and specifically with prescribing controlled substances or narcotics for other
than medically accepted therapeutic purposes with the intent of maintaining a
person's physical or psychological addiction or dependence. The Department's
decision is largely based on Dr. Czarnecki's testimony, which Dr. Caldwell
argues was legally insufficient to support the Department's action in this
case. The majority opinion ignores Dr. Caldwell's argument, but the argument
merits consideration.
In an ordinary civil malpractice case, the plaintiff must show that the
expert is a licensed member of the school of medicine about which he or she
proposes to testify. Gill v. Foster, 157 Ill. 2d 304, 316-17, 626 N.E.2d 190,
196 (1993). The plaintiff need not show that the expert also specializes in
the same area of medicine as the defendant doctor. Gill, 157 Ill. 2d at 316,
626 N.E.2d at 196. However, where a defendant doctor's criminal conviction
rests on a finding that he has violated professional standards, the defendant
has the right to be judged by the standards specific to his or her area of
practice. People v. Albano, 216 Ill. App. 3d 247, 264-65, 576 N.E.2d 998,
1009 (1991).
This case is neither a civil malpractice case nor a criminal prosecu-
tion. The question of the standard for competency of medical expert testimony
before the Department is a question of first impression.
In an ordinary civil case, where the decision merely determines which
party must bear an economic loss, there are no sound reasons for favoring one
party over another, and the party with the burden of persuasion must prove his
or her case by a preponderance of the evidence. Bazydlo v. Volant, 164 Ill. 2d 207, 212-13, 647 N.E.2d 273, 276 (1995). In some contexts, however,
constitutional or policy considerations require the higher standard of proof
by clear and convincing evidence. Volant, 164 Ill. 2d at 213, 647 N.E.2d at
276.
The burden of proof in this type of case is that of clear and convincing
evidence. This high standard of proof is justified by constitutional con-
cerns. The right to pursue a profession is a property and liberty interest
protected by the Federal and Illinois constitutions. Collura v. Board of
Police Com'rs of Village of Itasca, 113 Ill. 2d 361, 369, 498 N.E.2d 1148,
1151 (1986); see also Smith v. Department of Registration & Education, 412 Ill. 332, 340-41, 106 N.E.2d 722, 726 (1952). Indeed, the right to pursue a
career in medicine is one of the "fundamental rights of citizenship." Smith,
412 Ill. at 341, 106 N.E.2d at 726. Thus, in Albano, where the doctor's
liberty interest was at stake, the standard for competent testimony was also
heightened.
In this case, the record shows that Dr. Caldwell is a general practi-
tioner. General practice is a recognized specialty. Albano, 216 Ill. App. 3d
at 264, 576 N.E.2d at 1008. The record shows that Dr. Czarnecki's specialties
are cardiology and internal medicine. Given the fundamental right at stake, I
conclude that Dr. Caldwell must be judged by the standards applicable to a
general practitioner, not to a cardiologist or internist. Thus, Dr. Czar-
necki's testimony cannot sustain the Department's decision in this case.
Moreover, even if the standard for competent expert testimony was not
heightened, it is undisputed that Dr. Czarnecki's testimony was not based on
an examination of Christine Barnes or a complete medical history, but on
insurance claim forms, prescriptions and "some" progress notes. Dr. Czarnecki
admitted that not every diagnosis is put on the insurance claim forms and that
there is no standard way of writing progress notes. An expert interpretation
of incomplete medical records adds little to the trier of fact's understanding
of the facts or issues. See Holston v. Sisters of the Third Order of St.
Francis, 165 Ill. 2d 150, 170-71, 650 N.E.2d 985, 995 (1995). Indeed, the
Department cross-examined Dr. Singleton to show the same flaws that affect Dr.
Czarnecki's testimony. Such evidence cannot be characterized as substantial.
In addition, an expert's opinion is only as valid as the bases and
reasons for the opinion. Gyllin v. College Craft Enterprises, Ltd., 260 Ill.
App. 3d 707, 715, 633 N.E.2d 111, 118 (1994). In this case, Dr. Czarnecki
testified that he "never said anything about individual prescriptions," but
was looking at the "totality" of the situation, which he testified was a 10
year period. Dr. Caldwell was not charged regarding a 10 year period.
The decision is also based on the finding that "Christine Barnes was a
narcotic dependent person." The Department could not have rationally decided
that Dr. Caldwell intended to maintain Christine's addiction or dependence
without such a finding. Moreover, the finding underpins the decision that Dr.
Caldwell was issuing prescriptions for non-therapeutic purposes.
The majority opinion states that:
"Dr. Czarnecki testified that under the circumstances,
it should have been clear to plaintiff that Barnes was
developing a dependency on these drugs and using them
for non-therapeutic purposes."
Even assuming arguendo that such testimony was competent, it should be noted
that the Department makes no such representation in its brief. A review of
the record indicates that Dr. Czarnecki's testimony contains no such state-
ment.
Earnest Barnes testified that he told Dr. Caldwell that Christine was
addicted. Earnest Barnes is a lay witness. When lay opinions are permitted,
there must be a proper foundation establishing the witness's personal knowl-
edge of facts that form the basis of his opinion. Hopkinson v. Chicago
Transit Authority, 211 Ill. App. 3d 825, 846, 570 N.E.2d 716, 730 (1991).
The record on appeal does not disclose a basis for the lay opinion.
Earnest Barnes testified that Christine occasionally appeared "tanked" on her
medication, and that he took her to the hospital due to an overdose. However,
there is no evidence in this record linking these episodes of abuse to an
addiction or dependency. The majority opinion also faults Dr. Caldwell for
continuing the prescriptions after the overdose, but cites no evidence that
Dr. Caldwell was informed of the episode.
In sum, the evidence in this case was neither competent nor substantial
on points crucial to the Department's decision. Although the Department may
have a legally sufficient case against Dr. Caldwell, it failed to present one.
Accordingly, I would reverse the decision of the circuit court.
August 25, 1997
No. 1-95-3599
EARL N. CALDWELL, ) Appeal from the
) Circuit Court
Plaintiff-Appellant, ) of Cook County.
)
v. )
)
THE DEPARTMENT OF PROFESSIONAL )
REGULATION, NIKKI M. ZOLLAR, )
Director, and THE MEDICAL ) Honorable
DISCIPLINARY BOARD OF THE ) MARGARET McBRIDE,
DEPARTMENT OF PROFESSIONAL ) Judge Presiding.
REGULATION, )
)
Defendants-Appellees. )
JUSTICE BUCKLEY delivered the opinion of the court:
Plaintiff, Dr. Earl N. Caldwell, brought an action in the
circuit court of Cook County against the Illinois Department of
Professional Regulation (the Department), the Department's
director, Nikki M. Zollar (the Director), and the Department's
Medical Disciplinary Board. Plaintiff's complaint sought
administrative review of the Director's decisions to place
plaintiff's medical license on probation for five years, to
revoke plaintiff's controlled substances license, and to fine
plaintiff $20,000. The circuit court affirmed the Director's
decision, and plaintiff appealed. The sole issue raised on
appeal is whether the circuit court erred in finding that the
Director's decision was not contrary to the manifest weight of
the evidence.
On October 18, 1990, the Department filed a 20-count
complaint against plaintiff. Counts I through XVI alleged that
plaintiff overcharged for medical services and charged for
services that were unnecessary or not provided. The hearing
officer resolved these counts in favor of plaintiff, and they are
not relevant to the instant appeal.
Counts XVII through XX alleged that, between 1984 and 1990,
plaintiff prescribed controlled substances to a patient,
Christine Barnes, for nontherapeutic purposes in violation of the
Illinois Medical Practice Act (Ill. Rev. Stat. 1985, ch. 111,
par. 4433), the Illinois Medical Practice Act of 1987 (225 ILCS
60/22(A) (West 1994)), and the Illinois Controlled Substances Act
(720 ILCS 570/304, 312 (West 1994)). In each of these counts,
the Department sought that plaintiff's medical license be
suspended or revoked or that plaintiff be otherwise disciplined.
At various times between June 10, 1991, and September 26,
1991, a hearing on the complaint was held before the assigned
hearing officer. Plaintiff testified on his own behalf. He
stated that he first treated Barnes in 1984 and continues to
treat her through the time of the hearing. Barnes has suffered
from numerous ailments, including hypertension, arthritis,
obesity, and a herniated disc in her back.
Plaintiff treated Barnes by conducting physical examinations
and prescribing medications. The Department introduced into
evidence copies of at least 74 prescriptions plaintiff issued to
Barnes for various pain killers and tranquilizers. Plaintiff
identified each of these prescriptions, most of which authorized
at least one refill.
The drugs prescribed by plaintiff were Darvocet N-100,
meprobomate, phenobarbital, and Tylenol-4. Darvocet and Tylenol-
4 are analgesics used to relieve mild to moderate pain.
Meprobomate is a tranquilizer that plaintiff testified can be
used as a muscle relaxant. Phenobarbital is a sedative. All of
these drugs are controlled substances and are capable of causing
dependency. The Physician's Desk Reference describes each of
them as having a "high potential for abuse."
In 1988, Barnes began seeking refills too quickly. She
explained to plaintiff that she was depleting her supply more
quickly than the rate prescribed because she was giving some of
the pills to her husband and daughter. Plaintiff instructed
Barnes that if her husband and daughter needed medications, they
would have to be examined. Plaintiff did not change Barnes'
prescriptions after this discussion.
Plaintiff testified that he believes his treatment of
Christine Barnes was consistent with accepted standards of
medical care. Plaintiff never detected any signs that Barnes was
becoming dependent on any of the medications he prescribed.
Dr. Lafayette Singleton testified as an expert witness on
plaintiff's behalf. Dr. Singleton is board certified in
neurology, a field that includes treatment of lower back pain.
Dr. Singleton testified that a proper course of treatment for a
patient such as Christine Barnes would include physical therapy
and prescriptions for analgesics and muscle relaxants. It would
not be improper to prescribe these medications again if the
patient continued to experience pain. Under questioning from the
hearing officer, Dr. Singleton testified that a patient who seeks
numerous prescriptions for Darvocet and Tylenol-4, with refills,
in the space of two months may be displaying signs of addiction.
Earnest Barnes, Christine Barnes' husband, testified that he
never consulted plaintiff as a physician. He also stated that in
November 1989 he contacted plaintiff, complaining that his wife
was addicted to pain pills. He asked plaintiff to help her stop
taking the pills, but the prescriptions continued. On April 12,
1990, Mr. Barnes found his wife on the bathroom floor unable to
stand because she had taken too many pills. He called the
paramedics, who took Christine to St. Francis Hospital. She
remained there for four or five days. After her release from the
hospital, Christine continued to see plaintiff, and plaintiff
continued to prescribe the same drugs for her. Christine was
still seeing plaintiff at the time of the hearing. Mr. Barnes
testified that he never took any of his wife's pain pills.
Dr. Laszlo Koos testified that he was on duty at St. Francis
Hospital when Barnes was admitted on April 12, 1990. Dr. Koos
ordered tests, which indicated that Barnes had suffered a drug
overdose from ingesting a combination of phenobarbital,
meprobamate, and Darvocet.
Finally, Dr. Stephen Czarnecki testified as an expert
witness for the Department. Dr. Czarnecki is board certified in
both cardiology and internal medicine. Prior to testifying, he
reviewed insurance claim forms submitted by plaintiff for the
treatment of Christine Barnes, the prescriptions plaintiff issued
to Barnes, and some of plaintiff's progress notes concerning
Barnes.
Dr. Czarnecki testified that in his opinion, the
prescriptions did not conform to accepted medical standards. He
stated that the prescriptions were excessive in quantity, and
many of them were inappropriate for Barnes' ailments.
Specifically, Dr. Czarnecki testified that, all of the drugs
prescribed by plaintiff are intended to be for short-term use. A
treating physician should use these drugs to alleviate the
patient's pain while other treatments are used to address the
cause of the pain. Dr. Czarnecki further testified that
simultaneous prescriptions for Darvocet and Tylenol-4 is "sort of
gilding the lily." Moreover, these medications should be used
very cautiously when taken with phenobarbital or meprobamate.
Dr. Czarnecki concluded that, in his opinion, the continued
prescriptions of Darvocet, Tylenol-4, meprobamate, and
phenobarbital served no therapeutic purpose. Also, attempts to
refill such prescriptions too soon indicate that the patient may
be developing an addiction to the medication, which should cause
the patient's doctor to stop issuing the prescriptions.
On November 27, 1991, the hearing officer released his
report and recommendation. The factual findings in the report
show that Barnes received prescriptions from plaintiff for
Darvocet N-100, meprobamate, phenobarbital, and Tylenol-4 on 122
occasions between February 1986 and September 1990. The report
stated that Barnes was a narcotic-dependent person and that
plaintiff continued to prescribe controlled substances when he
knew or should have know of her dependency. The hearing officer
found that the prescriptions were issued in a nontherapeutic
manner with recklessness and disregard for the patient's well-
being. He further specifically found that all of the witnesses
who testified during the hearing, except plaintiff, were
credible. Plaintiff's testimony was deemed not credible.
The hearing officer found that the Department had proved
counts XVII through XX by clear and convincing evidence. As a
result, he recommended that plaintiff's medical license be placed
on probation for five years, that his controlled substances
license be revoked, and that plaintiff be fined $20,000. Both
the Medical Disciplinary Board and the Director adopted the
hearing officer's findings of fact and conclusions of law. On
May 13, 1992, the Director issued a decision imposing the
sanctions recommended by the hearing officer.
On June 16, 1992, plaintiff filed an action for
administrative review. On May 31, 1995, the circuit court
affirmed the Director's decision. Plaintiff filed a motion for
reconsideration that the circuit court denied on September 15,
1995. Plaintiff filed a late notice of appeal, which this court
allowed on November 8, 1995.
The prescriptions at issue in this case were written between
1984 and 1990. The Illinois Medical Practice Act was amended in
1987, and, therefore, plaintiff was charged under the Act as it
existed both before and after the amendment. Nonetheless, the
relevant provisions are substantively the same. The 1987 statute
provides:
"The Department may revoke, suspend, place on
probationary status, or take any other disciplinary
action as the Department may deem proper with regard
to the license or visiting professor permit of any
person issued under this Act to practice medicine,
*** upon any of the following grounds:
* * *
4. Gross negligence in practice under this
Act;
* * *
17. Prescribing, selling, administering,
distributing, giving or selfadministering any drug
classified as a controlled substance (designated
product) or narcotic for other than medically
accepted therapeutic purposes." 225 ILCS 60/22(A)
(4),(17) (West 1992),
see also Ill. Rev. Stat. 1985, ch. 111, par. 4433 (4)(17)
(containing substantively same provisions before 1987 amendment).
Likewise, the Illinois Controlled Substances Act provides that
the Department may revoke or suspend a physician's controlled
substances license for similar conduct. 720 ILCS 570/304 (West
1994).
The hearing officer found the Department sustained its
burden of proving by clear and convincing evidence that plaintiff
wrote prescriptions in a nontherapeutic manner in reckless
disregard for Barnes' well-being. The Director adopted the
hearing officer's finding and sanctioned plaintiff in a manner
authorized by the Medical Practice Act.
Upon plaintiff's action for administrative review, the
burden shifted to plaintiff to show that the Director's decision
was against the manifest weight of the evidence. Abrahamson v.
Illinois Department of Professional Regulation, 153 Ill. 2d 76,
88, 606 N.E.2d 1111, 1117 (1992). A decision is contrary to the
manifest weight of the evidence only where the opposite
conclusion is clearly evident. Abrahamson, 153 Ill. 2d at 88,
606 N.E.2d at 1117. The Abrahamson court stated, "[t]he mere
fact that an opposite conclusion is reasonable or that the
reviewing court might have ruled differently will not justify
reversal of the administrative findings. *** If the record
contains evidence to support the agency's decision, it should be
affirmed." Abrahamson, 153 Ill. 2d at 88, 606 N.E.2d at 1117.
Plaintiff falls far short of this standard.
The record in this case contains ample evidence to support
the Director's decision that plaintiff recklessly prescribed
controlled substances for nontherapeutic purposes without regard
for the safety of his patient and in violation of the Medical
Practice Act and the Controlled Substances Act. Every witness
who testified, including plaintiff and his own expert, provided
such evidence. Plaintiff admitted that he issued these
prescriptions. He allowed Barnes to receive narcotic pain
killers, tranquilizers, and sedatives in sufficient quantity and
with sufficient regularity that Barnes was almost never without
these drugs for a period of six years. Plaintiff issued these
prescriptions, most with at least one authorized refill, despite
his admitted knowledge that Barnes was using the drugs too
quickly.
Each of the other witnesses who testified provided further
support for the Director's decision. Earnest Barnes stated that
he called plaintiff and asked him to stop prescribing drugs to
his wife because she was addicted to them. Nonetheless,
plaintiff continued issuing the prescriptions. About six months
later, plaintiff took an overdose of these drugs and spent four
or five days recovering at St. Francis Hospital. Even after the
overdose, plaintiff continued prescribing the same drugs.
According to Dr. Czarnecki, plaintiff's treatment of Barnes
failed to conform to accepted medical standards. The drugs he
prescribed are highly addictive and intended only for short-term
use. Also, narcotic analgesics should only be used in
combination with tranquilizers in the exercise of extreme
caution. Dr. Czarnecki testified that, under the circumstances,
it should have been clear to plaintiff that Barnes was developing
a dependency on these drugs and using them for nontherapeutic
purposes.
Even plaintiff's own expert witness provided some testimony
that supports the Director's decision. Dr. Singleton admitted
that circumstances such as those may indicate the patient is
developing an addiction.
The standard of review controls this case. The Department
of Professional Regulation, its Medical Disciplinary Board, and
its Director must be allowed to handle their own disciplinary
matters in any manner authorized by law, and this court should
not interfere with those decisions unless they are contrary to
the manifest weight of the evidence. Plaintiff can hardly point
to any evidence in his favor, much less show that the opposite
conclusion is "clearly evident." See Abrahamson, 153 Ill. 2d at
88, 606 N.E.2d at 1117.
For the foregoing reasons, the decision of the circuit court
of Cook County to affirm the Director's decision is affirmed.
Affirmed.
O'BRIEN, J., concurs.
CAMPBELL, P.J., dissents.
PRESIDING JUSTICE CAMPBELL, dissenting:
I respectfully dissent. This court must decide whether the findings and
decision of the Department are against the manifest weight of the evidence.
Abrahamson v. Illinois Dept. of Professional Regulation, 153 Ill. 2d 76, 88,
606 N.E.2d 1111, 1117 (1992). This function is comparable to deciding as a
matter at law whether there is competent evidence to support the judgment of a
lower court. Fenyes v. State Emp. Retirement System, 17 Ill. 2d 106, 111-12,
160 N.E.2d 810, 813 (1959). Administrative decisions must also be supported
by substantial evidence. Carver v. Bond/Fayette/Effingham Regional Bd. of
School Trustees, 146 Ill. 2d 347, 363, 586 N.E.2d 1273, 1280 (1992); Ballin
Drugs, Inc. v. Illinois Dept. of Registration and Education, 166 Ill. App. 3d
520, 526, 519 N.E.2d 1151, 1156 (1988).
Dr. Caldwell was charged generally with negligence and gross negligence
and specifically with prescribing controlled substances or narcotics for other
than medically accepted therapeutic purposes with the intent of maintaining a
person's physical or psychological addiction or dependence. The Department's
decision is largely based on Dr. Czarnecki's testimony, which Dr. Caldwell
argues was legally insufficient to support the Department's action in this
case. The majority opinion ignores Dr. Caldwell's argument, but the argument
merits consideration.
In an ordinary civil malpractice case, the plaintiff must show that the
expert is a licensed member of the school of medicine about which he or she
proposes to testify. Gill v. Foster, 157 Ill. 2d 304, 316-17, 626 N.E.2d 190,
196 (1993). The plaintiff need not show that the expert also specializes in
the same area of medicine as the defendant doctor. Gill, 157 Ill. 2d at 316,
626 N.E.2d at 196. However, where a defendant doctor's criminal conviction
rests on a finding that he has violated professional standards, the defendant
has the right to be judged by the standards specific to his or her area of
practice. People v. Albano, 216 Ill. App. 3d 247, 264-65, 576 N.E.2d 998,
1009 (1991).
This case is neither a civil malpractice case nor a criminal prosecu-
tion. The question of the standard for competency of medical expert testimony
before the Department is a question of first impression.
In an ordinary civil case, where the decision merely determines which
party must bear an economic loss, there are no sound reasons for favoring one
party over another, and the party with the burden of persuasion must prove his
or her case by a preponderance of the evidence. Bazydlo v. Volant, 164 Ill. 2d 207, 212-13, 647 N.E.2d 273, 276 (1995). In some contexts, however,
constitutional or policy considerations require the higher standard of proof
by clear and convincing evidence. Volant, 164 Ill. 2d at 213, 647 N.E.2d at
276.
The burden of proof in this type of case is that of clear and convincing
evidence. This high standard of proof is justified by constitutional con-
cerns. The right to pursue a profession is a property and liberty interest
protected by the Federal and Illinois constitutions. Collura v. Board of
Police Com'rs of Village of Itasca, 113 Ill. 2d 361, 369, 498 N.E.2d 1148,
1151 (1986); see also Smith v. Department of Registration & Education, 412 Ill. 332, 340-41, 106 N.E.2d 722, 726 (1952). Indeed, the right to pursue a
career in medicine is one of the "fundamental rights of citizenship." Smith,
412 Ill. at 341, 106 N.E.2d at 726. Thus, in Albano, where the doctor's
liberty interest was at stake, the standard for competent testimony was also
heightened.
In this case, the record shows that Dr. Caldwell is a general practi-
tioner. General practice is a recognized specialty. Albano, 216 Ill. App. 3d
at 264, 576 N.E.2d at 1008. The record shows that Dr. Czarnecki's specialties
are cardiology and internal medicine. Given the fundamental right at stake, I
conclude that Dr. Caldwell must be judged by the standards applicable to a
general practitioner, not to a cardiologist or internist. Thus, Dr. Czar-
necki's testimony cannot sustain the Department's decision in this case.
Moreover, even if the standard for competent expert testimony was not
heightened, it is undisputed that Dr. Czarnecki's testimony was not based on
an examination of Christine Barnes or a complete medical history, but on
insurance claim forms, prescriptions and "some" progress notes. Dr. Czarnecki
admitted that not every diagnosis is put on the insurance claim forms and that
there is no standard way of writing progress notes. An expert interpretation
of incomplete medical records adds little to the trier of fact's understanding
of the facts or issues. See Holston v. Sisters of the Third Order of St.
Francis, 165 Ill. 2d 150, 170-71, 650 N.E.2d 985, 995 (1995). Indeed, the
Department cross-examined Dr. Singleton to show the same flaws that affect Dr.
Czarnecki's testimony. Such evidence cannot be characterized as substantial.
In addition, an expert's opinion is only as valid as the bases and
reasons for the opinion. Gyllin v. College Craft Enterprises, Ltd., 260 Ill.
App. 3d 707, 715, 633 N.E.2d 111, 118 (1994). In this case, Dr. Czarnecki
testified that he "never said anything about individual prescriptions," but
was looking at the "totality" of the situation, which he testified was a 10
year period. Dr. Caldwell was not charged regarding a 10 year period.
The decision is also based on the finding that "Christine Barnes was a
narcotic dependent person." The Department could not have rationally decided
that Dr. Caldwell intended to maintain Christine's addiction or dependence
without such a finding. Moreover, the finding underpins the decision that Dr.
Caldwell was issuing prescriptions for non-therapeutic purposes.
The majority opinion states that:
"Dr. Czarnecki testified that under the circumstances,
it should have been clear to plaintiff that Barnes was
developing a dependency on these drugs and using them
for non-therapeutic purposes."
Even assuming arguendo that such testimony was competent, it should be noted
that the Department makes no such representation in its brief. A review of
the record indicates that Dr. Czarnecki's testimony contains no such state-
ment.
Earnest Barnes testified that he told Dr. Caldwell that Christine was
addicted. Earnest Barnes is a lay witness. When lay opinions are permitted,
there must be a proper foundation establishing the witness's personal knowl-
edge of facts that form the basis of his opinion. Hopkinson v. Chicago
Transit Authority, 211 Ill. App. 3d 825, 846, 570 N.E.2d 716, 730 (1991).
The record on appeal does not disclose a basis for the lay opinion.
Earnest Barnes testified that Christine occasionally appeared "tanked" on her
medication, and that he took her to the hospital due to an overdose. However,
there is no evidence in this record linking these episodes of abuse to an
addiction or dependency. The majority opinion also faults Dr. Caldwell for
continuing the prescriptions after the overdose, but cites no evidence that
Dr. Caldwell was informed of the episode.
In sum, the evidence in this case was neither competent nor substantial
on points crucial to the Department's decision. Although the Department may
have a legally sufficient case against Dr. Caldwell, it failed to present one.
Accordingly, I would reverse the decision of the circuit court.
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