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Wegmann v. Dept. of Registration & Educ.

OPINION FILED JUNE 23, 1978.

JAMES WEGMANN, PLAINTIFF-APPELLANT,

v.

THE DEPARTMENT OF REGISTRATION AND EDUCATION, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. RICHARD L. CURRY, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

In an action brought under the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 264 et seq.), the trial court affirmed a decision of the Department of Registration and Education (Department) suspending plaintiff's license to practice dentistry for six months. The Department's decision to sanction plaintiff was based on a finding of the Dental Examining Committee (Committee). This Committee, composed of seven practicing dentists, hears disciplinary actions brought against dentists and submits its findings of fact and conclusions of law to the Department.

On appeal, plaintiff contends that (1) he did not receive a fair and impartial hearing in that the Committee refused his requests for discovery and for a continuance, and because his closing statement was limited to five minutes; and (2) the finding of the Committee is against the manifest weight of the evidence.

Plaintiff was charged by the Department with violating section 7(9) and (11) of the Illinois Dental Practice Act. (Ill. Rev. Stat. 1975, ch. 91, par. 62(9) and (11).) The Committee found the evidence did not establish a violation of section 7(9) — "obtaining * * * money * * * [through] false or fraudulent representations" — by submitting bills to an insurance company for services not rendered, but found plaintiff violated section 7(11) — "improper, unprofessional or dishonorable conduct" — by intentionally rendering himself insensible in whole or in part during office hours by inhaling nitrous oxide gas.

It appears that in February 1975, James Jennings, who had been a patient of plaintiff for three years, arrived at plaintiff's office for his 9 a.m. dental appointment. He entered the unlocked outer office door, walked into an empty reception room and took a seat. Although he did not see the plaintiff, he overheard plaintiff arguing with someone in the treating room, which was located a short distance from where he was seated. Jennings stated that plaintiff's voice did not sound normal — being slow and slurred. Having waited past his 9 a.m. appointment, Jennings left the office and went back home. Later that morning, he called plaintiff to inquire about the disturbance and to make another appointment. Plaintiff told him he had been inhaling nitrous oxide gas that morning and, when Jennings asked him what that was, he told him "laughing gas." At the end of the conversation, plaintiff told Jennings to return the following Thursday.

When Jennings arrived that day, plaintiff immediately called him into the treating room. There he saw plaintiff dressed in his dental smock sitting in the dental chair holding to his mouth a small hose which was attached to several gas tanks. Plaintiff then removed the hose from his mouth and greeted him in a slurred voice. Thereupon, Jennings left the office and reported plaintiff's behavior to the Illinois State Dental Society.

In response to Jennings's complaint, Julius Ulaneck, program director for the State Dental Society, and Henry Carr, an investigator for the Department, made an unannounced visit to plaintiff's office at 9 a.m. on March 4. The investigators found plaintiff alone in his office and, after identifying themselves, told him that they had received a complaint from a patient about his use of the anesthetic gas in his office. Plaintiff invited them back into the treating room and, while answering their preliminary questions, removed several gas tanks from a cabinet, adjusted the gauges, and then sat in his dental chair with his legs hanging over one of the armrests. When not speaking, plaintiff would bring the hose up to his mouth and inhale what he said was nitrous oxide. At no time did he tell them that he was inhaling the gas to demonstrate either his procedures in setting up the apparatus or the effects of the gas. However, during the conversation he did tell them that he was having personal problems and that he used the gas because it made him "feel happy"; but, knowing that it was wrong, he was doing his best to kick the habit. He also stated that the use of nitrous oxide to get "high" by dentists in that part of the city was a common occurrence.

The investigators further testified that plaintiff had inhaled the gas during the entire half hour conversation, at the end of which they noticed a change in both his voice and demeanor. Mr. Ulaneck testified that plaintiff's voice became high-pitched and that his demeanor became jovial. Mr. Carr, who had met the plaintiff on a prior occasion regarding a different matter, testified that plaintiff's voice became slurred and that he acted as if he were under the influence of the gas.

On June 6, the Department filed a complaint charging plaintiff with violations of section 7(9) and (11) of the Dental Practice Act, and the Committee scheduled the hearing for July 9. On June 26, plaintiff wrote to the Committee requesting additional time in order to retain counsel, and the hearing was rescheduled for September 17 with the Committee chairman informing plaintiff that no additional continuances would be granted. Three weeks before the September 17 hearing, plaintiff retained two attorneys with whom he had discussed the Department's complaint prior to the original July 9 hearing.

On September 16, the day before the scheduled hearing, plaintiff's attorneys filed their appearances, a discovery motion, and a motion for continuance. On the day of the hearing, these attorneys presented the motions to the Committee and informed it that they were not prepared to proceed, stating that they had only been retained three weeks before the hearing. The Committee, after a meeting in executive session, denied plaintiff's motions stating that plaintiff had sufficient time (three months) to retain counsel, request discovery, and to prepare a defense, and had been informed after receiving his first continuance that no additional requests would be granted. However, prior to the commencement of the hearing, the Committee allowed time for plaintiff and the Department to confer about the case.

At the hearing, plaintiff testified that he had been practicing dentistry for three years; that nitrous oxide gas is an analgesia used to deaden or reduce facial pain during dental surgery; that when Jennings arrived for his original dental appointment he must have overheard an argument defendant was having with his wife and, if his voice sounded different, it was because he had a cold; and that he did not tell Jennings during their telephone conversation later that he had been inhaling nitrous oxide gas. Plaintiff, however, admitted that he was inhaling nitrous oxide when Jennings came to his office later that week. He testified, however, that he was testing the mixture of the gas because he had just purchased a new tank of nitrogen and that it was his practice to test in that manner before he used gas from a new tank on a patient. When the investigators came to his office, he set up the apparatus and inhaled the gas to demonstrate how the apparatus worked and to show them that the gas would not render him insensible. Although he admitted using the gas occasionally to relieve a pain in his knee, he denied ever using the gas to get "high."

The Committee found plaintiff had violated section 7(11) by acting in an improper, unprofessional, and dishonorable way by intentionally incapacitating himself during office hours through the inhalation of nitrous oxide gas. The Department adopted the Committee's finding and suspended plaintiff's license to practice dentistry for six months. On administrative review, the trial court held that the finding of the Department was not against the manifest weight of the evidence.

OPINION

Plaintiff first contends that he was denied due process by the action of the Committee in that his requests for discovery and a continuance were refused and ...


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