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02/21/89 Moon Lake Convalescent v. Jeremy Margolis

February 21, 1989





535 N.E.2d 956, 180 Ill. App. 3d 245, 129 Ill. Dec. 191 1989.IL.202

Appeal from the Circuit Court of Cook County; the Hon. Joseph Wosik, Judge, presiding.


JUSTICE BUCKLEY delivered the opinion of the court. CAMPBELL and O'CONNOR, JJ., concur.


Following an administrative hearing on violations of the Minimum Standards, Rules and Regulations for the Licensure of Skilled Nursing Facilities and Intermediate Care Facilities (1980) (the Rules), the Director of the Department of Public Health, State of Illinois , affirmed the hearing officer's decision to impose penalties on and revoke the license of Moon Lake Convalescent Center (Moon Lake), a long-term intermediate and skilled nursing-care facility located in Hoffman Estates, Illinois. On administrative review, the circuit court reversed the Director's decision, finding that the hearing officer lacked authority to hear the matter, that IDPH had no jurisdiction to proceed against Moon Lake, that the proceedings to revoke Moon Lake's license were moot, and that the Director's decision was contrary to the manifest weight of the evidence. The court also ordered IDPH to pay costs and attorney fees under section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-611). IDPH appeals from that judgment. For the reasons set forth below, we reverse.

These proceedings arose from an incident which occurred at Moon Lake on November 13, 1983. At approximately 10 a.m. on that morning, Moon Lake's nursing assistant Lionel Deere prepared a tub bath for one of its residents, 73-year-old Benjamin Ovitz. Ovitz, as a result of a stroke, had paralysis of his right side, wore a brace on his right leg, and articulated only by the words "yes" and "no." After checking the water temperature with his hand, Deere bathed Ovitz in the bathtub. Between 1 and 1:30 p.m. later that day, nurse Elizabeth Timm noticed that Ovitz' leg was bleeding and that Ovitz' skin was sloughing off of his leg. Moon Lake then contacted the paramedics.

Members of the responding paramedic team determined that Ovitz had suffered a third degree burn and transported Ovitz to Humana Hospital. From there, Ovitz was transferred to the burn unit at Evanston Hospital. Dr. Charles Drueck III, the surgeon in charge of the burn unit at Evanston Hospital, observed that Ovitz had suffered third degree burns over 40% of his body, primarily on his back, buttocks, both sides, genitals and lower legs. Ovitz' knees were not burned, nor were there splatter burns. The burns were consistent with immersion in a discrete body of water.

During his hospitalization, Ovitz developed pneumonia and died on January 15, 1984. Drueck diagnosed Ovitz' cause of death as complications following his burns.

On March 12, 1984, IDPH issued a notice of complaint findings and determinations, stating that Moon Lake had violated a number of the Rules. Moon Lake, on March 23, 1984, requested a hearing on the violations. Before IDPH issued notices of penalty assessment and license revocation on July 18, 1984, Moon Lake had sold its facility to Midwest Carbridge, Inc., and surrendered its license. Discussions concerning this purchase had initiated in October 1983, and the sale was consummated in May 1984.

Hearings on the violations opened on July 31, 1984. At the first evidentiary session held on October 18, 1984, hearing officer William Stanley White announced that one of IDPH's witnesses, nurse Barbara Whelan, had been the office nurse of his parents for 17 years, working full time until 1979 and occasionally since then. White refused Moon Lake's request to recuse himself because of this relationship. White also denied Moon Lake's motions to dismiss the proceeding on grounds that White was not an "employee" of the Department, that the matter was moot based upon the sale of Moon Lake, and that IDPH had violated its own regulations by failing to provide prompt notice of the violations.

The testimony at the administrative hearing disclosed the following responses and investigations to the November 13 incident. On the day of the incident, Moon Lake supervisor Ada Irene Morris Wiren questioned Deere, who stated that he had given Ovitz a shower. Barbara Suchecki, the person with the highest authority present at the facility on November 14, collected additional information and informed director of nurses Judy Ann Schillace of the incident that afternoon. Schillace already knew that Jean Hefner, the night supervisor on November 13, was informed by Evanston Hospital that it was the medical staff's opinion that Ovitz had suffered an immersion burn. Ovitz' injury was reported to IDPH on November 16, 1983.

Detective Robert Syre from the Hoffman Estates police department investigated the incident. Syre interviewed Ovitz at Evanston Hospital, and Ovitz responded affirmatively when asked if he had received a bath. Drueck also expressed to Syre the opinion that Ovitz was burned in a bath. In an interview with Deere, Deere told Syre that he might have left the shower area for a couple of seconds to fetch a towel and that Ovitz received a shower, although on January 31, 1984, he acknowledged during testimony before a grand jury that he had in fact given Ovitz a bath.

On November 17, 1983, IDPH sent three investigators to Moon Lake to investigate a complaint of abuse and neglect. Deere told the investigators that he had given Ovitz a shower. Farrell did not issue her report regarding her investigation until January 11, 1984. The report noted citations issued to Moon Lake on November 17 for failing to timely report the Ovitz incident and for employing an unlicensed nurse who was unconnected with the November 13 incident.

On November 18, another IDPH inspector visited Moon Lake to examine its plumbing and water systems. He noted the absence of vacuum breakers and backflow preventers in some systems but issued no citations.

On February 1, 1984, registered nurse Barbara Ann Whalen and sanitarian Theodore Zelinski conducted a reinvestigation of the incident. Upon examining its records, they noted that Moon Lake's daily water temperature log for the day of Ovitz' injury showed a temperature of 110 degrees Fahrenheit. The log indicated that during November 1983, the average water temperature exceeded 110 degrees on the 5th, 7th and 22nd of the month. In January 1984, the temperature measured 130 degrees on January 18.

Upon testing the water temperature on Ovitz' floor, Zelinski and Whelan found that at different times of the day, the temperature of the water in sinks and bathtub exceeded 110 degrees. Zelinski also observed that the in-line thermometer reading of the hot water system in the basement fluctuated between 105 and 120 degrees. Zelinski cited Moon Lake for the temperatures exceeding 110 degrees in violation of the Rules requiring facilities to have protective measures to ensure that water temperatures do not exceed 110 degrees Fahrenheit.

Whalen further examined Moon Lake's "Manual of Policy and Procedure," which contained a bath policy requiring that water temperature range between 95 and 100 degrees. Whalen interpreted this policy to require its staff to use thermometers to measure bath temperatures, but she admitted that no Moon Lake written policy required it to have thermometers at the baths. Whalen also admitted that no State or Federal regulation prescribed temperatures between 95 degrees and 100 degrees and that no law, policy or regulation of the State of Illinois required the use of thermometers to measure bath temperatures. Schillace informed Whalen that the bath thermometers had all been broken since September or October 1983 and that she submitted a purchasing request for new thermometers in January 1984 but the thermometers had not yet been purchased. Moon Lake's witnesses testified that Moon Lake had never regarded the 95- to 100-degree temperature range to be absolute or as requiring thermometers to ensure that water temperature range.

After subpoenaing documents from Evanston Hospital and from the coroner's office, Whalen completed her report on the reinvestigation on February 28, 1984. Whalen and Zelinski submitted a combined statement of deficiencies, citing Moon Lake and its staff for five violations of the Rules.

At the Conclusion of the hearing on February 13, 1985, White affirmed the revocation of Moon Lake's license and the monetary penalties imposed upon Moon Lake. His ...

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