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08/25/97 EARL N. CALDWELL v. DEPARTMENT

August 25, 1997

EARL N. CALDWELL, PLAINTIFF-APPELLANT,
v.
THE DEPARTMENT OF PROFESSIONAL REGULATION, NIKKI M. ZOLLAR, DIRECTOR, AND THE MEDICAL DISCIPLINARY BOARD OF THE DEPARTMENT OF PROFESSIONAL REGULATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable MARGARET McBRIDE, Judge Presiding.

Released for Publication October 9, 1997. Rehearing Denied October 30, 1997. Released for Publication November 10, 1997.

The Honorable Justice Buckley delivered the opinion of the court. O'brien, J., concurs. Campbell, P.j., dissents.

The opinion of the court was delivered by: Buckley

The Honorable 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 ...


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