Appeal from the Circuit Court of McHenry County. No. 00-CH-511 Honorable Michael J. Sullivan, Judge, Presiding.
The opinion of the court was delivered by: Justice Bowman
In this interlocutory appeal plaintiff, the People of the State of Illinois ex rel. Leonard Sherman, Director of the Illinois Department of Professional Regulation, appeals from the judgment of the circuit court of McHenry County denying its motion for a preliminary injunction against defendant, Yvonne Cryns. Plaintiff had sought to enjoin defendant from practicing nursing or midwifery without a license. On appeal plaintiff contends that the trial court erred (1) in directing a finding for defendant and denying plaintiff's request for preliminary injunction, and (2) in finding that it could not draw any negative inferences from defendant's refusal to testify under the fifth amendment (U.S. Const., amend. V).
Plaintiff filed a complaint for injunctive relief against defendant pursuant to section 20--75(a) of the Nursing and Advanced Practice Nursing Act (Act) (225 ILCS 65/20--75(a) (West 1998)). Section 20--75(a) provided that the Director of the Department of Professional Regulation (Director), in the name of the People of the State of Illinois, through the Attorney General of Illinois, may petition for an order enjoining a violation of the Act or for an order enforcing compliance with the Act. The complaint alleged that defendant violated a cease and desist order issued by the Director on April 7, 2000, ordering her to immediately cease and desist the practice of nursing and midwifery in Illinois until she complied with certain provisions of the Act pertaining to licensing as a nurse or advanced practice nurse. The complaint alleged that the violation occurred when defendant assisted with the birth of a baby, Spencer Verzi, at the Verzi home in Round Lake Beach on April 19, 2000.
Pursuant to plaintiff's complaint, the court entered a temporary restraining order against defendant and ordered a hearing to be held on plaintiff's motion for preliminary injunction. At the subsequent hearing on the motion, Louis Verzi, father of Spencer Verzi, testified regarding the August 19, 2000, birth of his son. Verzi stated that he and his wife, Heather, had hired defendant to advise and assist them in delivering their baby at home. Verzi related that they had elected to have the baby at home as opposed to a hospital because of their alternative ideas regarding health care that were not shared by most doctors. According to Verzi, he and his wife did not believe that childbirth was a medical procedure but rather a natural human process. They did not want a doctor or a nurse to deliver their baby. Verzi stated that Heather's mother was their doctor, i.e., that they relied on her advice regarding health issues.
Verzi stated that defendant understood their views and agreed to assist them in the water birth process that the Verzis chose as the method for giving birth to their child. The procedure involved giving birth while the mother was partially submerged in a birthing pool. Water birth was not available in any nearby hospitals. Verzi said that defendant never told his wife and him that she was present to act as a nurse nor did he believe that that was defendant's role. During Heather's pregnancy, the couple met with defendant so she could "check up" on Heather and make certain her pregnancy was proceeding "okay." Three or four months into the pregnancy defendant used a Doppler, an instrument that monitors the baby's heartbeat. On other visits, at the Verzis' request, defendant used a fetoscope, a stethoscope device used to listen to the baby's heartbeat.
Verzi recalled that, about a couple of months before the birth of his son, defendant informed him that a cease and desist order existed against her. Defendant told the Verzis that the order stated that she was not to assist in the delivery of babies. Verzi understood that this included the practice of midwifery. Verzi said that, regardless of the cease and desist order, he and his wife had come to trust defendant and still wanted her to assist in the delivery of their baby.
Verzi related that at about 10:30 a.m. on August 19, 2000, Heather's water broke. Defendant was called and arrived between 1 and 1:30 p.m. During the time she was at the Verzi home, defendant used the fetoscope four or five times. She also used a Doppler and an Ambu bag, or respiratory bag, after the baby was born. At about 3:45 p.m. Heather began to give birth to Spencer. His left foot emerged first. Verzi recalled that at some point during the birthing process Heather asked defendant to pull out the baby. Defendant replied that she could not do that and instructed Heather to push out the baby because defendant did not know exactly what was right for the baby, but Heather's body would know the correct thing to do. Verzi stated that when matters became urgent, defendant attempted to extract the baby.
When Spencer was born, he had a heartbeat but was not breathing. Defendant used the Ambu bag to administer cardiovascular pulmonary resuscitation (CPR) to Spencer for approximately 10 minutes. When defendant's efforts to resuscitate the baby were unsuccessful, she asked those present to call 911. Defendant continued trying to resuscitate the baby until paramedics arrived. Verzi acknowledged that in electing to have a home birth he and his wife knew that medical assistance was not immediately available if medical complications arose during the birth.
Verzi was asked if he had received a videotape of the events that occurred at his home on August 19, 2000. The videotape had been delivered to the Verzis by a police officer on the night before the instant proceedings and subsequently picked up by the officer after the couple had viewed it. Verzi acknowledged that the videotape truly and accurately portrayed the events that took place and the persons present on that date. Verzi stated that he was not responsible for the videotaping although he may have stopped the camcorder one or two times during the taping. According to Verzi, the camcorder was turned on and off frequently through the tape recording. The videotape was not played in court.
The State moved for the admission of the videotape, and defendant objected based on lack of foundation. The court commented that it believed that the videotape's admissibility depended upon whether someone testified that it was a true and accurate depiction of that which it portrayed. The court then found that the foundation for its admission was sufficient and admitted the videotape over defendant's objection.
The following description of what appears on the videotape is adopted in large part from the State's brief, which, from our review of the videotape, accurately depicts events that occurred during Spencer's birth. The videotape reveals that when Spencer began to be born he was in a breech position, i.e., exiting the birth canal feet first. The baby's left foot exited the birth canal first. The videotape shows that soon after the baby's foot appeared, defendant checked the baby's heartbeat with her fetoscope.
While Heather was laboring with only the baby's foot being born, defendant performed a digital examination on Heather's cervix to check that the cervix had fully dilated and that "there [wasn't] any more cervix in the way." After a few minutes she used her Doppler and fetoscope to again listen to the baby's heartbeat and instructed Heather to change positions to facilitate her examination. Heather labored for almost 20 minutes with only the baby's left foot being born. She complained of pain and asked defendant to help pull the baby out a little. Defendant refused and told Heather, "You know how much you can push the baby out. I don't know how much the baby should come out."
Shortly thereafter, the baby's right foot and bottom were born. With Heather's next push, the scrotum and part of the umbilical cord were visible outside the birth canal. Because it was apparent that the baby was a boy, Louis and Heather stated that the baby would be named Spencer Raymond Verzi.
A couple of minutes passed without any more of the baby being born, and defendant stated that she wanted to check on the health of the baby. Defendant used the Doppler to perform the examination. When she could not get a heartbeat for the baby, she instructed Heather to change positions and again listened with her equipment. Defendant still could not get a steady heartbeat and told Heather to "get the baby out" immediately.
Heather began pushing and defendant grabbed onto the part of the baby outside the birth canal. The water made it difficult to grab onto the baby and therefore defendant ordered Heather to stand up and get out of the birthing pool. Once Heather was on the rug, defendant tried to listen for the baby's heartbeat with the fetoscope but again could not get a steady beat. Defendant told Heather to "get this baby born." In the next series of pushes, the remainder of the baby's body was born except for his head, which remained in the vaginal canal. Defendant ordered Heather to push hard to get the head out. As Heather pushed, defendant inserted her fingers into the vaginal opening and worked to stretch and loosen the opening so that the baby's head could pass through it. Defendant also pulled and twisted the ...