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People ex rel Sherman v. Cryns

February 21, 2003


The opinion of the court was delivered by: Chief Justice McMORROW

At issue in this case is the narrow question of whether plaintiff, the People of the State of Illinois ex rel. Leonard Sherman, Director of the Illinois Department of Professional Regulation (Department), established a prima facie case that defendant, Yvonne Cryns, a lay midwife, violated provisions of the Nursing and Advanced Practice Nursing Act (Act) (225 ILCS 65/20-75(a) (West 2000)) when she participated in the August 19, 2000, birth of Spencer Verzi. Plaintiff filed a petition for a preliminary injunction against defendant, pursuant to section 20-75(a) of the Act (225 ILCS 65/20-75(a) (West 2000)), arguing that injunctive relief was warranted because defendant's actions during the Verzi birth constituted the practice of professional nursing and advanced practice nursing without a license. During a hearing on plaintiff's petition, the circuit court of McHenry County granted defendant's motion for directed finding at the close of plaintiff's case in chief. The circuit court found that plaintiff had presented no evidence showing that any acts engaged in by defendant at the Verzi home constituted acts of nursing or advanced practice nursing. The appellate court reversed, holding that plaintiff had presented prima facie evidence that during the birth of Spencer Verzi, defendant had practiced professional nursing and advanced practice nursing without a license in violation of the Act. The appellate court accordingly remanded this cause to the circuit court for further proceedings. 327 Ill. App. 3d 753. For the reasons that follow, we affirm the judgment of the appellate court.


On January 18, 2000, Leonard Sherman, the Director of Professional Regulation (Director), issued a rule to show cause against defendant, who is a lay midwife. The rule to show cause alleged that, in practicing midwifery, defendant engaged in conduct that constituted the practice of professional nursing and advanced practice nursing, as defined within sections 5-10(l) and 15-5 of the Act (225 ILCS 65/5-10(l), 15-5 (West 2000)). The rule to show cause provided defendant with seven days in which to show why an order to cease and desist the unlicenced practice of nursing and midwifery should not be entered against her. Defendant responded by filing a special and limited appearance objecting to the Department's jurisdiction over her as a nonnurse midwife. Defendant also filed an affidavit in which she averred that she was not licensed as a nurse or engaged in a licensed profession.

On April 7, 2000, the Director issued a cease and desist order against defendant, commanding her to immediately cease and desist from engaging in conduct constituting the practice of nursing and midwifery, until she complied with the licensing requirements for a professional nurse and an advanced practice nurse contained within the Act. Specifically, the cease and desist order stated that defendant was not registered as a professional nurse pursuant to section 10-5 of the Act (225 ILCS 65/10-5(a), (b), (c) (West 2000)); that defendant did not hold a current, national certificate as a nurse midwife from the appropriate national certifying body (225 ILCS 65/15-10(a)(3) (West 2000)); that defendant had not complied with a post-basic advanced formal education program in the area of midwifery (225 ILCS 65/15-10(a)(5) (West 2000)); that defendant does not have a collaborative agreement with a physician as required of a certified nurse midwife under the Act (225 ILCS 65/15-15 (West 2000)); and that defendant has been practicing midwifery without the appropriate license and certificate. *fn1

On October 3, 2000, plaintiff filed a verified complaint for injunctive relief against defendant. Pursuant to section 20-75(a) of the Act (225 ILCS 65/20-75(a) (West 2000)), the Director may, in the name of the People of the State of Illinois and through the Attorney General of Illinois, petition the circuit court for an order enjoining any violation of the Act or for an order enforcing compliance with the Act. The verified complaint alleged that the Department is statutorily authorized to enforce minimum standards of professional education and licensure for the practice of nursing and advanced practice nursing. According to the complaint, defendant, as a midwife, is improperly engaged in rendering prenatal, childbirth and postpartum care without a nursing license. The complaint further alleged that defendant violated provisions of the Act when she assisted with the birth of Spencer Verzi, at the Verzi home on August 19, 2000. According to the complaint, "[w]hile defendant was physically assisting with the delivery, the Verzi baby was born in a breech position. Defendant waited approximately more than 15 minutes before calling paramedics. Defendant made efforts to resuscitate the Verzi baby which were unsuccessful." The complaint further alleged that "[v]ideotape shot at the scene shows the entire incident and shows defendant physically assisting in the birth of baby Verzi, which amounted to the continued practice of nursing or Midwifery" without the requisite license. The complaint concluded by asserting that "[d]efendant's actions of continuing to practice nursing and Midwifery without the proper qualifications, licensing and supervision is creating an imminent danger of harm to the public."

On October 5, 2000, the circuit court entered a temporary restraining order against defendant's practice of nursing and midwifery, pending a hearing on plaintiff's complaint for preliminary injunction. The circuit court conducted a hearing on the preliminary injunction complaint on October 13, 2000. Plaintiff called Louis Verzi, the father of Spencer Verzi, to testify with respect to Spencer's birth. Verzi stated that he and his wife, Heather, hold "alternative ideas on health that are not shared with most doctors in hospitals." Accordingly, the Verzis decided that it was best that they have their child at home without the presence of a doctor or nurse. The Verzis desired to take a natural approach to childbirth and decided on a "water birth," wherein the mother gives birth while being partially submerged in a birthing pool. Verzi stated that the water-birth option was not available at any nearby hospitals, and that he and his wife hired defendant to work with them to accomplish a home water birth. According to Verzi, defendant never claimed to be a nurse, and he and his wife did not view defendant as a nurse. Rather, Verzi testified, the purpose of defendant being in their home during Spencer's birth was "to give us advice and to help us through the birth of our child, to help us in things that we didn't know." According to Verzi, defendant discussed with him and his wife the fact that if complications were to arise during the birth, medical assistance would not be immediately available.

According to Verzi, defendant had Heather fill out a "client form," in which Heather indicated that the Verzis believed in "natural health" and did not believe in prescriptions or over-the-counter medications. The responses on this form also indicated that the Verzis viewed Heather's mother as their "doctor," meaning that they relied on her for advice with respect to their health. According to Verzi, Heather had several prenatal visits with defendant, during which defendant monitored the baby's heartbeat using both a specially designed stethoscope known as a "fetoscope," and also a device known as a "Doppler," in which reflected sound waves are used to estimate the speed and direction of blood flow. Verzi stated that a few months before Spencer's birth, defendant had disclosed that a cease and desist order was issued against her by the Department. This information, however, did not deter the Verzis from continuing their relationship with defendant, as defendant was someone that they "had come to trust" and they "felt strongly" that defendant was the person to deliver their child.

Verzi testified that at mid-morning on August 19, 2000, his wife's water broke, and that defendant arrived at their home between 1 and 1:30 p.m. Several family members and friends had gathered at the Verzi house to witness the birth. At approximately 3:45 p.m., Heather began to deliver the baby when his left foot emerged from the birth canal. According to Verzi, during the delivery defendant used the fetoscope "four or five times" to listen to the baby's heartbeat, and also used the Doppler device. Verzi recalled that at one point during the birthing process, Heather asked defendant to physically pull the baby out, and that defendant refused Heather's request. Verzi stated that defendant instead told Heather to push the baby out, and that Heather's body would know the right thing to do. However, Verzi testified that Heather continued to have difficulty in delivering the baby and that "when matters became urgent" defendant did attempt to physically extract the baby. By 4:30 p.m., the baby was born. However, upon his birth Spencer was not breathing. Verzi stated that although defendant administered CPR to Spencer for approximately 10 minutes using an "Ambu bag," which is a device used to push air into a baby's lungs after birth, the baby was not responsive. Verzi testified that at that point defendant requested that 911 be called. According to Verzi, defendant was still at their home, attempting to resuscitate Spencer, when the ambulance and paramedics arrived.

Verzi further testified that the delivery of Spencer was videotaped by two cameras which were present in the room: one video camera was mounted on a tripod and was stationary, while the other video camera was hand-held and operated by a friend of the family. Verzi stated that, during the evening prior to his testimony, a police officer delivered a videotape to his home. Upon viewing the videotape, Verzi realized that the one tape contained the video recordings from both cameras present during the birth. He also testified that the tape ran for approximately 1 hour, 20 minutes. Verzi testified that although he did not know who combined the two videotapes together, the videotape he viewed on the evening prior to his testimony truly and accurately reflected the events which transpired at his home on August 19, 2000. The videotape was not played in court.

Plaintiff thereafter moved to enter the videotape into evidence. Defendant objected to the admission of the videotape on the ground that plaintiff had failed to lay a proper foundation for the tape recording. Defendant argued that plaintiff was required to call the individuals who made the video recordings to testify. The circuit court, over defendant's objection, held that Verzi's testimony that the videotape truly and accurately reflected the events of Spencer's birth provided a sufficient foundation for the admission of the videotape. The court then admitted the tape into evidence. However, the circuit court judge did not view the videotape at any time during the proceedings.

Plaintiff next called defendant to testify. Defendant invoked her fifth amendment (U.S. Const., amend. V) privilege against self-incrimination because of criminal charges pending against her as a result of Spencer Verzi's death, and refused to answer any questions.

At this juncture, plaintiff rested its case.

After plaintiff rested its case, defendant moved for a directed finding, arguing that plaintiff had presented no evidence showing that any acts performed by defendant during the birth of Spencer Verzi constituted acts of nursing or of advanced practice nursing. The circuit court agreed, and granted defendant's motion. The circuit court stated that plaintiff produced no evidence that what occurred during the Verzi birth violated any provisions of the Act. The circuit court also dissolved the temporary restraining order previously entered against defendant. However, the circuit court stayed its order subject to an interlocutory appeal of its ruling.

The appellate court vacated the circuit court's order denying plaintiff's motion for preliminary injunction and remanded the cause to the circuit court. People ex rel. Sherman v. Cryns, 321 Ill. App. 3d 990 (2001) (Cryns I). The appellate court determined that the circuit court abused its discretion in ruling on plaintiff's request for a preliminary injunction without viewing the videotape that it had admitted into evidence.

On August 7, 2001, the circuit court entered an order reaffirming its decision to grant a directed finding in favor of defendant. The circuit court held that after viewing the videotape and reviewing the transcript of the hearing, it remained convinced that "there is no evidence in the record *** from which this court could conclude that the activities of [defendant] constituted the practice of nursing or Midwifery."

The appellate court reversed. 327 Ill. App. 3d 753 (Cryns II). The appellate court first rejected defendant's contention that the circuit court abused its discretion by admitting into evidence the videotape recording of the events that transpired at the Verzi home on August 19, 2000. The appellate court held that a videotape is properly admitted if it is identified as an accurate and complete portrayal of certain facts relevant to a particular issue and is verified by a witness with personal knowledge who attests that it is a correct representation of these facts. In the matter at bar, the appellate court determined that Verzi was a competent witness who had personal knowledge to identify the videotape as being a correct representation of the birth of his child. The appellate court also rejected defendant's contention that although Verzi testified that the videotape he viewed the night before the hearing accurately depicted the events portrayed in the tape, there was no verification at the hearing that the videotape admitted into evidence was the same one that Verzi had viewed. The appellate court observed that defendant failed to cite to any authority that a videotape must be viewed at trial in order to establish a foundation for its admission into evidence. In addition, the appellate court held that defendant's suggestion that the videotape entered into evidence might not have been the same as that viewed by Verzi the night before was completely unsubstantiated.

The appellate court then turned to the question of whether the circuit court erred in granting defendant's motion for a directed finding at the conclusion of plaintiff's case in chief. The appellate court determined that in the matter at bar plaintiff, through the testimony of Louis Verzi and the events depicted in the videotape, established a prima facie case that during Spencer's birth defendant was practicing nursing or midwifery without a license.

The appellate court observed that under section 5-10(l) of the Act, "[r]egistered professional nursing practice" includes "the assessment of healthcare needs, nursing diagnosis, planning, implementation, and nursing evaluation," the "promotion, maintenance, and restoration of health," and "counseling, patient education, health education, and patient advocacy." 225 ILCS 65/5-10(l) (West 2000). The appellate court noted that Verzi had testified that he and his wife, Heather, had hired and paid defendant to advise and assist them in the delivery of their baby. In addition, the court observed that prior to Spencer's birth, defendant used various medical instruments to listen to his heartbeat and ascertain his health status. Further, defendant actively assisted in delivering the baby and in resuscitation efforts. In light of these facts, the appellate court concluded that defendant was practicing nursing or midwifery, as she was assessing the healthcare needs of the mother and baby, making nursing evaluations, attempting to promote, maintain and restore the baby's health, and attempting corrective measures to improve the baby's health status. The appellate court also concluded that the Act provides adequate notice of what ...

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