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Wilson v. Department of Professional Regulation

November 18, 2003

ROBERT LANCE WILSON, PLAINTIFF-APPELLEE,
v.
THE DEPARTMENT OF PROFESSIONAL REGULATION; NIKKI M. ZOLLAR, FORMER DIRECTOR OF THE DEPARTMENT OF PROFESSIONAL REGULATION; AND LEONARD SHERMAN, FORMER DIRECTOR OF THE DEPARTMENT OF PROFESSIONAL REGULATION, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County, Chancery Division. No. 00 CH 1057 The Honorable Bernetta D. Bush, Judge Presiding.

The opinion of the court was delivered by: Justice Garcia

UNPUBLISHED

In October 1998, the defendant, the Illinois Department of Professional Regulation (Department), filed an administrative complaint against the plaintiff, Robert Wilson, O.D., alleging (1) gross negligence (225 ILCS 60/22(A)(4) (West 1996)) (count I), and (2) dishonorable, unethical, and unprofessional conduct (225 ILCS 60/22(A)(5) (West 1996)) (count II). In November 1999, an administrative hearing was conducted. In March 2000, the administrative law judge (ALJ) recommended to the Department that Dr. Wilson's medical license be revoked for a period of five years. The Department implemented the ALJ's recommendation. In July 2000, Dr. Wilson filed his complaint for administrative review in the circuit court. In April 2002, the circuit court reversed and vacated the license revocation. We affirm in part, reverse in part the circuit court's rulings and remand to the Department for further proceedings.

BACKGROUND *fn1

In mid-September 1998, Dr. Wilson, a licensed doctor of osteopathy specializing in cardiology, acted as a consultant in the treatment of Henry Taylor. Taylor was suffering from superior vena cava syndrome, a blockage of the main chamber of the heart, due to end-stage renal disease.

In late September 1998, Dr. Wilson was summoned to Taylor's bedside as Taylor began to suffocate due to a pulmonary compression on his trachea, a complication of superior vena cava syndrome. Previously, Taylor had signed do-not-resuscitate and do-not-intubate orders. In an attempt to relieve Taylor's pain, Dr. Wilson injected Taylor with at least 10 milligrams of morphine through an intravenous (IV) line into Taylor's femoral artery (near the groin). Taylor continued experiencing pain. Dr. Wilson then injected 40 milliequivalent of undiluted potassium chloride through the IV; Taylor died within one minute.

Later that day, Dr. Wilson reported his use of potassium chloride to Dr. Michael Settecase, the medical director of Olympia Field's Osteopathic Hospital (Hospital). Drs. Wilson and Settecase reported Taylor's death to the Cook County medical examiner's office (Medical Examiner). The Medical Examiner conducted Taylor's autopsy, which revealed the cause of death to be potassium chloride intoxication; the manner of death was ruled a homicide. The Olympia Field's police department initiated a criminal investigation into Taylor's death; however, the Cook County State's Attorney decided not to criminally prosecute Dr. Wilson.

In early October 1998, the director of the Department, Nikki Zollar (Department Director), temporarily suspended Dr. Wilson's medical and controlled substance licenses. The Department then filed an administrative complaint against Dr. Wilson seeking to have his license suspended or revoked because of his use of potassium chloride. The Department's complaint charged Dr. Wilson with gross negligence and dishonorable, unethical, and unprofessional misconduct. See 225 ILCS 60/22(A)(4), (A)(5) (West 1996). In mid-November 1999, the Department conducted a disciplinary hearing before ALJ Phillip Howe and several panel members.

License Suspension Hearing, Day One

On the first day of the hearing, one of Dr. Wilson's attorneys, Mr. Zimmerman, made the following preliminary motions: (1) to dismiss the Department's proceedings, claiming they violated Dr. Wilson's due process rights; (2) to bar any mention of Taylor's autopsy report since Dr. Wilson had no opportunity to conduct an independent autopsy on Taylor's body; and (3) to have Dr. Wilson's expert testify out of order because of a scheduling conflict involving the expert. The ALJ denied Mr. Zimmerman's first two motions but granted the third.

Dr. Wilson's expert, Dr. Bruce Waller, a cardiologist and professor of cardiology, testified that the superior vena cava is the main chamber of the heart through which blood that has circulated throughout the body flows before being sent to the lungs to be oxygenated. After examining Taylor's premortem and post-mortem X rays, Dr. Waller concluded Taylor's superior vena cava syndrome was the result of a blood clot totally obstructing the superior vena cava. The clot forced blood attempting to return to the heart to flow into adjacent blood vessels and soft tissue. The transposed blood caused edema (swelling), and as a result, Taylor's upper extremities (neck, arms, face, and eyes) became swollen. In Taylor's case, the accumulation of displaced fluid intensified the swelling in his neck, causing his trachea to compress, thus preventing air from entering his lungs, and as a consequence, Taylor began to suffocate.

Dr. Waller testified that notes in the physician's file made it clear that although Taylor had signed a do-not-resuscitate order, his treating physician asked if he wanted to be intubated. Taylor declined and Dr. Wilson was called. Dr. Waller testified that as Taylor's breathing became distressed, he was given 2 milligrams of morphine by the resident physician, 10 milligrams of morphine by Dr. Wilson, and possibly another 10 milligrams of morphine by Dr. Wilson. Dr. Waller testified that according to the file, the dopamine drip, which helps elevate blood pressure, was turned off, and as a result, Taylor's eyes rolled back into his head and his respiratory rate diminished. Dr. Wilson then administered undiluted potassium chloride.

Dr. Waller opined that the undiluted potassium chloride could not have reached Taylor's heart before it stopped due to the arterial blockage and respiratory distress Taylor was experiencing. Dr. Waller based his conclusion on a Norwegian study in which 30 milliequivalent of diluted potassium chloride, gradually infused into the aortas of patients undergoing open-heart surgery, did not cause the patients' hearts to stop. On cross-examination, Dr. Waller admitted there was no blockage in the inferior vena cava, the path from the femoral artery (where the undiluted potassium chloride was introduced by Dr. Wilson) to the heart. However, Dr. Waller maintained Taylor died because of his underlying medical condition, and not because undiluted potassium chloride was administered.

Dr. Waller conceded potassium chloride is a dangerous and even lethal drug; however, he maintained that 40 milliequivalent was a reasonable amount to administer under the circumstances. On cross-examination Dr. Waller acknowledged he had never personally been present in a hospital setting where 40 milliequivalent of undiluted potassium chloride was administered to a patient. Dr. Waller testified that generally, potassium chloride is diluted before being administered. Dr. Waller also testified that the American Medical Association's (AMA) ethical rules permit the use of potassium chloride for palliative care. *fn2

At this point, the Department was unable to finish its cross-examination because of Dr. Waller's scheduling conflict. The following dialogue ensued with the participants agreeing to recall Dr. Waller at a later date.

"MR. ZIMMERMAN: Your Honor, the witness needs to catch a plane, and as a matter of scheduling, I don't know how you want to handle that.
MR. GOLDBERG: Your Honor, may I suggest that the witness needs to get another plane. We need to finish our cross- examination if this witness's testimony is allowed to stand.
THE WITNESS: I am on call at five o'clock Indianapolis time.

[THE ALJ]: Folks, there are two possibilities.

MR. ZIMMERMAN: We can recall him.

[THE ALJ]: Folks, there are two possibilities. Either we continue today and recess and the doctor can reschedule whatever he has to do. From his previous statements and [the way] he's looking at me right now, I can tell he's thinking ...

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