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FOURTH DIVISION
MAY 13, 2004

1-03-1573

JUSTICE HARTMAN delivered the opinion of the court:

This administrative review action was brought by plaintiff,Kenneth Anderson, M.D., against defendants, the Illinois Departmentof Professional Regulation (the Department) and its Director, tocontest the Director's decision that Dr. Anderson's acts "and/or"omissions constituted gross negligence and dishonorable, unethical,or unprofessional conduct in violation of the Medical Practice Actof 1987 (the Act) (225 ILCS 60/1 et seq. (West 2000)). The circuitcourt reversed the Director's decision and the Department appealed.

The Department filed a two count complaint against Dr.Anderson alleging that he had committed gross negligence andunethical or unprofessional conduct by performing hernia surgery onthe wrong side of a four year old patient. Specifically, thecomplaint alleged that Dr. Anderson had (1) failed to examine C.S.prior to starting surgery on April 13, 1998; (2) performedunnecessary surgery on the incorrect side of C.S.'s body; and (3)subjected C.S. to unnecessary surgery which could not resolve hismedical condition.⁽¹⁾

The following testimony was adduced at an evidentiary hearingbefore an administrative law judge (ALJ):

Dr. Anderson testified that he is a board certified generalsurgeon. He had been chairman of the surgery department at St.Francis Hospital since July 1, 1997. On March 10, 1998, C.S. cameto Dr. Anderson's office for an examination and evaluation of aninguinal hernia, upon referral by Dr. Robert Jordan. The referralauthorization form from Dr. Jordan stated inguinal hernia, but didnot indicate which side. On March 10, 1998, a history and physicalform was filled out by a nurse after interviewing the patient andhis mother. The history and physical form, which was completedprior to Dr. Anderson entering the examining room, stated leftinguinal hernia. Dr. Anderson scanned this form from top to bottombefore examining C.S.

Dr. Anderson examined C.S. on March 10, 1998, diagnosed aright inguinal hernia, and recommended surgery. The office chartincluded a progress note dictated and signed by Dr. Andersonindicating his diagnosis of right inguinal hernia. Dr. Andersonwrote a note to Dr. Jordan on March 10, 1998, stating that he hadseen C.S. for a right inguinal hernia and would schedule surgery torepair the condition. The office chart also contained a consent tosurgery form, however, prepared by Dr. Anderson's nurse and signedby C.S.'s mother which authorized repair of a left inguinal hernia.

On March 12, 1998, Dr. Anderson's office sent a referralrequest form to the managed care network requesting authorizationto perform surgery to repair a right inguinal hernia. The referralform received on April 10, 1998, from the managed care network authorized repair of a right inguinal hernia. Upon receipt of theauthorization, Yolanda, a nurse in Dr. Anderson's office, scheduledsurgery for a left inguinal hernia. Dr. Anderson never saw thereferral form received from the managed care network. Neither thereferral form, nor Dr. Anderson's office notes were included in thehospital chart.

Dr. Anderson testified that he did not bring his office notesto the hospital on the day of the surgery; nor did he review thosenotes at any time prior to performing the surgery. He admittedthat if he had, he would not have performed the surgery on C.S.'sleft side. Dr. Anderson did not examine C.S. on the day ofsurgery. The reason was that he thought it impractical to do so inthe surgical holding area due to the lack of privacy. Further, alldocuments in the hospital chart indicated a left inguinal hernia: (1) the consent to surgical procedure form filled out by a nurse atthe office and signed by C.S.'s mother indicated a left inguinalhernia; (2) the admission assessment listed C.S.'s chief complaintas left inguinal hernia; (3) the pre-anesthesia evaluation formnoted a pre-operative diagnosis of left inguinal hernia; (4) thesurgical procedure permit filled out on the day of the surgery andsigned by C.S.'s mother indicated left inguinal hernia; and (5) thesame day surgery/short stay form signed by Dr. Anderson indicatedhe had performed a physical examination of the patient and statedthat there was a left inguinal hernia. Dr. Anderson testified thathe relied upon the documents in the hospital chart and his memoryin preparing the same day surgery/short stay form.

On April 13, 1998, Dr. Anderson attempted to perform aherniorrhaphy on C.S.'s left side. The post-operative reportindicated that no hernia was found on the left side. Two hoursafter surgery, Dr. Anderson explained to C.S.'s parents that he didnot find a hernia and believed there had been a misdiagnosis. WhenC.S.'s mother saw the dressing on the surgical site she informedDr. Anderson that the hernia was on the right side.

Dr. Andrew Gorchynsky, chief medical coordinator for theDepartment, testified as an expert for the Department. Heexplained that "laterality" refers to a medical situation involvinga particular side or area. According to Dr. Gorchynsky, it isimperative to identify the anatomic location in any type of surgeryinvolving laterality. The surgeon must be 100 per cent certainthat he is operating on the proper side or area. Dr. Gorchynskystated that a surgeon should rely on his own examination and hisown records because the surgeon ultimately is responsible for thecare of the patient. Prior to performing surgery Dr. Gorchynskyreviews his own notes from the original and any subsequentconsultations with the patient and speaks with the patient on theday of the surgery. He usually reviews his notes the day beforethe surgery and generally brings his records to the hospital; butnot always. He relies on his own personal records if laterality isinvolved in the surgery.

In Dr. Gorchynsky's opinion, Dr. Anderson engaged inunprofessional and unethical conduct based on a breach ofresponsibility to his patient by operating on the wrong side. Dr.Anderson also caused actual harm to a member of the public. Dr.Gorchynsky believed that by performing surgery on the wrong side,Dr. Anderson committed an act or omission that constitutedrecklessness or carelessness causing injury to C.S. According toDr. Gorchynsky, Dr. Anderson could have avoided the situation byreferring to his original progress note, re-examining C.S. on theday of the surgery, or speaking to C.S.'s parents to confirm thesurgical site.

Dr. Gorchynsky observed that all of the hospital recordsavailable to Dr. Anderson on April 13, 1998, indicated that C.S.required surgery for a left inguinal hernia, except for onedocument which did not indicate a side. A surgeon has the duty tooperate on the correct side of a patient and it is careless andreckless to operate on the wrong side. Dr. Anderson was recklessand careless in not checking his own personal records prior toconducting the surgery, whether or not he brought them to thehospital. Further, he was reckless and careless when he completedthe same day/short stay record in which he indicated that C.S. hada left inguinal hernia which was inconsistent with his initialdiagnosis as reflected in his dictated progress note and his letterto Dr. Jordan. On cross-examination, Dr. Gorchynsky stated that aphysician might rely on his memory even if the surgery were over amonth after his physical examination of the patient and that therewas no standard as to how much a physician can rely upon his ownmemory as opposed to reviewing the medical records.

Dr. Barry Rosen testified as an expert witness for Dr.Anderson. He reviewed C.S.'s hospital records and Dr. Anderson'soffice records. Dr. Rosen stated that it was within the standardof care not to examine C.S. in the surgical holding area prior tosurgery since all the documents in the hospital chart indicatedC.S. suffered from a left inguinal hernia. He also noted thatthere was too little privacy in the surgical holding area to allowfor an examination. According to Dr. Rosen, Dr. Anderson didnothing with regard to his treatment of C.S. that was reckless,careless or in breach of his duty of care. Dr. Anderson's actionswere within the standard of care for surgery. There were nodiscrepancies in the hospital record to alert Dr. Anderson to asurgical site problem.

Dr. Eloy Moscoso, a former chairman of the medicaldisciplinary board, testified as an expert witness for Dr.Anderson. He reviewed the hospital records, Dr. Anderson's officerecords, and discussed the case with Dr. Anderson. He noted thateverything in the hospital records indicated that C.S. had a leftinguinal hernia. In his opinion, the care Dr. Anderson gave C.S.was not gross negligence or unethical or unprofessional conduct. This case involved mistakes, but not of a nature as to rise to thelevel of culpability under the Act. According to Dr. Moscoso,where all the documents in the hospital record indicated a leftinguinal hernia, the standard of care did not require Dr. Andersonto perform an examination of C.S. in the pre-operation holdingarea.

Janet Jansky, a nurse employed by Dr. Anderson, testified thatshe filled out the office health history form for C.S. on March 10,1998, that indicated the reason for the visit was a left inguinalhernia. When she asked C.S.'s mother why he was seeing the doctor,she stated it was for a left inguinal hernia. The form wascompleted before Dr. Anderson came into the examining room. Janskyalso filled out and signed a surgical consent form on March 10,1998, that indicated C.S. was to undergo a left inguinalherniorrhaphy. She completed the form based on the information shehad obtained from C.S.'s mother.

The ALJ found that the Department did not prove by clear andconvincing evidence that Dr. Anderson's conduct was grossnegligence or unprofessional. She recommended that Dr. Anderson'smedical license remain in good standing and that a letter ofconcern be issued.

The Medical Disciplinary Board (the Board), finding Dr.Gorchynsky to be more qualified and giving his testimony moreweight, disagreed with the ALJ. The Board found that the followingacts or omissions by Dr. Anderson constituted carelessness "and/or"recklessness toward or a disregard for the safety and well-being ofC.S. and resulted in injury to C.S. and also constituted a breachof Dr. Anderson's responsibility to C.S.: (1) failed to examineC.S. prior to commencing surgery on April 13, 1998; (2) performedunnecessary surgery on the incorrect side of C.S.'s body; (3)subjected C.S. to unnecessary surgery that could not resolve hismedical condition; and (4) failed to review his office chart forC.S. prior to surgery. The Board concluded that the Department hadproven by clear and convincing evidence that Dr. Anderson's acts"and/or" omissions constituted gross negligence and dishonorable,unethical or unprofessional conduct in violation of the Act. TheBoard recommended that Dr. Anderson's medical license bereprimanded. In July 2002, the Director adopted the decision ofthe Board and reprimanded Dr. Anderson's license.⁽²⁾

Dr. Anderson sought administrative review of the Department'sdecision. In reversing the decision of the Department, the circuitcourt found that there was no evidence to support the Director'sconclusion that Dr. Anderson's actions constituted gross negligenceor unprofessional conduct. The court also found that theDepartment had failed to present proof as to the standard of careand whether Dr. Anderson deviated from it in a manner that wouldconstitute gross negligence.

The Act provides for review of all final administrativedecisions of the Department under the Administrative Review Law(ARL) (735 ILCS 5/3-101 et seq. (West 2000)). 225 ILCS 60/41 (West2000). In a case arising under the ARL, it is the administrativeagency's decision that is reviewed, not the circuit court'sdetermination. Wilson v. Illinois Department of ProfessionalRegulation, 317 Ill. App. 3d 57, 739 N.E.2d 57 (2000); Gounaris v.City of Chicago, 321 Ill. App. 3d 487, 747 N.E.2d 1025 (2001). Anadministrative agency's factual findings are deemed to be primafacie true and correct and may be set aside only if they areagainst the manifest weight of the evidence. 735 ILCS 5/3-110(West 2000); City of Belvidere v. Illinois State Labor RelationsBoard, 181 Ill. 2d 191, 692 N.E.2d 295 (1998) (Belvidere). A denovo standard of review is applied to findings on questions of law. Belvidere, 181 Ill. 2d at 205. Where, as in the case sub judice,the case involves an examination of the legal effect of a given setof facts, it involves a mixed question of law and fact, and theadministrative agency's decision will be affirmed unless clearlyerroneous. Belvidere, 181 Ill. 2d at 205. A decision will bedeemed clearly erroneous only where the reviewing court, on theentire record, is "'left with the definite and firm conviction thata mistake had been committed.'" AFM Messenger Service, Inc. v.Department of Employment Security, 198 Ill. 2d 380, 763 N.E.2d 272(2001), quoting United States v. United States Gypsum Co., 333 U.S.364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542 (1948).

At issue is whether the Director's determination that Dr.Anderson's acts "and/or" omissions constituted gross negligence anddishonorable, unethical or unprofessional conduct in violation ofthe Act was clearly erroneous.

Section 22(A) of the Act (225 ILCS 60/22(A) (West 2000)),provides that the Department may revoke, suspend, place onprobationary status or take any other disciplinary action regardinga medical license that the Department deems proper based uponseveral grounds. Section 22(A)(4) authorizes such discipline basedon "[g]ross negligence in practice under this Act." 225 ILCS60/22(A)(4) (West 2000). Section 22(A)(5) allows such disciplinewhere the physician engaged in "dishonorable, unethical orunprofessional conduct of a character likely to deceive, defraud orharm the public." 225 ILCS 60/22(A)(5) (West 2000). TheDepartment is required to establish a violation of the Act by clearand convincing evidence. 68 Ill. Adm. Code