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SECOND DIVISION
NOVEMBER 18, 2003

No. 1-02-1342

In October 1998, the defendant, the Illinois Department ofProfessional Regulation (Department), filed an administrativecomplaint against the plaintiff, Robert Wilson, O.D., alleging(1) gross negligence (225 ILCS 60/22(A)(4) (West 1996)) (countI), 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, theadministrative law judge (ALJ) recommended to the Department thatDr. Wilson's medical license be revoked for a period of fiveyears. The Department implemented the ALJ's recommendation. InJuly 2000, Dr. Wilson filed his complaint for administrativereview in the circuit court. In April 2002, the circuit courtreversed and vacated the license revocation. We affirm in part,reverse in part the circuit court's rulings and remand to theDepartment for further proceedings.

BACKGROUND⁽¹⁾

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

In late September 1998, Dr. Wilson was summoned to Taylor'sbedside as Taylor began to suffocate due to a pulmonarycompression on his trachea, a complication of superior vena cavasyndrome. 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 ofmorphine through an intravenous (IV) line into Taylor's femoralartery (near the groin). Taylor continued experiencing pain. Dr. Wilson then injected 40 milliequivalent of undilutedpotassium chloride through the IV; Taylor died within one minute.

Later that day, Dr. Wilson reported his use of potassiumchloride to Dr. Michael Settecase, the medical director ofOlympia Field's Osteopathic Hospital (Hospital). Drs. Wilson andSettecase reported Taylor's death to the Cook County medicalexaminer's office (Medical Examiner). The Medical Examinerconducted Taylor's autopsy, which revealed the cause of death tobe potassium chloride intoxication; the manner of death was ruleda homicide. The Olympia Field's police department initiated acriminal investigation into Taylor's death; however, the CookCounty State's Attorney decided not to criminally prosecute Dr.Wilson.

In early October 1998, the director of the Department, NikkiZollar (Department Director), temporarily suspended Dr. Wilson'smedical and controlled substance licenses. The Department thenfiled an administrative complaint against Dr. Wilson seeking tohave his license suspended or revoked because of his use ofpotassium chloride. The Department's complaint charged Dr.Wilson with gross negligence and dishonorable, unethical, andunprofessional misconduct. See 225 ILCS 60/22(A)(4), (A)(5)(West 1996). In mid-November 1999, the Department conducted adisciplinary hearing before ALJ Phillip Howe and several panelmembers.

License Suspension Hearing, Day One

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

Dr. Wilson's expert, Dr. Bruce Waller, a cardiologist andprofessor of cardiology, testified that the superior vena cava isthe main chamber of the heart through which blood that hascirculated throughout the body flows before being sent to thelungs to be oxygenated. After examining Taylor's premortem andpostmortem X rays, Dr. Waller concluded Taylor's superior venacava syndrome was the result of a blood clot totally obstructingthe superior vena cava. The clot forced blood attempting toreturn to the heart to flow into adjacent blood vessels and softtissue. The transposed blood caused edema (swelling), and as aresult, Taylor's upper extremities (neck, arms, face, and eyes)became swollen. In Taylor's case, the accumulation of displacedfluid intensified the swelling in his neck, causing his tracheato compress, thus preventing air from entering his lungs, and asa consequence, Taylor began to suffocate.

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

Dr. Waller opined that the undiluted potassium chloridecould not have reached Taylor's heart before it stopped due tothe arterial blockage and respiratory distress Taylor wasexperiencing. Dr. Waller based his conclusion on a Norwegianstudy 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. Oncross-examination, Dr. Waller admitted there was no blockage inthe inferior vena cava, the path from the femoral artery (wherethe undiluted potassium chloride was introduced by Dr. Wilson) tothe heart. However, Dr. Waller maintained Taylor died because ofhis underlying medical condition, and not because undilutedpotassium chloride was administered.

Dr. Waller conceded potassium chloride is a dangerous andeven lethal drug; however, he maintained that 40 milliequivalentwas a reasonable amount to administer under the circumstances. On cross-examination Dr. Waller acknowledged he had neverpersonally been present in a hospital setting where 40milliequivalent of undiluted potassium chloride was administeredto a patient. Dr. Waller testified that generally, potassiumchloride is diluted before being administered. Dr. Waller alsotestified that the American Medical Association's (AMA) ethicalrules permit the use of potassium chloride for palliative care.⁽²⁾

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

"MR. ZIMMERMAN: Your Honor, the witnessneeds to catch a plane, and as a matter ofscheduling, I don't know how you want tohandle that.

MR. GOLDBERG: Your Honor, may I suggestthat the witness needs to get another plane. We need to finish our cross-examination ifthis witness's testimony is allowed to stand.

THE WITNESS: I am on call at fiveo'clock Indianapolis time.

[THE ALJ]: Folks, there are twopossibilities.

MR. ZIMMERMAN: We can recall him.

[THE ALJ]: Folks, there are twopossibilities. Either we continue today andrecess and the doctor can reschedule whateverhe has to do. From his previous statementsand [the way] he's looking at me right now, Ican tell he's thinking that's impossible,that's like moving the world, I can't do it.

The other possibility is that he comesback at another time. And the respondent gottwo hours and 45 minutes worth of time [for]direct exam[ination], and so therefore, theDepartment would get two hours and 45 minutesfor cross-exam[ination]. It's now five aftertwo, and my notes say we started the actualquestioning at 1:23. So if we stop now, we[are] at 2:05, then we'll just have toschedule and have him come back later.

MR. ZIMMERMAN: Thank you, Your Honor.

[THE ALJ]: What says the Department?

MR. LYONS: I think that's a good plan.

* * *

[THE ALJ]: So, we are stopping at 2:11. Thank you, Doctor. We will reschedule you atanother time. Do you have any time that'sconvenient for this month?

THE WITNESS: Yes, I'm sure this month. I just can't do it the next two days.

[THE ALJ]: Fine."

Following the testimony of Dr. Waller, the Department calledDr. Wilson as an adverse witness. Dr. Wilson admitted headministered 10 milligrams of morphine to Taylor and may havealso given Taylor 10 more milligrams of morphine. Dr. Wilsonadministered the morphine through Taylor's femoral artery inorder to quickly circulate it. In explaining his use of thefemoral artery, Dr. Wilson explained, "[Taylor] was clotted upfrom above. That [morphine] would not circulate to the heart. If it can't get to the heart, it's not going to the brain." Dr.Wilson then conceded that morphine was used to relieve pain;however, Dr. Wilson concluded the morphine was not working fastenough to ease Taylor's pain and instructed a nurse to obtainundiluted potassium chloride although (1) he had never personallyused undiluted potassium chloride on a dying patient, and (2) hehad never seen undiluted potassium chloride administered to adying patient. Dr. Wilson believed administering potassiumchloride was proper palliative care because it would render thepatient unconscious and relieve pain.

Dr. Wilson believed Taylor died of asphyxiation because atthe time he was administering the potassium chloride, Taylor'strachea collapsed and he was not getting enough oxygen. Dr.Wilson based his assertion that Taylor died of asphyxiation onhis observations that (1) Taylor's airway had collapsed and hewas at the point of dying when the potassium chloride wasadministered, and (2) Taylor was dead within one minute of thepotassium chloride being administered.

License Suspension Hearing, Day Two

Dr. Don Hollandsworth, a staff physician at the Hospital andTaylor's treating physician, testified for the Department thatthe use of morphine is ethically appropriate palliative care. Dr. Hollandsworth testified he would not use undiluted potassiumchloride to relieve pain during the dying process.

Next, Dr. Settecase, the medical director of the Hospital,testified for the Department that he had never used undilutedpotassium chloride or seen it used in the manner Dr. Wilson usedit. Later a panel member asked Dr. Settecase the followingquestion, "Doctor, if you know, is potassium chloride the drugthat's used for lethal injection[?]" In response to thequestion, Dr. Settecase testified he believed that potassiumchloride was used by the Illinois Department of Corrections forlethal injections. Dr. Wilson's attorneys objected to this lineof questioning and Dr. Wilson yelled, "I am out of here!" Dr.Wilson's attorneys moved for a mistrial, their motion was denied,and they left the hearing room. The hearing was then recessedfor lunch.

Although neither Dr. Wilson nor his attorneys returned tothe hearing room after lunch, the Department continued to presentevidence. Dr. Mark Siegler, an expert in clinical medicalethics, testified that potassium chloride was an extremelydangerous drug and if given in an undiluted form, could cause theheart to stop. Dr. Siegler testified:

"[T]he idea of potassium being an extremelydangerous drug, extremely dangerous chemical,is well understood; and the fact that nobody,in my experience, has ever injected 40milliequivalent of potassium directly into ahuman being, that I have ever witness[ed] orthat I have ever done, makes me think thatthis is a drug that is understood to have thelikelihood, given quickly enough and [in] ahigh enough dose as 40 milliequivalentinjected as a bolus, to stop the heart."

Dr. Siegler also testified that the Norwegian medical studyrelied on by Dr. Waller is distinguishable from the factssurrounding Taylor's death because (1) the potassium chlorideused in the Norwegian study was diluted, and in this case, Dr.Wilson administered undiluted potassium chloride; and (2) thepotassium chloride used in the Norwegian study was graduallycirculated through the patients' bodies; however, in Taylor'scase, Dr. Wilson administered undiluted potassium chloridethrough an IV directly to the heart by way of the femoral artery. Dr. Siegler speculated the potassium chloride would have reachedTaylor's heart within 30 seconds to one minute after it wasadministered. Dr. Siegler testified his estimation wascorroborated by Dr. Wilson's own testimony regarding hisobservation that Taylor died within one minute of the potassiumchloride being administered.

Dr. Siegler's testimony asserted morphine was effective forpalliative care because it decreased hunger and pain, reducedrespiration, and induced sleep. Dr. Siegler also stated thatsince potassium chloride is more likely than morphine to causeasystolia (heart stoppage) and death, it is not ethicallyacceptable under the AMA ethical rules governing palliative care. Dr. Siegler concluded in his testimony that Dr. Wilson's conductwas reckless, disregarded Taylor's well being, and violated theethical standards of the medical profession.

Emiliana Durante, the nurse attending Taylor, testifiedmorphine was available in the critical care unit where Taylor wastreated. However, potassium chloride was only available in theintensive care unit. Durante retrieved potassium chloride fromthe intensive care unit at Dr. Wilson's request. Further,although Durante had been a nurse since 1977, she had never seenpotassium chloride administered in an undiluted form. With hertestimony, the Department rested its case in chief.

License Suspension Hearing, Day Three

On the third day of the license suspension hearing, Mr.Zimmerman appeared on behalf of Dr. Wilson. Dr. Wilson was notpresent. The ALJ told Mr. Zimmerman that the Department hadrested and invited him to present more of his case. Instead, Mr.Zimmerman requested the Department's proceedings be stayedpending the outcome of Dr. Wilson's motion in the federal courtto enjoin the Department's administrative proceedings. Mr.Zimmerman also informed the ALJ that his client would notparticipate in the administrative proceedings unless the federalcourt abstained from enjoining the hearing. The ALJ denied themotion because (1) numerous continuances had been granted to Dr.Wilson, (2) Dr. Wilson's disruptive conduct led to his voluntaryabsence from the hearing, and (3) procedural mechanisms wereavailable for reopening the case. Mr. Zimmerman then left thehearing room, the Department presented its closing argument, andthe ALJ announced, "we will close the hearing."

The federal court refused to enjoin the administrativeproceedings, and in late December 1999, Mr. Zimmerman sought toreopen proceedings in order to (1) continue Dr. Waller's cross-examination and (2) present redirect testimony of Dr. Wallerbecause Mr. Zimmerman believed the Department had reintroduced acharge that Dr. Wilson engaged in euthanasia. The Departmentargued that only Dr. Waller's cross-examination was cut shortand, thus, only the Department was prejudiced by the unfinishedtestimony. The ALJ agreed with the Department and Dr. Wilson'smotion to reopen the proceedings was denied.

In March 2000, the ALJ issued his findings after consideringthe testimony, medical records, medical studies, and Taylor'sautopsy report. The ALJ concluded that Dr. Wilson committedgross negligence and acted dishonorably and unprofessionally ininjecting Taylor with potassium chloride. The ALJ found Dr.Siegler particularly credible and Dr. Waller unconvincing. Further, the ALJ found Dr. Wilson's testimony self-serving andnot credible. The ALJ recommended Dr. Wilson's professionallicense be revoked for a minimum of five years and reinstatementbe conditioned on (1) a finding of mental fitness and (2)completion of ethical education classes.

In April 2000, the Department's medical disciplinary board(Disciplinary Board) accepted the ALJ's recommendations. In June2000, the Department's Director adopted the Disciplinary Board'sfindings.⁽³⁾

In July 2000, Dr. Wilson filed his complaint foradministrative review in the circuit court, arguing: (1) theDepartment Director's decision was against the manifest weight ofthe evidence; (2) the ALJ had abused its discretion in refusingto reopen the proceedings to continue Dr. Waller's testimony; and(3) the ALJ committed reversible error in not barring Taylor'sautopsy report.

In April 2002, the circuit court stated:

"In reviewing the standard in which I wouldlook at this case, the question is whether Iwould follow the standard of administrativereview which would state that if there isanything in the record to support theagency's decision, I was duty bound to affirmthat decision, or if I would view this as [a]matter for de novo review. Given thenatures, the issues in this case, thequestions of law, whether there was a breachof due process procedures, [this] courtbelieves that the review that it must utilizein this case is the de novo [standard of]review because there are questions of lawthat must be determined, rather than thelesser standard of if there is anything thatmanifests the evidence to support theagency's decision."

In reviewing the Department Director's decision de novo, thecircuit court reversed and vacated the decision to revoke Dr.Wilson's medical license. The circuit court did not find theDepartment Director's revocation of Dr. Wilson's medical licenseagainst the manifest weight of the evidence; instead, the circuitcourt determined (1) the ALJ's denial of Dr. Wilson's request tobar the autopsy report was reversible error, and (2) the ALJ'srefusal to reopen the proceedings and allow Dr. Wilson to recallDr. Waller violated Dr. Wilson's right to due process. Regardingthe autopsy report, the circuit court stated, "[Dr. Wilson] didask that the evidence of the autopsy be barred because [Dr.Wilson] did not have an opportunity to review the body. Ibelieve that was a proper motion, and that motion should havebeen granted. And I believe that, in addition to the denial ofthe expert witness, constituted reversible error."

ANALYSIS

The parties have asked us to decide whether the ALJ abusedhis discretion when he (1) admitted Taylor's autopsy report intoevidence and (2) refused to reopen the administrative hearingproceedings to allow Dr. Waller to be reexamined.

Generally, this court reviews the final decision of anadministrative agency and not the decision of the circuit court. Gounaris v. City of Chicago, 321 Ill. App. 3d 487, 491, 747N.E.2d 1025 (2001), citing Home Interiors & Gifts, Inc. v.Department of Revenue, 318 Ill. App. 3d 205, 209, 741 N.E.2d 998(2000). However, because the circuit court reversed the licenserevocation based on certain legal grounds, we begin our review ofthe Department Director's decision with the basis for the circuitcourt's reversal to determine whether its reversal is founded inlaw. See, generally, Ikpoh v. Zollar, 321 Ill. App. 3d 41, 746N.E.2d 776 (2001) (circuit court upheld in part administrativeagency's decision and remanded for further proceedings; on appealcircuit court order found not final and appealable.) If so, weshould affirm; if not, we may reverse.

I. Taylor's Autopsy Report and Examination of Dr. Waller⁽⁴⁾

Agencies have broad discretion in conducting administrativehearings. Sheehan v. Board of Fire & Police Commissioners, 158Ill. App. 3d 275, 286, 509 N.E.2d 467 (1987). However, "alicense to practice medicine is a 'property right,' within themeaning of the constitutional guarantees of due process of law." Smith v. Department of Registration & Education, 412 Ill. 332,340-41, 106 N.E.2d 722 (1952). Therefore, the basic due processrights of fairness and impartiality must be respected. Abrahamson v. Illinois Department of Professional Regulation, 153Ill. 2d 76, 92-93, 606 N.E.2d 1111 (1992).

The circuit court in this case found "a question of law" inthe issues presented by this case as "whether there was a breachof due process procedures" in the ALJ's denial of Dr. Wilson's(1) motion in limine to exclude the autopsy report and (2) motionto reopen proceedings and recall Dr. Waller. The circuit courtused a de novo standard of review in its analysis of the issues. In the context of appellate review of an administrative agency'sdecision, a de novo standard of review is limited to"interpretation of a statute." Cole v. Department of PublicHealth, 329 Ill. App. 3d 261, 264, 767 N.E.2d 909 (2002). Therefore, the circuit court's use of a de novo standard in thiscase was error. An administrative agency's decision regardingthe conduct of its hearing and the introduction of evidence isproperly governed by an abuse of discretion standard and subjectto reversal only if there is demonstrable prejudice to the party. See Bickham v. Selcke, 216 Ill. App. 3d 453, 459-60, 576 N.E.2d975 (1991).

A. Taylor's Autopsy Report

The Department argues that the circuit court erred infinding reversible error in the ALJ's decision to allow theMedical Examiner's autopsy report into evidence. Dr. Wilsonargues the ALJ did err in admitting the results of Taylor'sautopsy into evidence because Dr. Wilson was not able to conductan autopsy independent of the Medical Examiner. The circuitcourt stated that, "while [Dr. Wilson] didn't subpoena theparties or ask to bring [the parties] in," Dr. Wilson's motion tobar the autopsy evidence was proper and should have been granted. We agree with the Department that the circuit court was incorrectas a matter of law.

Following Taylor's death, the Medical Examiner conducted anautopsy that revealed the cause of death as potassium chlorideintoxication. Taylor's body was then released to his family. Dr. Wilson had no right to conduct an independent autopsy on thebody of Taylor without the explicit permission of Taylor's nextof kin. Rekosh v. Parks, 316 Ill. App. 3d 58, 68, 735 N.E.2d 765(2000) (while there is no property right in a decedent's body,the next of kin have a right to the possession of a decedent'sremains in order to make an appropriate disposition thereof). Therefore, permission to independently autopsy Taylor's body didnot rest with the Medical Examiner or the Department; instead,permission could only be granted by Taylor's next of kin.

Although Dr. Wilson filed a motion in limine to bar theintroduction of Taylor's autopsy report, Dr. Wilson never soughtan independent autopsy. He is now seeking to use his inaction asa sword to strike down the Department's evidence. Moreover, nosuggestion was made that the autopsy report was erroneous,faulty, or not reliable. Absent such a showing, there is nobasis to exclude the report. The records of a Medical Examinerwill be received as competent evidence in any criminal or civilaction. See Heitz v. Hogan, 134 Ill. App. 3d 352, 357, 480N.E.2d 185 (1985); 725 ILCS 5/115-5.1 (West 1996) ("In any civilor criminal action the records of the coroner's medical orlaboratory examiner summarizing and detailing the performance ofhis or her official duties in performing medical examinationsupon deceased persons *** shall be received as competent evidencein any court of this State"). Because Dr. Wilson neverchallenged any findings in the autopsy report, there was no basisto challenge the use of the Medical Examiner's death certificateas competent evidence. Therefore, the admission of the autopsyreport in this case cannot be error.

Dr. Wilson urges us to follow the decisions of People v.Newberry, 265 Ill. App. 3d 688, 638 N.E.2d 1196 (1994), andPeople v. Dodsworth, 60 Ill. App. 3d 207, 376 N.E.2d 449 (1978);however, those cases are readily distinguishable. Both involvedcriminal defendants charged with controlled-substance-relatedoffenses that sought to bolster their defenses by testingsubstances the State identified as illegal. Dr. Wilson'sreliance on criminal law standards regarding the destruction ofevidence is misplaced. Although due process rights are presentin both civil and criminal cases, even criminal due process,which affords greater protection, does not mandate "anundifferentiated and absolute duty to retain and to preserve allmaterial that might be of conceivable evidentiary significance." Arizona v. Youngblood, 488 U.S. 51, 58, 102 L. Ed. 2d 281, 289,109 S. Ct. 333, 337 (1988).

The admission of the Medical Examiner's autopsy report anddenial of Dr. Wilson's motion in limine to exclude it wereevidentiary issues. An administrative agency's decisionregarding the admission of evidence is discretionary and shouldbe reviewed as such. Morelli v. Ward, 315 Ill. App. 3d 492, 497,734 N.E.2d 87 (2000). Our legislature has deemed the result of aMedical Examiner's inquest sufficient for evidentiary purposes. See 725 ILCS 5/115-5.1 (West 1996). Based on the presumptiveadmissibility of the autopsy report and the absence of anysubstantive challenge to the contents of the report, we reversethe circuit court and find that the ALJ's decision to allow theautopsy into evidence was not an abuse of discretion. Morelli,315 Ill. App. 3d at 497.B. Motion to Reexamine Dr. Waller

The ALJ denied Dr. Wilson's motion to reopen the proceedingsand recall Dr. Waller. The Department argues the ALJ did notabuse his discretion in refusing to give Dr. Wilson theopportunity to recall Dr. Waller because (1) Dr. Wilson refusedto participate in the administrative proceedings, (2) Dr. Wilsonwas not diligent in preserving his rights, and (3) there was noprejudice. Dr. Wilson argues the ALJ's denial of his motion toreopen the proceedings violated his due process rights.

The circuit court found the ALJ's denial of Dr. Wilson'smotion to reopen the proceedings and recall Dr. Waller wasreversible error. Although the circuit court used an incorrectstandard of review in its analysis of this issue, we find the ALJdid abuse its discretion in failing to grant Dr. Wilson's motion. See Bickham, 216 Ill. App. 3d at 459-60 (an administrativeagency's decision regarding the conduct of a hearing is governedby an abuse of discretion standard).

Although we review the ALJ's denial of Dr. Wilson's motionto reopen with great deference (People v. Coleman, 183 Ill.2d366, 387, 701 N.E.2d 1063 (1998)), the revocation of aprofessional license carries with it dire consequences (Smith,412 Ill. at 344). "In a proceeding so serious, due process oflaw requires a definite charge, adequate notice, and a full, fairand impartial hearing." Smith, 412 Ill. at 344. Therefore,under the circumstances of this case, justice demanded Dr. Wilsonbe given a reasonable opportunity to recall his expert witness. Lindeen v. Illinois State Police Merit Board, 25 Ill. 2d 349,352, 185 N.E.2d 206 (1962).

Even though Dr. Wilson did not aid his case by leaving theadministrative hearing, his decision to walk out of theproceeding did not abridge his right to a full opportunity topresent his case. Moreover, although the Department did notpursue its right to a complete cross-examination of Dr. Waller,Dr. Wilson's right to redirect his expert witness is independentof the State's decision whether or not to continue with itscross-examination. See Six-Brothers King Drive Supermarket, Inc.v. Department of Revenue, 192 Ill. App. 3d 976, 983-84, 549N.E.2d 586 (1989) ("[b]asic notions of fair play require thatparties have an opportunity to cross-examine, explain or refutefacts which form the basis for an administrative agency'sadjudication").

Dr. Waller's testimony ended in the midst of theDepartment's cross-examination. The ALJ, the Department, and Dr.Wilson's attorneys agreed Dr. Waller would be recalled at a laterdate. At the time of the agreement, Dr. Waller made it clear hewas not available until after November 18, the third and finalday of the hearing. Therefore, Dr. Waller could have returned totestify at the hearing as early as November 19. Such a shortdelay would have presented no prejudice to the Department butwould have allowed Dr. Wilson a full opportunity to present hiscase, as justice requires.

"[D]espite the added expense and inconvenience reschedulingthe hearing might have caused [the Department] *** the reason[s]for the continuance [were] legitimate; granting it was requiredto meet the ends of justice." Ullmen v. Department ofRegistration & Education, 67 Ill. App. 3d 519, 523, 385 N.E.2d 58(1978). In the first instance, Dr. Wilson was not able totestify until after November 18, the date Dr. Wilson wasscheduled to continue with his defense. Further, because Dr.Wilson called Dr. Waller to testify at the beginning of theadministrative hearing, Dr. Waller was unable to dispute thetestimony of the Department's experts regarding whether or notundiluted potassium chloride was a proper palliative agent. Moreover, in its brief to this court the Department admits, "thequestion of ethics and professional responsibility in caring fordying patients was a matter for the experts: [Drs.] Waller andSiegler." Significantly, the ALJ found the testimony of theDepartment's expert, Dr. Siegler, more convincing than thetestimony of Dr. Wilson's expert, Dr. Waller, although Dr.Waller's testimony was incomplete.

Although we agree that the ALJ was correct in not delayingthe Department's proceedings against Dr. Wilson while he pursuedan action in federal court, there is a difference between holdingproceedings in abeyance and limiting the evidence that may bepresented for consideration. "A continuance required by the endsof justice should not be denied, and a refusal to grant such acontinuance has been held to be an abuse of discretion warrantingreversal." Ullmen, 67 Ill. App. 3d at 522, citing Brown v. AirPollution Control Board, 37 Ill. 2d 450, 454-55, 377 N.E.2d 1297(1967). An administrative agency possesses broad discretion indetermining whether to allow a continuance. Wegmann v.Department of Registration & Education, 61 Ill. App. 3d 352, 357,377 N.E.2d 1297 (1978). "Such discretion, however, 'must beexercised judiciously, and not arbitrarily' so as to satisfy theends of justice." Bickham, 216 Ill. App. 3d at 459, quotingBrown, 37 Ill. 2d at 454. "Under the special circumstances ofthis case, it is our opinion that the ends of justice and dueprocess would have been better served if [Dr. Wilson's] request[to reopen the proceedings] had been allowed." Smith, 412 Ill.at 343. Based on our review of the administrative hearing, wefind that in considering Dr. Wilson's motion to reopen theproceedings so that he could present a complete defense bycalling his expert witness in redirect and possible rebuttal tothe State's expert, the ALJ abused his discretion in denying Dr.Wilson's motion.

Therefore, because it was an abuse of discretion to deny Dr.Wilson's motion to reopen the proceedings in order to recall hisexpert, Dr. Waller, the matter should have been remanded by thecircuit court. See Brown, 37 Ill. 2d at 454-57 (ordering remandwhere agency erred in not granting a continuance); see alsoUllmen, 67 Ill. App. 3d at 522-23.

CONCLUSION

The judgment of the circuit court is affirmed as to itsfinding that the ALJ abused his discretion in denying Dr.Wilson's motion to reopen the proceedings, reversed as to itsfinding that the ALJ abused his discretion in allowing theMedical Examiner's autopsy report into evidence. The circuitcourt's order vacating the license revocation is itself vacatedand this matter is remanded to the Department with directions toallow Dr. Wilson a reasonable continuance to recall his expertwitness.

Affirmed in part, reversed in part and remanded for furtherproceedings before the Department.

CAHILL and BURKE, JJ., concur.

1. Although Dr. Wilson asserts the Department "did not fairlysummarize the facts," as pointed out by the Department, Dr.Wilson failed to (1) demonstrate how the Department's statementof facts violated Supreme Court Rule 341(e)(6) (188 Ill. 2d R.341(e)(6)) or (2) supply a counterstatement of facts supported bycitation to the record. Further, that section of Dr. Wilson'sbrief asserting that the Department's statement of facts isunfair is riddled with argument and cannot itself constitute anappropriate statement of facts as mandated by the rule. See 188Ill. 2d Rs. 341(f), (e)(6); Aboufariss v. City of De Kalb, 305Ill. App. 3d 1054, 1058, 713 N.E.2d 804 (1999) (statement offacts violating Rule 341(e)(6) (188 Ill. 2d R. 341(e)(6)) willnot be considered). Therefore, Dr. Wilson's comments regardingthe Department's statement of facts will be disregarded.

2. "'Palliative care' means treatment to provide for the reductionor abatement of pain *** rather than treatment aimed atinvestigation and intervention for the purpose of cure orinappropriate prolongation of life." 210 ILCS 60/3(i) (West1996).

3. Although the Department's Director adopted the DisciplinaryBoard's findings, the Department's Director did not adopt theDisciplinary Board's recommendations for restoring Dr. Wilson'smedical and controlled substance licenses pursuant to AlaAlbazzaz v. Department of Professional Regulation, 314 Ill. App.3d 97, 731 N.E.2d 787 (2000).

4. Dr. Wilson contends in his brief that "[t]here were numerousother grounds for reversal of the decision of the [Department]which support [the circuit court's] decision." Dr. Wilson hassought to "incorporate" these by reference to certain documentsfiled with the circuit court, rather than setting out thearguments in toto. We find this "reference" "to other groundsfor reversal" to violate Supreme Court Rules 341(e)(7) and (f)(188 Ill. 2d Rs. 341(e)(7) & (f)), the latter of which statesthat arguments "shall contain the contentions of the party ***with citation of the authorities and the pages of the recordrelied on" and "[p]oints not argued are waived." Because Dr.Wilson's "incorporated arguments" have not been briefed for thiscourt, we find them forfeited. See generally Fleming v. Countyof Kane, 855 F.2d 496, 498 (7th Cir. 1988) (parties should notadopt briefs previously filed in support of motions at thedistrict court level because it (1) results in a brief in excessof 50 pages and (2) confuses the issues presented).