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No. 2--01--0952
January 28, 2002

____________________________________________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

____________________________________________________________________________________________________________

JUSTICE BOWMAN delivered the opinion of the court:

In this interlocutory appeal plaintiff, the People of the State of Illinoisex rel. Leonard Sherman, Director of the Illinois Department of ProfessionalRegulation, appeals from the judgment of the circuit court of McHenry Countydenying its motion for a preliminary injunction against defendant, Yvonne Cryns. Plaintiff had sought to enjoin defendant from practicing nursing or midwiferywithout a license. On appeal plaintiff contends that the trial court erred (1)in directing a finding for defendant and denying plaintiff's request forpreliminary injunction, and (2) in finding that it could not draw any negativeinferences from defendant's refusal to testify under the fifth amendment (U.S.Const., amend. V).

Plaintiff filed a complaint for injunctive relief against defendantpursuant 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 theDirector of the Department of Professional Regulation (Director), in the name ofthe 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 orderenforcing compliance with the Act. The complaint alleged that defendant violateda cease and desist order issued by the Director on April 7, 2000, ordering herto immediately cease and desist the practice of nursing and midwifery in Illinoisuntil she complied with certain provisions of the Act pertaining to licensing asa nurse or advanced practice nurse. The complaint alleged that the violationoccurred when defendant assisted with the birth of a baby, Spencer Verzi, at theVerzi home in Round Lake Beach on April 19, 2000.

Pursuant to plaintiff's complaint, the court entered a temporaryrestraining order against defendant and ordered a hearing to be held onplaintiff's motion for preliminary injunction. At the subsequent hearing on themotion, 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 hireddefendant to advise and assist them in delivering their baby at home. Verzirelated that they had elected to have the baby at home as opposed to a hospitalbecause of their alternative ideas regarding health care that were not shared bymost doctors. According to Verzi, he and his wife did not believe thatchildbirth was a medical procedure but rather a natural human process. They didnot want a doctor or a nurse to deliver their baby. Verzi stated that Heather'smother was their doctor, i.e., that they relied on her advice regarding healthissues.

Verzi stated that defendant understood their views and agreed to assistthem in the water birth process that the Verzis chose as the method for givingbirth to their child. The procedure involved giving birth while the mother waspartially submerged in a birthing pool. Water birth was not available in anynearby hospitals. Verzi said that defendant never told his wife and him that shewas 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 instrumentthat 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'sheartbeat.

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 thedelivery of babies. Verzi understood that this included the practice ofmidwifery. Verzi said that, regardless of the cease and desist order, he and hiswife had come to trust defendant and still wanted her to assist in the deliveryof their baby.

Verzi related that at about 10:30 a.m. on August 19, 2000, Heather's waterbroke. Defendant was called and arrived between 1 and 1:30 p.m. During the timeshe was at the Verzi home, defendant used the fetoscope four or five times. Shealso 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 footemerged first. Verzi recalled that at some point during the birthing processHeather asked defendant to pull out the baby. Defendant replied that she couldnot do that and instructed Heather to push out the baby because defendant did notknow exactly what was right for the baby, but Heather's body would know thecorrect thing to do. Verzi stated that when matters became urgent, defendantattempted to extract the baby.

When Spencer was born, he had a heartbeat but was not breathing. Defendantused the Ambu bag to administer cardiovascular pulmonary resuscitation (CPR) toSpencer for approximately 10 minutes. When defendant's efforts to resuscitatethe baby were unsuccessful, she asked those present to call 911. Defendantcontinued trying to resuscitate the baby until paramedics arrived. Verziacknowledged that in electing to have a home birth he and his wife knew thatmedical assistance was not immediately available if medical complications aroseduring the birth.

Verzi was asked if he had received a videotape of the events that occurredat his home on August 19, 2000. The videotape had been delivered to the Verzisby a police officer on the night before the instant proceedings and subsequentlypicked up by the officer after the couple had viewed it. Verzi acknowledged thatthe videotape truly and accurately portrayed the events that took place and thepersons present on that date. Verzi stated that he was not responsible for thevideotaping although he may have stopped the camcorder one or two times duringthe taping. According to Verzi, the camcorder was turned on and off frequentlythrough the tape recording. The videotape was not played in court.

The State moved for the admission of the videotape, and defendant objectedbased on lack of foundation. The court commented that it believed that thevideotape's admissibility depended upon whether someone testified that it was atrue and accurate depiction of that which it portrayed. The court then foundthat the foundation for its admission was sufficient and admitted the videotapeover defendant's objection.

The following description of what appears on the videotape is adopted inlarge part from the State's brief, which, from our review of the videotape,accurately depicts events that occurred during Spencer's birth. The videotapereveals 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 canalfirst. The videotape shows that soon after the baby's foot appeared, defendantchecked the baby's heartbeat with her fetoscope.

While Heather was laboring with only the baby's foot being born, defendantperformed a digital examination on Heather's cervix to check that the cervix hadfully dilated and that "there [wasn't] any more cervix in the way." After a fewminutes she used her Doppler and fetoscope to again listen to the baby'sheartbeat and instructed Heather to change positions to facilitate herexamination. Heather labored for almost 20 minutes with only the baby's leftfoot being born. She complained of pain and asked defendant to help pull thebaby out a little. Defendant refused and told Heather, "You know how much youcan 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. WithHeather's next push, the scrotum and part of the umbilical cord were visibleoutside the birth canal. Because it was apparent that the baby was a boy, Louisand Heather stated that the baby would be named Spencer Raymond Verzi.

A couple of minutes passed without any more of the baby being born, anddefendant stated that she wanted to check on the health of the baby. Defendantused the Doppler to perform the examination. When she could not get a heartbeatfor the baby, she instructed Heather to change positions and again listened withher equipment. Defendant still could not get a steady heartbeat and told Heatherto "get the baby out" immediately.

Heather began pushing and defendant grabbed onto the part of the babyoutside the birth canal. The water made it difficult to grab onto the baby andtherefore 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 heartbeatwith the fetoscope but again could not get a steady beat. Defendant told Heatherto "get this baby born." In the next series of pushes, the remainder of thebaby'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 andloosen the opening so that the baby's head could pass through it. Defendant alsopulled and twisted the baby's torso and tried to manipulate him through theopening. As she did so, defendant ordered Heather to push and not to take anybreaks. The baby's head exited the birth canal at approximately 4:30 p.m.

Spencer Verzi was unconscious upon birth. Defendant quickly rubbed a warmtowel over him and began trying to resuscitate him. Defendant used her Ambu bagto push air into the baby's lungs. Approximately every minute thereafter,defendant stopped her resuscitation attempts to listen to the baby's heartbeatwith the fetoscope. After using the Ambu bag for about 10 minutes, defendanttried mouth-to-mouth resuscitation. When that was unsuccessful, Cryns advisedthe Verzis to call 911.

In addition to Verzi, plaintiff called defendant as a witness. Plaintiffasked defendant whether she was certified as a midwife or licensed as a nurse inIllinois; whether a cease and desist order had been issued against her by theDepartment of Professional Regulation; whether she was present and assisted inthe delivery of Spencer Verzi in violation of the cease and desist order; whethershe had been hired as a midwife by the Verzis and paid to assist in the birth oftheir baby; whether, after informing the Verzis that a cease and desist order hadbeen entered against her, she informed them that no one else would take them onas a midwife at Heather's stage of pregnancy; and whether she told the Verzisafter assisting in Spencer's birth that she should not be present and that theyshould not tell anyone that she was there. Defendant refused to answer thesequestions and every other question asked by the State, invoking her fifthamendment rights.

Plaintiff rested its case, and defendant moved for a directed finding,arguing that plaintiff had presented no evidence showing that any acts engagedin at the Verzi home on August 19, 2000, constituted acts of nursing or acts ofadvanced practice nursing. The trial court granted the motion, finding thatplaintiff had not met its burden of proof in establishing a basis for apreliminary injunction. The court stated:

"I am not a doctor. I am not a nurse. I am not the Department ofProfessional Regulation. I do not know what it is that--there is noevidence, there is no opinion that whatever occurred was the practice ofnursing, the practice of midwifery, and I don't believe it is--at thispoint that they have established that there was a violation of a cease anddesist order for the purpose of this Court to enter a preliminaryinjunction at this stage."

Plaintiff filed a timely notice of appeal from the trial court's decision. On May 7, 2001, this court issued its decision reversing the trial court'sdetermination, finding that the trial court abused its discretion in ruling onplaintiff's request for a preliminary injunction without viewing the videotapeentered into evidence. People v. Cryns, 321 Ill. App. 3d 990, 993 (2001). Wevacated the trial court's order and remanded the cause for the court to considerall of the evidence offered at the preliminary injunction hearing, including thevideotape. Cryns, 321 Ill. App. 3d at 993-94.

Upon remand and after reviewing both the videotape and the transcript ofthe hearing in their entirety, the trial court reaffirmed its decision to grantdefendant's motion for a directed finding and to deny plaintiff's request for apreliminary injunction. The court again expressed its belief "that there is noevidence in the record, opinion evidence or other evidence, from which this Courtcould conclude that the activities of [defendant] constituted the practice ofnursing or midwifery." According to the court, "any such conclusion based uponthe record would be guess or speculation."

This appeal ensued.

Initially, we address the issue defendant has raised in her brief regardingthe admissibility of the videotape, as our determination relies in part upon whatappears upon that videotape. We note that defendant's raising of this issue doesnot require a cross-appeal. An appellee need not file a cross-appeal to preservean argument ruled on adversely to the appellee in the trial court provided thecourt's judgment was not, at least in part, against him. In re Marriage ofDeLarco, 313 Ill. App. 3d 107, 108 (2000). Here, the judgment was not againstdefendant and, therefore, we may consider the merits of this issue she raises. At trial defendant objected to the admission of the videotape based onplaintiff's failure to lay a proper foundation for the tape recording, arguing,in part, that whoever made the recording should testify. The court ruledadversely to defendant, stating that all that was needed was testimony by someonethat the videotape was a true and accurate depiction of that which it portrayed. Louis Verzi had previously testified that the videotape truly and accuratelyportrayed the events that occurred at his home on August 19, 2000. As a result,the court found that the foundation for the videotape's admission was sufficientand admitted the videotape.

The decision to admit a videotape into evidence is solely within the trialjudge's discretion (Palumbo v. Kuiken, 201 Ill. App. 3d 785, 791 (1990)) and willnot be reversed absent an abuse of discretion (Missouri Portland Cement Co. v.United Cement, Lime, Gypsum & Allied Workers International Union, Division ofBoilermakers, AFL-CIO, Local No. 438, 145 Ill. App. 3d 1023, 1027 (1986)). Avideotape can be admitted if it is identified by a witness as a portrayal ofcertain facts relevant to a particular issue and is verified by that witness withpersonal knowledge as a correct representation of these facts. Missouri PortlandCement Co., 145 Ill. App. 3d at 1027. "Verification may be furnished by thetestimony of any competent witness who has sufficient knowledge to testify thatthe videotape fully represents what it purports to portray." Missouri PortlandCement Co., 145 Ill. App. 3d at 1027. The testimony of the cameraman is notnecessary for the admission of the videotape into evidence. Missouri PortlandCement Co., 145 Ill. App. 3d at 1027.

On appeal defendant contends that the trial court abused its discretion inadmitting the videotape. Defendant maintains that, although Verzi testified thatthe videotape he watched at home on the night before the hearing depicted eventsthat occurred during the labor and birth of his child, there was no verificationat the hearing that the videotape admitted into evidence was the same one Verzihad viewed. Defendant argues that Verzi's testimony was insufficient to lay afoundation for the admission of the videotape offered at trial.

As plaintiff points out, however, defendant has failed to cite anyauthority stating that a videotape must be viewed at trial in order to establisha foundation for its admission into evidence. Moreover, we agree with plaintiffthat defendant's suggestion that the videotape entered into evidence might nothave been the same one Verzi saw is unsubstantiated, given the content of thetape. We have viewed the videotape in the record, and it clearly portrays thebirth of Spencer Verzi. As plaintiff correctly states, the date and time of thebirth are identified, as are defendant's presence and assistance in the birth.

Verzi was a competent witness to identify the videotape as portraying thelabor and birth of his child. As one present for the events that occurred onAugust 19, he possessed the personal knowledge to verify that the videotapeconstituted a correct representation of the events and the persons present. Accordingly, we conclude that the trial court did not abuse its discretion inadmitting the videotape into evidence.

Defendant also complains of plaintiff's inclusion in the appendix of itsbrief of a shortened version of the original videotape containing short segmentsreproduced from that tape. Defendant argues that it is improper to introduce newevidence for the first time on appeal and to supplement the record with materialsnot considered by the trial court. Defendant's argument is meritless. Whilematerials not taken from the record generally may not be placed before anappellate court by way of an appendix (Hubeny v. Chairse, 305 Ill. App.3d 1038,1042 (1999)), this is not what occurred here. The excerpts on the videotape inthe appendix are taken from the original videotape, which the trial court didadmit into evidence and did view. Therefore, the excerpts do not constitute newevidence or new materials not considered by the trial court.

Moreover, plaintiff is correct in its position that, pursuant to SupremeCourt Rule 342(a), an appellant's brief is to include in its appendix "othermaterials from the record which are the basis of the appeal or pertinent to it"(155 Ill. 2d R. 342(a)). The portions of the original videotape that areincluded in the record are pertinent to plaintiff's appeal because they form thebasis of its contention that defendant's assistance in delivering the Verzi babyconstituted the practice of nursing. Furthermore, we agree with plaintiff thatcopying five portions from the original videotape for inclusion in its appendixis comparable to copying pages of a trial transcript that form the basis of orare pertinent to an appellant's appeal. Consequently, we find nothing improperin the inclusion in plaintiff's appendix of a shortened videotape containingthose segments pertinent to plaintiff's appeal.

Defendant also contends that it was improper for plaintiff to cite in itsbrief to specific places on the videotape that showed defendant performingcertain actions during the delivery of the baby. However, the videotapeconstituted an exhibit that was admitted into evidence and, under Supreme CourtRules 341(e)(6) and (e)(7) (188 Ill. 2d Rs. 341(e)(6), (e)(7)), citation to itwas proper. Defendant additionally maintains that it was improper for plaintiffto describe in its brief defendant's actions during the delivery because doingso was equivalent to testifying as a witness. We, however, find no merit to thisargument. Stating what one believes a videotape shows is no different fromexpressing an opinion regarding what a photograph in evidence depicts. In eachinstance the opposing party can also express its opinion regarding the nature andcontent of the exhibit. But, as plaintiff points out, defendant has notexpressed her views regarding what is depicted by the images relied upon byplaintiff. We conclude that plaintiff's reference to the videotape constitutesproper citation to the record in support of its argument.

Having concluded that the trial court's admission of the videotape wasproper, we proceed to plaintiff's contention that the court erred in grantingdefendant's motion for a directed finding at the conclusion of plaintiff's casein chief. Plaintiff maintains that, contrary to the trial court's determination,evidence was presented that defendant was practicing nursing or midwifery withouta license on August 19, 2000, when she assisted in the delivery of the Verzibaby.

In a nonjury case the defendant may, at the close of the plaintiff's case,move for a finding or a judgment in his favor. 735 ILCS 5/2--1110 (West 1998). In ruling on such a motion, the trial court must follow a two-step analysis,first determining as a matter of law whether the plaintiff has made a prima faciecase and entering a judgment for the defendant if the plaintiff has failed to doso. Evans v. Gurnee Inns, Inc., 268 Ill. App. 3d 1098, 1102 (1994). If thecourt finds that the plaintiff has established a prima facie case, it must thenweigh the evidence, including that which favors the defendant. Orbeta v. Gomez,315 Ill. App. 3d 687, 690 (2000). After weighing the evidence, the court appliesthe standard of proof required for the underlying cause to determine whethersufficient proof remains to sustain the plaintiff's prima facie case. Wehde v.Regional Transportation Authority, 237 Ill. App. 3d 664, 676 (1992). If thecourt decides that evidence necessary to the plaintiff's prima facie case hasbeen negated, the court should grant the motion for a directed finding and enterjudgment for the defendant. Orbeta, 315 Ill. App. 3d at 690. The trial court'sdecision under the second part of this analysis will not be disturbed unless itis contrary to the manifest weight of the evidence. Estate of Price v. UniversalCasualty Co., 322 Ill. App. 3d 514, 517 (2001).

In the present case the trial court decided only that plaintiff had failedto present any evidence that defendant was practicing nursing or midwifery inviolation of the Nursing and Advanced Practice Nursing Act (225 ILCS 65/5--1 etseq. (West 1998)), i.e., that plaintiff failed to establish a prima facie caseas a matter of law. When a trial court determines that the plaintiff has failedto establish a prima facie case as a matter of law, the reviewing court mustconsider that determination under a de novo standard of review. Zamarron v.Pucinski, 282 Ill. App. 3d 354, 358 (1996).

To establish a prima facie case, the plaintiff must present at least someevidence on each element essential to its cause of action. Elane v. St. BernardHospital, 284 Ill. App. 3d 865, 872 (1996). Here, plaintiff was seeking apreliminary injunction against defendant. When a person is practicing nursingwithout a license in Illinois, the State possesses the statutory authority topetition the court for an injunction against that person. 225 ILCS 65/20--75(West 1998). A statutory claim for injunctive relief need not satisfy thetraditional principles of equity because it is based upon the presumption thatpublic harm occurs when the statute is violated. Midland Enterprises, Inc. v.City of Elmhurst, 226 Ill. App. 3d 494, 504 (1993). Rather, the State isrequired to show only that the statute was violated and that the statute reliedupon specifically allows injunctive relief. Midland Enterprises, 226 Ill. App.3d at 504. In the present case, plaintiff made a prima facie case that defendantwas practicing nursing or midwifery without a license through the testimony ofLouis Verzi as well as the videotape admitted into evidence.

Because the practice of nursing affects the public health, safety, andwelfare of Illinois citizens, the legislature enacted the Nursing and AdvancedPractice Nursing Act to regulate and control the practice. 225 ILCS 65/5--5(West 1998). In carrying out its purpose, the Act is to be liberally construed. 225 ILCS 65/5--5 (West 1998). Under the Act "any person practicing or offeringto practice professional and practical nursing in Illinois shall submit evidencethat he or she is qualified to practice, and shall be licensed as provided underthe Act." 225 ILCS 65/5--15 (West 1998). The Act further provides that "[n]operson shall practice or offer to practice professional or practical nursing inIllinois or use any title, sign, card or device to indicate that such a personis practicing professional or practical nursing unless such person has beenlicensed under the provisions of this Act." 225 ILCS 65/5--15 (West 1998).

Pursuant to section 5--10(l) of the Act, "[r]egistered professional nursingpractice" includes, in pertinent part:

"all nursing specialities and means the performance of any nursingact based upon professional knowledge, judgment, and skills acquired bymeans of completion of an approved registered professional nursingeducation program. A registered professional nurse provides nursing careemphasizing the importance of the whole and the interdependence of itsparts through the nursing process to individuals, groups, families, orcommunities, that includes but is not limited to: (1) the assessment ofhealthcare needs, nursing diagnosis, planning, implementation, and nursingevaluation; (2) the promotion, maintenance, and restoration of health; (3)counseling, patient education, health education, and patient advocacy." 225 ILCS 65/5--10(l) (West 1998).

A nurse specializing in the delivery of babies is referred to as acertified nurse midwife in the Act and is categorized as an "[a]dvanced practicenurse" (225 ILCS 65/15--5 (West 1998)). An advanced practice nurse is anindividual licensed as a registered professional nurse under the Act. 225 ILCS65/15--5 (West 1998). A certified nurse midwife must work in collaboration witha licensed physician. 225 ILCS 65/15--5 (West 1998). Once a midwife hassatisfied the foregoing requirements, she can care for patients by using"medical, therapeutic, and corrective measures to treat illness and improvehealth status." 225 ILCS 65/15--5 (West 1998).

In the present case Louis Verzi testified that he and his wife, Heather,had hired and paid defendant to advise and assist them in delivering their babyat home. According to Verzi, they had not wanted a doctor or nurse to delivertheir baby. At some point during Heather's pregnancy the couple learned that acease and desist order had been issued against defendant, precluding her fromassisting in the delivery of babies. It was Verzi's understanding that defendantwas told not to practice midwifery. According to Verzi, he did not knowspecifically what the term "midwifery" meant. Nonetheless, midwifery is definedas "the art or act of assisting at childbirth" (Webster's Third New InternationalDictionary 1432 (1993)), and, clearly, it was for this purpose, as testified toby Verzi, that he and his wife had hired defendant. Moreover, that defendant washired by the Verzis as a midwife is evident from the videotape. On the videotapedefendant's arrival at the Verzi home is announced as "Yvonne, the midwife, hasarrived."

The videotape reveals that, as Heather began to give birth to the baby'sfoot, defendant stated that she wanted to examine Heather to make certain thatthere was no more cervix remaining in the vaginal canal to block the baby'spassage. Defendant then performed a digital examination to determine if Heatherwas fully dilated. During Heather's labor, defendant checked the baby's heartrate on several occasions in utero, i.e., while the baby was still in the uterus,using a fetoscope. Also, during Heather's labor, particularly after the lowerhalf of the baby had been born, defendant used a device called a Doppler that sheplaced on Heather's stomach to monitor the baby's heartbeat.

Following one of defendant's checks with the Doppler, she ordered Heatherout of the birthing pool and onto the rug, arranged her labor position, andrepeatedly instructed her to "get this baby born." The videotape reveals thatdefendant used her fingers to stretch the vaginal opening to try to ease thebaby's passage and both pulled and twisted the baby to manipulate him through thevaginal canal. Once the child was born, defendant cleaned him with a towel andbegan using her Ambu bag to push air into his lungs. The tape shows that aboutevery minute thereafter defendant stopped her resuscitation efforts to listen tothe baby's heartbeat with her fetoscope. After approximately 10 minutes oftrying to resuscitate him with the Ambu bag, defendant tried mouth-to-mouthresuscitation. When this was unsuccessful, she advised the Verzis to call 911. She then reminded the Verzis that she was not supposed to be present and thatthey had previously discussed this fact. She asked that they not tell anyonethat she had been assisting in the baby's delivery and asked that they hide hermedical instruments.

Defendant's foregoing comments demonstrate that she knew her participationin Spencer's birth violated the Act. Moreover, her conduct during and afterHeather's labor evidenced that she was practicing nursing or midwifery. We agreewith plaintiff that, in checking Heather's cervix to determine if she was fullydilated and in checking the baby's heartbeat in utero with her fetoscope,defendant was assessing both Heather's and the baby's "healthcare needs" andmaking "nursing evaluation[s]" in violation of section 5--10(1) of the Act (225ILCS 65/5--10(l) (West 1998)). Furthermore, defendant's attempts to promote,maintain, and restore Spencer's health when she pulled and twisted him throughthe vaginal opening and tried to resuscitate him after his birth also constitutedadditional violations of section 5--10(1) (225 ILCS 65/5--10(1) (West 1998)). These same actions constituted "corrective measures" to improve his health statusand were further violations of the Act (225 ILCS 65/15--5 (West 1998)).

Also, we note that defendant's conduct in stretching Heather's vaginalopening with her hands to ease the passage of the baby's head through the openingand then pulling and twisting the baby's torso to manipulate him through theopening constituted more than mere "assisting" at childbirth. Rather, inphysically removing or extracting the baby's head from the vaginal canal,defendant was participating in the actual delivery of the baby.

The Act sets forth the activities that the legislature considers toconstitute the practice of nursing. See 225 ILCS 65/5--10(l); 65/15--5 (West1998). Additionally, the Act provides courts with the power to enjoinindividuals who engage in these activities without the proper license. 225 ILCS65/20--75(a) (West 1998). The videotape and Louis Verzi's testimony constitutedsufficient evidence to establish a prima facie case that on August 19, 2000,defendant performed certain acts that constituted the practice of nursing andthat, therefore, were prohibited for an individual without a nursing license. In our view, no "guess or speculation," as stated by the trial court in reachingits decision, was necessary on the trial court's part to reach such a conclusion. The Act "gives adequate notice of what duties a person without a nursing licenseis unable to perform" (People v. Stults, 291 Ill. App. 3d 71, 84 (1997)).

In Stults this court made the foregoing finding regarding section 3 of theformer Illinois Nursing Act of 1987 (225 ILCS 65/3(1) (West 1996). Subsequently,that provision became section 5--10(l) of the Nursing and Advanced PracticeNursing Act (225 ILCS 65/5--10(l) (West 2000)). The two provisions are similar,but section 5--10(l) is more definitive than the former provision. As a result,it provides more than "adequate" notice regarding the acts an individual withouta nursing license cannot perform. Thus, the trial court could have applied thestatute to defendant's actions to determine whether those actions constitutednursing.

We conclude that the trial court erred in finding that plaintiff presentedno evidence from which the court could conclude that defendant's activitiesconstituted the practice of nursing or midwifery. Plaintiff established a primafacie case that defendant was practicing nursing or midwifery without a licenseand, consequently, the trial court erred in granting defendant's motion for adirected finding.

Plaintiff also raises the contention on appeal that the trial court erredin finding that it could not draw any negative inferences from defendant'srefusal to testify under the fifth amendment. Plaintiff asserts that the fifthamendment does not forbid adverse inferences against parties to civil actionswhen they refuse to testify in response to probative evidence offered againstthem. However, this principle of law is not dispositive here. The recordreveals that a criminal case was pending against defendant in Lake County, whereSpencer Verzi's birth occurred. Thus, the danger existed that defendant'sanswers to plaintiff's questions could be used against her in her pendingcriminal case.

The purpose of the self-incrimination clause contained in the fifthamendment is to protect a witness from prosecution and punishment based on hisown testimony. People v. James, 304 Ill. App. 3d 52, 59 (1999). "The privilegeagainst self-incrimination may be invoked in any proceeding, civil or criminal,in which the witness reasonably believes that the information sought, ordiscoverable as a result of his testimony, could be used in a subsequent criminalproceeding against him." Relsolelo v. Fisk, 317 Ill. App. 3d 798, 802 (2000). At the time of the hearing on plaintiff's motion for a preliminary injunction,the trial court was aware that there was a criminal case pending againstdefendant.

When plaintiff called defendant at the hearing, plaintiff asked defendantquestions aimed at obtaining information regarding whether she was certified asa midwife or licensed as a nurse; whether she had been hired and paid by theVerzis to assist as a midwife in the delivery of their baby; whether she waspresent and assisted in the delivery of Spencer Verzi in violation of the ceaseand desist order issued against her by the Department of Professional Regulation;and whether, after assisting in Spencer's birth, she told the Verzis that theyshould not tell anyone she was there because she should not have been present. Clearly, such questions compelled defendant to be a witness against herself inviolation of the fifth amendment because the answers to the questions could beused in the criminal proceeding pending against her. In this instance,therefore, where defendant's answers might have incriminated her in futurecriminal proceedings, the trial court did not err in finding that it could notdraw any negative inferences from defendant's invocation of her fifth-amendmentprivilege against self-incrimination in the present civil proceeding. SeeRelsolelo, 317 Ill. App. 3d at 802.

Based on the reasons given above, we reverse the judgment of the circuitcourt of McHenry County denying plaintiff's preliminary injunction by grantinga directed finding in defendant's favor at the close of plaintiff's case in chiefand remand the cause for further proceedings.

Reversed and remanded.

McLAREN and GROMETER, JJ., concur.