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1 November 2000

JUSTICE SLATER delivered the opinion of the court:

The Illinois Department of Professional Regulation (theDepartment) placed John Paulsen's license to practice medicine onprobationary status for two years on the ground that he hadcommitted gross negligence in the practice of medicine (225 ILCS60/22(A)(4) (West 1992)). The circuit court affirmed thisdecision in an administrative review proceeding. On appeal,Paulsen contends that the Department's decision is arbitrary andcapricious and against the manifest weight of the evidence. Forthe reasons that follow, we affirm.

In 1989, Paulsen treated John Clauser for two abdominalhernias. An abdominal hernia is a protrusion of internal tissuethrough a defect in the abdominal wall. While treating thehernias, it was discovered that Clauser suffered from a gallstone, cirrhosis of the liver, portal hypertension, andhypersplenism. Portal hypertension is an increase in bloodpressure in the portal vein, the primary blood vessel bringingblood to the liver for removal of toxins. The condition is oftensymptomatic of cirrhotic liver and may cause increased bloodpressure in, and dilation of, other collateral blood vessels. Hypersplenism is a malady of the spleen whereby, among otherthings, elements of the blood necessary to coagulation, such asplatelets, are consumed by the spleen resulting in coagulationdisorders collectively known as "coagulopathy."

In addition to repairing the hernias, Paulsen removedClauser's spleen and gall bladder. Paulsen accomplished thesetasks by means of a laparotomy, i.e., a direct incision into theaffected area of the abdomen. In his notes, Paulsen observedthat the operation had gone well despite Clauser's cirrhosis and"severe" portal hypertension.

In August 1991, another physician treated Clauser forpancreatitis (inflammation of the pancreas) and peritonitis(inflammation of the peritoneum). The peritoneum is a membranelocated between the inner abdominal wall and the outer surfacesof the abdominal organs.

At discharge, the treating physician stated that Clauser'sprognosis was "somewhat dismal" because he had "hepatic [liver]insufficiency, marked esophageal varices, and will most probablydevelop further complications in the future." A varix is adilated blood vessel. An esophageal varix is a dilated bloodvessel of the esophagus.

On June 21, 1993, Clauser was admitted to the hospital afterexperiencing acute abdominal pain. Paulsen determined thatClauser was suffering from a one-to-two-centimeter abdominal,ventral hernia. A portion of Clauser's peritoneum was protrudingthrough his abdominal wall. After discussing the matter withPaulsen, Clauser elected to undergo a laparoscopic repair of thehernia. In a laparoscopy, the surgeon inserts tubes, or"trocars," into the abdomen through which he introduces anendoscope to observe the interior of the abdomen and surgicaltools to repair defects in the abdominal wall.

On July 6, 1993, despite the fact that he had not reviewedthe records of Clauser's 1991 treatment, Paulsen began to repairClauser's hernia laparoscopically. Upon inserting four 10-to-12-millimeter trocars into Clauser's abdomen, Paulsen observedseveral adhesions of the peritoneum to the abdominal wall. Inorder to conduct a search for other hernias, it was necessary toremove the adhesions by separating the adhering sections of theperitoneum from the abdominal wall. After accomplishing thistask, Paulsen discovered what might have been another smallventral hernia near the targeted hernia. It is unclear from therecord whether Paulsen ever definitively identified this apparentdefect as a secondary hernia or undertook any efforts to repairit.

During the operation, Clauser began experiencing morebleeding than Paulsen had anticipated. Paulsen converted thelaparoscopy into a conventional laparotomy to gain sufficientaccess to Clauser's abdomen so that he could properly ligate anyhemorrhaging blood vessels. Paulsen ligated several bloodvessels, placed a surgical patch over the area of the repairedhernia, and concluded the operation. Clauser lost 2,000 cubiccentimeters of blood during the operation. Clauser's normalblood volume was 6,000 cubic centimeters.

During the morning of July 7, after Clauser had receivedseveral blood transfusions, it became evident that he was stillbleeding internally. Paulsen undertook another surgery to stopthe internal hemorrhaging. After Paulsen ligated several moreblood vessels, the bleeding appeared to cease.

Subsequently, however, Clauser developed a condition knownas disseminated intravascular coagulation (DIC). DIC is a bloodcoagulation disorder characterized by a reduction in the elementsnecessary to blood clotting due to their use within bloodvessels. In the late stages of DIC, hemorrhaging is profuse andwidespread. The development of DIC is a risk for patients withhepatic cirrhosis. Latent DIC is sometimes activated by thetrauma associated with surgery.

Clauser's condition stabilized. However, by that time,Clauser had developed adult respiratory distress syndrome. OnJuly 20, Clauser died of pulmonary failure.

In March 1996, the Department filed its complaint allegingthat Paulsen had committed gross negligence in the practice ofmedicine (225 ILCS 60/22(a)(4) (West 1992)). In particular, theDepartment alleged that the following acts or omissions, amongothers, were evidence of Paulsen's recklessness or carelessness:(1) failing to do preoperative blood clotting studies; (2)failing to obtain a complete preoperative evaluation; and (3)performing a laparoscopic repair rather than a conventionallaparotomy.

The matter proceeded to a hearing. At the hearing, Paulsentestified that he had completed 150 hours of continuing medicaleducation (CME) concerning laparoscopic techniques by the time ofClauser's surgery. He had employed laparoscopy to performapproximately 250 cholecystectomies (gall bladder removals), 30to 40 repairs of inguinal hernias (hernias in the groin region),3 repairs of ventral hernias, and an appendectomy. Paulsenrecalled that he had performed his first laparoscopic ventralhernia repair in March 1993. Paulsen agreed that ventral herniasare more difficult to repair than other types of hernias due tothe frequency of adhesions.

Paulsen recalled that Clauser was a heavy laborer,approximately 5'10" tall and 195 pounds with a "somewhat rotund"physique. Paulsen believed that laparoscopy was the preferredmethod to repair Clauser's ventral hernia for several reasons. First, given Clauser's physical characteristics, the likelihoodthat the hernia would recur if repaired by a laparotomy was 50%. Second, laparoscopy allows the surgeon to see more of the abdomenand more easily identify secondary hernias than does laparotomy. Third, laparoscopy requires less recovery time and allowspatients to return to work earlier.

Paulsen recalled that Clauser told him he had been treatedfor pancreatitis in 1991, but did not mention that he had alsosuffered from peritonitis in 1991. Paulsen did not review therecords from Clauser's 1991 treatment prior to undertaking the1993 surgery. However, Paulsen testified that, even if he hadreviewed the records, the information in those records would nothave changed his decision to proceed with a laparoscopic repairof Clauser's hernia.

Preoperative testing showed Clauser's platelet level to be133,000. Paulsen testified that a platelet level less than50,000 is a contraindication for surgery. An hour into theJuly 6 surgery, Paulsen converted the operation into a laparotomydue to persistent bleeding from open blood vessels. However, atno time did Paulsen find evidence of coagulopathy. Likewise,Paulsen observed no signs of coagulopathy during the July 7operation. According to Paulsen, Clauser probably beganexperiencing DIC by the evening of July 7 when his platelet leveldropped to 52,000.

The Department called physician Max D. Hammer, a general andvascular surgeon, to testify. Hammer testified that he hasperformed several laparoscopic procedures, includingsplenectomies and cholecystectomies. He estimated that he hasperformed less than five ventral hernia repairs laparoscopically. In addition, Hammer testified that he has never performed alaparoscopic operation on a patient with cirrhosis or portalhypertension.

In Hammer's opinion, Paulsen's decision to repair Clauser'sventral hernia laparoscopically was careless. Hammer observedthat, although a ventral hernia should normally be repaired, therisk presented by laparoscopic repair was "exorbitant" in view ofClauser's cirrhosis, portal hypertension, and the reduction inintraperitoneal space resulting from Clauser's prior surgeries. Hammer also testified that Paulsen should have ordered bloodclotting assays prior to performing the surgery. Hammer furthertestified that he probably would not have reviewed the recordsrelated to Clauser's 1991 pancreatitis and peritonitis.

On cross-examination, Hammer testified that converting alaparoscopy to a laparotomy in order to control hemorrhaging iswithin the standard of care. Moreover, Hammer agreed thatlaparoscopy has a number of advantages over the laparotomy. Specifically, Hammer admitted that it is easier to identifysecondary hernias with laparoscopy, that a patient generallyexperiences less post-operative discomfort, and the patient canusually return to work faster. In addition, although heestimated the recurrence rate for ventral hernias is 10%, heagreed that the rate increases in obese patients and that Clauserwas obese or close to obese. Hammer also testified that DIC canbe triggered by a laparotomy, as well as a laparoscopy.

The Department called physician Andrew Gorchynsky totestify. Gorchynsky testified that he is familiar with and hasperformed a number of laparoscopic operations. Although he hasrepaired ventral hernias, he has never repaired a ventral hernialaparoscopically.

Gorchynsky opined that Paulsen had committed "grossnegligence" by performing a laparoscopy on Clauser. Inparticular, Paulsen "inadequately assessed [Clauser]preoperatively" and Clauser's condition contraindicatedlaparoscopy as a method to repair the ventral hernia. Withrespect to Clauser's preoperative condition, Gorchynsky opinedthat a laparoscopy should not have been performed in view ofClauser's portal hypertension, the extensive prior surgery in theperitoneal area, and the history of inflammation (the 1991pancreatitis and peritonitis).

Gorchynsky testified that a laparotomy would not haverequired Paulsen to dissect the peritoneum away from theabdominal wall. As a result, Paulsen would not have violated theblood vessels in the peritoneum and adjacent structures if he hadperformed a laparotomy, rather than a laparoscopy.

Dr. Thom E. Lobe testified on behalf of Paulsen. Lobetestified that he teaches laparoscopic techniques and is familiarwith the national standard of care for laparoscopic surgery. Lobe opined that Paulsen's decision to perform a laparoscopy wasnot a deviation from the standard of care. In particular, Lobeasserted that cirrhosis, portal hypertension, varices, andadhesions were not contraindications to laparoscopic surgery in1993.

Lobe testified he would have ordered preoperative bloodclotting assays, but Paulsen's failure to do so had no effect onClauser's "outcome." Lobe found no evidence of coagulopathy inthe records of the July 6 or July 7 operations. Lobe explainedthat the internal bleeding that occurred during the July 6operation was "mechanical" bleeding, or bleeding from severed orpunctured blood vessels, rather than coagulopathy. Moreover,Clauser's preoperative blood screen showed that his plateletcount was normal. Clauser only developed DIC after the July 7surgery, either that evening or the next day.

Lobe testified he would not have reviewed the records ofClauser's 1991 treatment for pancreatitis and peritonitis priorto performing a laparoscopy. According to Lobe, such a reviewwas unnecessary because the 1991 surgery related to the pancreas,an organ not directly involved in the 1993 hernia repair.

Dr. Leonard Schultz also testified on Paulsen's behalf. Schultz testified that he is familiar with the national standardof care for laparoscopic surgery, having trained approximately3,000 surgeons in laparoscopic procedures, including the repairof ventral hernias.

Schultz opined that Paulsen did not deviate from thestandard of care by performing a laparoscopy. Schultz testifiedthat Clauser's internal hemorrhaging was a complication arisingfrom the necessity of dissecting the peritoneum away from theabdominal wall, a procedure which is a necessary part of alaparotomy, as well as a laparoscopy. Schultz concluded thatClauser did not suffer any complication specific to laparoscopy.

Schultz further testified that Clauser's condition did notcontraindicate laparoscopic repair of his ventral hernia. Inaddition, Schultz testified that Paulsen did not deviate from thestandard of care when he elected not to order preoperative bloodclotting assays. According to Schultz, the assays wereunnecessary in view of Clauser's platelet count and the absenceof any visible manifestation of portal hypertension.

The Department's hearing officer concluded that Paulsen hadcommitted gross negligence in his practice of medicine by failingto review the records of Clauser's 1991 treatment forpancreatitis and peritonitis and by choosing to perform alaparoscopy, rather than a laparotomy, when a laparotomy wouldhave avoided "the problem area." The hearing officer recommendedthat Paulsen's license to practice medicine be placed onprobation for one year and that Paulsen complete 25 hours of CME. The Illinois State Medical Disciplinary Board (the Board) adoptedthe hearing officer's findings of fact and conclusions of law,but recommended that the director of the Department (theDirector) place Paulsen's license on probation for two years andrequire him to complete 50 hours of CME. The Director followedthe Board's recommendation.

Pursuant to the Administrative Review Law (735 ILCS 5/3--101et seq. (West 1998)), Paulsen filed a complaint in the circuitcourt seeking judicial review of the Department's decision. Thecircuit court affirmed the Department's decision, ruling that thedecision was not contrary to the manifest weight of the evidence.

On appeal, Paulsen contends that the Department's decisionis arbitrary and capricious and against the manifest weight ofthe evidence.

Judicial review of an administrative decision extends to allquestions of law and fact presented by the administrative record. Abrahamson v. Illinois Department of Professional Regulation, 153Ill. 2d 76, 606 N.E.2d 1111 (1992). On administrative review, itis not the court's function to reweigh the evidence or make anindependent determination of the facts. Abrahamson, 153 Ill. 2d76, 606 N.E.2d 1111. Rather, the court is to ascertain whetherthe findings and decision of the agency are against the manifestweight of the evidence. Abrahamson, 153 Ill. 2d 76, 606 N.E.2d1111. A decision is against the manifest weight of the evidenceonly if the opposite conclusion is clearly evident. Abrahamson,153 Ill. 2d 76, 606 N.E.2d 1111.

Under the Medical Practice Act of 1987 (the Act) (225 ILCS60/1 et seq. (West 1992)), the Department may take disciplinaryaction against a physician if the physician has committed"[g]ross negligence in practice under [the] Act." 225 ILCS60/22(A)(4) (West 1992). The Act directs that the Department,upon recommendation of the Board, adopt rules defining whatconstitutes gross negligence in the practice of medicine. 225ILCS 60/22(A)(d) (West 1992). The rules adopted by theDepartment define gross negligence as "an act or omission whichis evidence of recklessness or carelessness toward[,] ordisregard for[,] the safety or well-being of the patient, andwhich results in injury to the patient." 68 Ill. Admin. Code