{
  "id": 1025910,
  "name": "JOHN PAULSEN, Plaintiff-Appellant, v. THE DEPARTMENT OF PROFESSIONAL REGULATION et al., Defendants-Appellees",
  "name_abbreviation": "Paulsen v. Department of Professional Regulation",
  "decision_date": "2000-11-01",
  "docket_number": "No. 3-99-0372",
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  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "JOHN PAULSEN, Plaintiff-Appellant, v. THE DEPARTMENT OF PROFESSIONAL REGULATION et al., Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "JUSTICE SLATER\ndelivered the opinion of the court:\nThe Illinois Department of Professional Regulation (the Department) placed John Paulsen\u2019s license to practice medicine on probationary status for two years on the ground that he had committed gross negligence in the practice of medicine (225 ILCS 60/22(A) (4) (West 1992)). The circuit court affirmed this decision in an administrative review proceeding. On appeal, Paulsen contends that the Department\u2019s decision is arbitrary and capricious and against the manifest weight of the evidence. For the reasons that follow, we affirm.\nIn 1989, Paulsen treated John Clauser for two abdominal hernias. An abdominal hernia is a protrusion of internal tissue through a defect in the abdominal wall. While treating the hernias, it was discovered that Clauser suffered from a gall stone, cirrhosis of the liver, portal hypertension, and hypersplenism. Portal hypertension is an increase in blood pressure in the portal vein, the primary blood vessel bringing blood to the liver for removal of toxins. The condition is often symptomatic of a cirrhotic liver and may cause increased blood pressure in, and dilation of, other collateral blood vessels. Hypersplenism is a malady of the spleen whereby, among other things, elements of the blood necessary to coagulation, such as platelets, are consumed by the spleen resulting in coagulation disorders collectively known as \u2018 \u2018coagulopathy. \u2019 \u2019\nIn addition to repairing the hernias, Paulsen removed Clauser\u2019s spleen and gall bladder. Paulsen \u00e1ccomplished these tasks by means of a laparotomy, i.e., a direct incision into the affected area of the abdomen. In his notes, Paulsen observed that the operation had gone well despite Clauser\u2019s cirrhosis and \u201csevere\u201d portal hypertension.\nIn August 1991, another physician treated Clauser for pancreatitis (inflammation of the pancreas) and peritonitis (inflammation of the peritoneum). The peritoneum is a membrane located between the inner abdominal wall and the outer surfaces of the abdominal organs.\nAt discharge, the treating physician stated that Clauser\u2019s prognosis was \u201csomewhat dismal\u201d because he had \u201chepatic [liver] insufficiency, marked esophageal varices, and will most probably develop further complications in the future.\u201d A varix is a dilated blood vessel. An esophageal varix is a dilated blood vessel of the esophagus.\nOn June 21, 1993, Clauser was admitted to the hospital after experiencing acute abdominal pain. Paulsen determined that Clauser was suffering from a one- to two-centimeter abdominal, ventral hernia. A portion of Clauser\u2019s peritoneum was protruding through his abdominal wall. After discussing the matter with Paulsen, Clauser elected to undergo a laparoscopic repair of the hernia. In a laparoscopy, the surgeon inserts tubes, or \u201ctrocars,\u201d into the abdomen through which he introduces an endoscope to observe the interior of the abdomen and surgical tools to repair defects in the abdominal wall.\nOn July 6, 1993, despite the fact that he had not reviewed the records of Clauser\u2019s 1991 treatment, Paulsen began to repair Clauser\u2019s hernia laparoscopically. Upon inserting four 10- to 12-millimeter tro-cars into Clauser\u2019s abdomen, Paulsen observed several adhesions of the peritoneum to the abdominal wall. In order to conduct a search for other hernias, it was necessary to remove the adhesions by separating the adhering sections of the peritoneum from the abdominal wall. After accomplishing this task, Paulsen discovered what might have been another small ventral hernia near the targeted hernia. It is unclear from the record whether Paulsen ever definitively identified this apparent defect as a secondary hernia or undertook any efforts to repair it.\nDuring the operation, Clauser began experiencing more bleeding than Paulsen had anticipated. Paulsen converted the laparoscopy into a conventional laparotomy to gain sufficient access to Clauser\u2019s abdomen so that he could properly ligate any hemorrhaging blood vessels. Paulsen ligated several blood vessels, placed a surgical patch over the area of the repaired hernia, and concluded the operation. Clauser lost 2,000 cubic centimeters of blood during the operation. Clauser\u2019s normal blood volume was 6,000 cubic centimeters.\nDuring the morning of July 7, after Clauser had received several blood transfusions, it became evident that he was still bleeding internally. Paulsen undertook another surgery to stop the internal hemorrhaging. After Paulsen ligated several more blood vessels, the bleeding appeared to cease.\nSubsequently, however, Clauser developed a condition known as disseminated intravascular coagulation (DIC). DIC is a blood coagulation disorder characterized by a reduction in the elements necessary to blood clotting due to their use within blood vessels. In the late stages of DIC, hemorrhaging is profuse and widespread. The development of DIC is a risk for patients with hepatic cirrhosis. Latent DIC is sometimes activated by the trauma associated with surgery.\nClauser\u2019s condition stabilized. However, by that time, Clauser had developed adult respiratory distress syndrome. On July 20, Clauser died of pulmonary failure.-\nIn March 1996, the Department filed its complaint alleging that Paulsen had committed gross negligence in the practice of medicine (225 ILCS 60/22(A)(4) (West 1992)). In particular, the Department alleged that the following acts or omissions, among others, were evidence of Paulsen\u2019s 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 conventional laparotomy.\nThe matter proceeded to a hearing. At the hearing, Paulsen testified that he had completed 150 hours of continuing medical education (CME) concerning laparoscopic techniques by the time of Clauser\u2019s surgery. He had employed laparoscopy to perform approximately 250 cholecystectomies (gall bladder removals), 30 to 40 repairs of inguinal hernias'(hernias in the groin region), 3 repairs of ventral hernias, and an appendectomy. Paulsen recalled that he had performed his first laparoscopic ventral hernia repair in March 1993. Paulsen agreed that ventral hernias are more difficult to repair than other types of hernias due to the frequency of adhesions.\nPaulsen recalled that Clauser was a heavy laborer, approximately 5 feet 10 inches tall and 195 pounds with a \u201csomewhat rotund\u201d physique. Paulsen believed that laparoscopy was the preferred method to repair Clauser\u2019s ventral hernia for several reasons. First, given Clauser\u2019s physical characteristics, the likelihood that the hernia would recur if repaired by a laparotomy was 50%. Second, laparoscopy allows the surgeon to see more of the abdomen and more easily identify secondary hernias than does laparotomy. Third, laparoscopy requires less recovery time and allows patients to return to work earlier.\nPaulsen recalled that Clauser told him he had been treated for pancreatitis in 1991 but did not mention that he had also suffered from peritonitis in 1991. Paulsen did not review the records from Clauser\u2019s 1991 treatment prior to undertaking the 1993 surgery. However, Paulsen testified that, even if he had reviewed the records, the information in those records would not have changed his decision to proceed with a laparoscopic repair of Clauser\u2019s hernia.\nPreoperative testing showed Clauser\u2019s platelet level to be 133,000. Paulsen testified that a platelet level less than 50,000 is a contraindication for surgery. An hour into the July 6 surgery, Paulsen converted the operation into a laparotomy due to persistent bleeding from open blood vessels. However, at no time did Paulsen find evidence of coagu-lopathy. Likewise, Paulsen observed no signs of coagulopathy during the July 7 operation. According to Paulsen, Clauser probably began experiencing DIG by the evening of July 7 when his platelet level dropped to 52,000.\nThe Department called physician Max D. Hammer, a general and vascular surgeon, to testify. Hammer testified that he has performed several laparoscopic procedures, including splenectomies and cholecys-tectomies. He estimated that he has performed less than five ventral hernia repairs laparoscopically. In addition, Hammer testified that he has never performed a laparoscopic operation on a patient with cirrhosis or portal hypertension.\nIn Hammer\u2019s opinion, Paulsen\u2019s decision to repair Clauser\u2019s ventral hernia laparoscopically was careless. Hammer observed that, although a ventral hernia should normally be repaired, the risk presented by laparoscopic repair was \u201cexorbitant\u201d in view of Clauser\u2019s cirrhosis, portal hypertension, and the reduction in intraperitoneal space resulting from Clauser\u2019s prior surgeries. Hammer also testified that Paulsen should have ordered blood clotting assays prior to performing the surgery. Hammer further testified that he probably would not have reviewed the records related to Clauser\u2019s 1991 pancreatitis and peritonitis.\nOn cross-examination, Hammer testified that converting a lapa-roscopy to a laparotomy in order to control hemorrhaging is within the standard of care. Moreover, Hammer agreed that laparoscopy has a number of advantages over the laparotomy. Specifically, Hammer admitted that it is easier to identify secondary hernias with laparos-copy, that a patient generally experiences less postoperative discomfort, and the patient can usually return to work faster. In addition, although he estimated the recurrence rate for ventral hernias is 10%, he agreed that the rate increases in obese patients and that Clauser was obese or close to obese. Hammer also testified that DIG can be triggered by a laparotomy, as well as a laparoscopy.\nThe Department called physician Andrew Gorchynsky to testify. Gorchynsky testified that he is familiar with and has performed a number of laparoscopic operations. Although he has repaired ventral hernias, he has never repaired a ventral hernia laparoscopically.\nGorchynsky opined that Paulsen had committed \u201cgross negligence\u201d by performing a laparoscopy on Clauser. In particular, Paulsen \u201cinadequately assessed [Clauser] preoperatively\u201d and Clauser\u2019s condition contraindicated laparoscopy as a method to repair the ventral hernia. With respect to Clauser\u2019s preoperative condition, Gorchynsky opined that a laparoscopy should not have been performed in view of Clauser\u2019s portal hypertension, the extensive prior surgery in the peritoneal area, and the history of inflammation (the 1991 pancreatitis and peritonitis).\nGorchynsky testified that a laparotomy would not have required Paulsen to dissect the peritoneum away from the abdominal wall. As a result, Paulsen would not have violated the blood vessels in the peritoneum and adjacent structures if he had performed a laparotomy, rather than a laparoscopy.\nDr. Thom E. Lobe testified on behalf of Paulsen. Lobe testified that he teaches laparoscopic techniques and is familiar with the national standard of care for laparoscopic surgery. Lobe opined that Paulsen\u2019s decision to perform a laparoscopy was not a deviation from the standard of care. In particular, Lobe asserted that cirrhosis, portal hypertension, varices, and adhesions were not contraindications to laparoscopic surgery in 1993.\nLobe testified he would have ordered preoperative blood clotting assays, but Paulsen\u2019s failure to do so had no effect on Clauser\u2019s \u201coutcome.\u201d Lobe found no evidence of coagulopathy in the records of the July 6 or July 7 operations. Lobe explained that the internal bleeding that occurred during the July 6 operation was \u201cmechanical\u201d bleeding, or bleeding from severed or punctured blood vessels, rather than coagulopathy. Moreover, Clauser\u2019s preoperative blood screen showed that his platelet count was normal. Clauser only developed DIG after the July 7 surgery, either that evening or the next day.\nLobe testified he would not have reviewed the records of Clauser\u2019s 1991 treatment for pancreatitis and peritonitis prior to performing a laparoscopy. According to Lobe, such a review was unnecessary because the 1991 surgery related to the pancreas, an organ not directly involved in the 1993 hernia repair.\nDr. Leonard Schultz also testified on Paulsen\u2019s behalf. Schultz testified that he is familiar with the national standard of care for lapa-roscopic surgery, having trained approximately 3,000 surgeons in lapa-roscopic procedures, including the repair of ventral hernias.\nSchultz opined that Paulsen did not deviate from the standard of care by performing a laparoscopy. Schultz testified that Clauser\u2019s internal hemorrhaging was a complication arising from the necessity of dissecting the peritoneum away from the abdominal wall, a procedure which is a necessary part of a laparotomy, as well as a laparos-copy. Schultz concluded that Clauser did not suffer any complication specific to laparoscopy.\nSchultz further testified that Clauser\u2019s condition did not contraindicate laparoscopic repair of his ventral hernia. In addition, Schultz testified that Paulsen did not deviate from the standard of care when he elected not to order preoperative blood clotting assays. According to Schultz, the assays were unnecessary in view of Clauser\u2019s platelet count and the absence of any visible manifestation of portal hypertension.\nThe Department\u2019s hearing officer concluded that Paulsen had committed gross negligence in his practice of medicine by failing to review the records of Clauser\u2019s 1991 treatment for pancreatitis and peritonitis and by choosing to perform a laparoscopy, rather than a laparotomy, when a laparotomy would have avoided \u201cthe problem area.\u201d The hearing officer recommended that Paulsen\u2019s license to practice medicine be placed on probation for one year and that Paulsen complete 25 hours of CME. The Illinois State Medical Disciplinary Board (the Board) adopted the hearing officer\u2019s findings of fact and conclusions of law, but recommended that the Director of the Department (the Director) place Paulsen\u2019s license on probation for two years and require him to complete 50 hours of CME. The Director followed the Board\u2019s recommendation.\nPursuant to the Administrative Review Law (735 ILCS 5/3 \u2014 101 et seq. (West 1998)), Paulsen filed a complaint in the circuit court seeking judicial review of the Department\u2019s decision. The circuit court affirmed the Department\u2019s decision, ruling that the decision was not contrary to the manifest weight of the evidence.\nOn appeal, Paulsen contends that the Department\u2019s decision is arbitrary and capricious and against the manifest weight of the evidence.\nJudicial review of an administrative decision extends to all questions of law and fact presented by the administrative record. Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 606 N.E.2d 1111 (1992). On administrative review, it is not the court\u2019s function to reweigh the evidence or make an independent determination of the facts. Abrahamson, 153 Ill. 2d 76, 606 N.E.2d 1111. Rather, the court is to ascertain whether the findings and decision of the agency are against the manifest weight of the evidence. Abraham- son, 153 Ill. 2d 76, 606 N.E.2d 1111. A decision is against the manifest weight of the evidence only if the opposite conclusion is clearly evident. Abrahamson, 153 Ill. 2d 76, 606 N.E.2d 1111.\nUnder the Medical Practice Act of 1987 (the Act) (225 ILCS 60/1 et seq. (West 1992)), the Department may take disciplinary action against a physician if the physician has committed \u201c[g]ross negligence in practice under [the] Act\u201d (225 ILCS 60/22(A)(4) (West 1992)). The Act directs that the Department, upon recommendation of the Board, adopt rules defining what constitutes gross negligence in the practice of medicine. 225 ILCS 60/22(A) (West 1992). The rules adopted by the Department define gross negligence as \u201can act or omission which is evidence of recklessness or carelessness toward[,] or disregard for[,] the safety or well-being of the patient, and which results in injury to the patient.\u201d 68 Ill. Adm. Code \u00a7 1285.240(c) (eff. June 21, 1989). The Department has the burden of proving violations of the Act by clear and convincing evidence. 68 Ill. Adm. Code \u00a7 1110.190(a) (eff. January 1, 1988).\nIn the instant case, the Department\u2019s expert witnesses testified that laparoscopy requires surgical intrusions that are unnecessary when a laparotomy is performed. The Department\u2019s experts opined that, given these surgical intrusions, laparoscopy substantially increases the risk of internal hemorrhage to patients suffering from cirrhosis and portal hypertension. In addition, the evidence demonstrated that the trauma associated with surgery can activate a latent blood coagulation disorder.\nIn light of this evidence, the Board could have rationally inferred that Paulsen acted carelessly by performing a laparoscopy on a patient suffering from cirrhosis and portal hypertension. Moreover, it was reasonable for the Board to infer that this carelessness caused John Clauser to suffer injury, namely, postoperative bleeding, trauma, and coagulopathy he would not have suffered but for the decision to perform a laparoscopy, rather than a laparotomy.\nContrary to Paulsen\u2019s assertion, the Board did not merely conclude that a laparotomy was the preferable alternative between two acceptable medical procedures. See Advincula v. United Blood Services, 176 Ill. 2d 1, 24, 678 N.E.2d 1009, 1021 (1996) (\u201c[a] difference of opinion between acceptable but alternative courses of conduct is not inconsistent with the exercise of due care\u201d). The Board determined that a laparoscopy was not an acceptable procedure in view of Clauser\u2019s condition, especially his cirrhosis and portal hypertension. Whether a particular medical procedure is within the standard of care cannot be determined in a vacuum. Rather, such a determination can only be made with reference to the individual patient\u2019s condition at the time the procedure is performed.\nPaulsen also complains that his decision not to order preoperative blood clotting assays \u201chad no effect on the outcome of the surgical procedure and was within the standard of care.\u201d Although the hearing officer found that Paulsen had \u201cfailed\u201d to order the assays in question, the hearing officer did not cite this failure as a basis for his finding of gross negligence. Accordingly, we need not address the propriety of a finding that had no discernible effect on the Board\u2019s decision.\nWe likewise find unpersuasive Paulsen\u2019s argument that the Department failed to present evidence linking laparoscopic procedures with the cause of Clauser\u2019s death. A causal link between laparoscopy and the cause of death was not part of the Department\u2019s burden of proof. The Department\u2019s burden was to show that the decision to perform a laparoscopy was reckless or careless and caused some injury to Clauser. See 68 Ill. Adm. Code \u00a7 1285.240(c) (eff. June 21, 1989). The Department satisfied the causation element of its burden by producing evidence demonstrating that the choice of performing a laparoscopy caused Clauser to suffer internal bleeding and trauma he would not have suffered had a laparotomy been performed.\nEqually unavailing is Paulsen\u2019s argument that the Department\u2019s decision should be reversed because portal hypertension is not a contraindication for laparoscopic surgery. The Department elicited expert testimony that portal hypertension is a contraindication to laparoscopic surgery. Paulsen elicited expert testimony to the contrary. The Board was not required to resolve this conflicting testimony in Paulsen\u2019s favor. Moreover, the resolution of conflicts in evidence is within the province of the trier of fact; a province not to be invaded by a court of review. Hajian v. Holy Family Hospital, 273 Ill. App. 3d 932, 652 N.E.2d 1132 (1995).\nFinally, we reject Paulsen\u2019s contention that the Department\u2019s evidence was insufficient because its expert witnesses were unfamiliar with, and failed to apply, a national standard of care in assessing Paulsen\u2019s conduct. Paulsen fails to cite any authority for the proposition that a national standard of care applies to a finding of \u201cgross negligence\u201d under the Act (225 ILCS 60/22(A)(4) (West 1992)). Furthermore, even assuming that a national standard is applicable, Paulsen fails to explain what the standard is or how it differs from the standard applied by the Department\u2019s expert witnesses. Accordingly, we hold that the Board\u2019s decision is neither arbitrary and capricious, nor contrary to the manifest weight of the evidence.\nFor the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed.\nAffirmed.\nBRESLIN and LYTTON, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE SLATER"
      }
    ],
    "attorneys": [
      "Craig L. Unrath (argued), Karen L. Kendall, and Roger R. Clayton, all of Heyl, Royster, Voelker & Allen, of Peoria, for appellant.",
      "James E. Ryan, Attorney General, of Chicago (Joel D. Bertocchi, Solicitor General, and Edmund C. Baird (argued), Assistant Attorney General, of counsel), for appellees."
    ],
    "corrections": "",
    "head_matter": "JOHN PAULSEN, Plaintiff-Appellant, v. THE DEPARTMENT OF PROFESSIONAL REGULATION et al., Defendants-Appellees.\nThird District\nNo. 3-99-0372\nOpinion filed November 1, 2000.\nCraig L. Unrath (argued), Karen L. Kendall, and Roger R. Clayton, all of Heyl, Royster, Voelker & Allen, of Peoria, for appellant.\nJames E. Ryan, Attorney General, of Chicago (Joel D. Bertocchi, Solicitor General, and Edmund C. Baird (argued), Assistant Attorney General, of counsel), for appellees."
  },
  "file_name": "0393-01",
  "first_page_order": 413,
  "last_page_order": 422
}