SECOND DIVISION

									NOVEMBER 18, 2003

No. 1-02-1342

ROBERT LANCE WILSON, 			) Appeal from the Circuit

							) Court of Cook County,	

	Plaintiff-Appellee,			) Chancery Division.

							)

     v.						)

							)

THE DEPARTMENT OF PROFESSIONAL	)

REGULATION; NIKKI M. ZOLLAR, 		) No. 00 CH 1057

former Director of the Department	)

of Professional Regulation; and 	)

LEONARD SHERMAN, former Director 	)

of the Department of Professional	)

Regulation,					) The Honorable

							) Bernetta D. Bush,

	Defendants-Appellants.		) Judge Presiding.

	JUSTICE GARCIA delivered the opinion of the court:

	In October 1998, the defendant, the Illinois Department of

Professional Regulation (Department), filed an administrative

complaint against the plaintiff, Robert Wilson, O.D., alleging

(1) gross negligence (225 ILCS 60/22(A)(4) (West 1996)) (count

I), 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, the

administrative law judge (ALJ) recommended to the Department that

Dr. Wilson's medical license be revoked for a period of five

years.  The Department implemented the ALJ's recommendation.  In July 2000, Dr. Wilson filed his complaint for administrative

review in the circuit court.  In April 2002, the circuit court

reversed and vacated the license revocation.  We affirm in part,

reverse in part the circuit court's rulings and remand to the

Department for further proceedings.

BACKGROUND1

	In mid-September 1998, Dr. Wilson, a licensed doctor of

osteopathy specializing in cardiology, acted as a consultant in

the treatment of Henry Taylor.  Taylor was suffering from

superior vena cava syndrome, a blockage of the main chamber of

the heart, due to end-stage renal disease.  

	In late September 1998, Dr. Wilson was summoned to Taylor's

bedside as Taylor began to suffocate due to a pulmonary

compression on his trachea, a complication of superior vena cava

syndrome.  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 of morphine through an intravenous (IV) line into Taylor's femoral

artery (near the groin).  Taylor continued experiencing pain. 

Dr. Wilson then injected 40 milliequivalent of undiluted

potassium chloride through the IV; Taylor died within one minute. 

	Later that day, Dr. Wilson reported his use of potassium

chloride to Dr. Michael Settecase, the medical director of

Olympia Field's Osteopathic Hospital (Hospital).  Drs. Wilson and

Settecase reported Taylor's death to the Cook County medical

examiner's office (Medical Examiner).  The Medical Examiner

conducted Taylor's autopsy, which revealed the cause of death to

be potassium chloride intoxication; the manner of death was ruled

a homicide.  The Olympia Field's police department initiated a

criminal investigation into Taylor's death; however, the Cook

County State's Attorney decided not to criminally prosecute Dr.

Wilson.

	In early October 1998, the director of the Department, Nikki

Zollar (Department Director), temporarily suspended Dr. Wilson's

medical and controlled substance licenses.  The Department then

filed an administrative complaint against Dr. Wilson seeking to

have his license suspended or revoked because of his use of

potassium chloride.  The Department's complaint charged Dr.

Wilson with gross negligence and dishonorable, unethical, and

unprofessional misconduct.  See 225 ILCS 60/22(A)(4), (A)(5)

(West 1996).  In mid-November 1999, the Department conducted a

disciplinary hearing before ALJ Phillip Howe and several panel members.  

License Suspension Hearing, Day One

	On the first day of the hearing, one of Dr. Wilson's

attorneys, Mr. Zimmerman, made the following preliminary motions:

(1) to dismiss the Department's proceedings, claiming they

violated Dr. Wilson's due process rights; (2) to bar any mention

of Taylor's autopsy report since Dr. Wilson had no opportunity to

conduct an independent autopsy on Taylor's body; and (3) to have

Dr. Wilson's expert testify out of order because of a scheduling

conflict involving the expert.  The ALJ denied Mr. Zimmerman's

first two motions but granted the third.

	Dr. Wilson's expert, Dr. Bruce Waller, a cardiologist and

professor of cardiology, testified that the superior vena cava is

the main chamber of the heart through which blood that has

circulated throughout the body flows before being sent to the

lungs to be oxygenated.  After examining Taylor's premortem and

postmortem X rays, Dr. Waller concluded Taylor's superior vena

cava syndrome was the result of a blood clot totally obstructing

the superior vena cava.  The clot forced blood attempting to

return to the heart to flow into adjacent blood vessels and soft

tissue.  The transposed blood caused edema (swelling), and as a

result, Taylor's upper extremities (neck, arms, face, and eyes)

became swollen.  In Taylor's case, the accumulation of displaced

fluid intensified the swelling in his neck, causing his trachea

to compress, thus preventing air from entering his lungs, and as a consequence, Taylor began to suffocate.  

	Dr. Waller testified that notes in the physician's file made

it clear that although Taylor had signed a do-not-resuscitate

order, his treating physician asked if he wanted to be intubated. 

Taylor declined and Dr. Wilson was called.  Dr. Waller testified

that as Taylor's breathing became distressed, he was given 2

milligrams of morphine by the resident physician, 10 milligrams

of morphine by Dr. Wilson, and possibly another 10 milligrams of

morphine by Dr. Wilson.  Dr. Waller testified that according to

the file, the dopamine drip, which helps elevate blood pressure,

was turned off, and as a result, Taylor's eyes rolled back into

his head and his respiratory rate diminished.  Dr. Wilson then

administered undiluted potassium chloride.  

	Dr. Waller opined that the undiluted potassium chloride

could not have reached Taylor's heart before it stopped due to

the arterial blockage and respiratory distress Taylor was

experiencing.  Dr. Waller based his conclusion on a Norwegian

study 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.  On

cross-examination, Dr. Waller admitted there was no blockage in

the inferior vena cava, the path from the femoral artery (where

the undiluted potassium chloride was introduced by Dr. Wilson) to

the heart.  However, Dr. Waller maintained Taylor died because of

his underlying medical condition, and not because undiluted potassium chloride was administered.  

	Dr. Waller conceded potassium chloride is a dangerous and

even lethal drug; however, he maintained that 40 milliequivalent

was a reasonable amount to administer under the circumstances. 

On cross-examination Dr. Waller acknowledged he had never

personally been present in a hospital setting where 40

milliequivalent of undiluted potassium chloride was administered

to a patient.  Dr. Waller testified that generally, potassium

chloride is diluted before being administered.  Dr. Waller also

testified that the American Medical Association's (AMA) ethical

rules permit the use of potassium chloride for palliative care.2

	At this point, the Department was unable to finish its

cross-examination because of Dr. Waller's scheduling conflict. 

The following dialogue ensued with the participants agreeing to

recall Dr. Waller at a later date.

			"MR. ZIMMERMAN: Your Honor, the witness

needs to catch a plane, and as a matter of

scheduling, I don't know how you want to

handle that.

			MR. GOLDBERG: Your Honor, may I suggest

that the witness needs to get another plane.  We need to finish our cross-examination if

this witness's testimony is allowed to stand.

			THE WITNESS: I am on call at five

o'clock Indianapolis time.

			[THE ALJ]: Folks, there are two

possibilities.

			MR. ZIMMERMAN: We can recall him.

			[THE ALJ]: Folks, there are two

possibilities.  Either we continue today and

recess and the doctor can reschedule whatever

he has to do.  From his previous statements

and [the way] he's looking at me right now, I

can tell he's thinking that's impossible,

that's like moving the world, I can't do it.

			The other possibility is that he comes

back at another time.  And the respondent got

two hours and 45 minutes worth of time [for]

direct exam[ination], and so therefore, the

Department would get two hours and 45 minutes

for cross-exam[ination].  It's now five after

two, and my notes say we started the actual

questioning at 1:23.  So if we stop now, we

[are] at 2:05, then we'll just have to

schedule 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 at

another time.  Do you have any time that's

convenient 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 called

Dr. Wilson as an adverse witness.  Dr. Wilson admitted he

administered 10 milligrams of morphine to Taylor and may have

also given Taylor 10 more milligrams of morphine.  Dr. Wilson

administered the morphine through Taylor's femoral artery in

order to quickly circulate it.  In explaining his use of the

femoral artery, Dr. Wilson explained, "[Taylor] was clotted up

from 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 fast

enough to ease Taylor's pain and instructed a nurse to obtain

undiluted potassium chloride although (1) he had never personally

used undiluted potassium chloride on a dying patient, and (2) he

had never seen undiluted potassium chloride administered to a dying patient.  Dr. Wilson believed administering potassium

chloride was proper palliative care because it would render the

patient unconscious and relieve pain.

	Dr. Wilson believed Taylor died of asphyxiation because at

the time he was administering the potassium chloride, Taylor's

trachea collapsed and he was not getting enough oxygen.  Dr.

Wilson based his assertion that Taylor died of asphyxiation on

his observations that (1) Taylor's airway had collapsed and he

was at the point of dying when the potassium chloride was

administered, and (2) Taylor was dead within one minute of the

potassium chloride being administered.   

License Suspension Hearing, Day Two

	Dr. Don Hollandsworth, a staff physician at the Hospital and

Taylor's treating physician, testified for the Department that

the use of morphine is ethically appropriate palliative care. 

Dr. Hollandsworth testified he would not use undiluted potassium

chloride 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 undiluted

potassium chloride or seen it used in the manner Dr. Wilson used

it.  Later a panel member asked Dr. Settecase the following

question, "Doctor, if you know, is potassium chloride the drug

that's used for lethal injection[?]"  In response to the

question, Dr. Settecase testified he believed that potassium

chloride was used by the Illinois Department of Corrections for lethal injections.  Dr. Wilson's attorneys objected to this line

of 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 recessed

for lunch.  

	Although neither Dr. Wilson nor his attorneys returned to

the hearing room after lunch, the Department continued to present

evidence.  Dr. Mark Siegler, an expert in clinical medical

ethics, testified that potassium chloride was an extremely

dangerous drug and if given in an undiluted form, could cause the

heart to stop.  Dr. Siegler testified:

"[T]he idea of potassium being an extremely

dangerous drug, extremely dangerous chemical,

is well understood; and the fact that nobody,

in my experience, has ever injected 40

milliequivalent of potassium directly into a

human being, that I have ever witness[ed] or

that I have ever done, makes me think that

this is a drug that is understood to have the

likelihood, given quickly enough and [in] a

high enough dose as 40 milliequivalent

injected as a bolus, to stop the heart."      

	Dr. Siegler also testified that the Norwegian medical study

relied on by Dr. Waller is distinguishable from the facts

surrounding Taylor's death because (1) the potassium chloride used in the Norwegian study was diluted, and in this case, Dr.

Wilson administered undiluted potassium chloride; and (2) the

potassium chloride used in the Norwegian study was gradually

circulated through the patients' bodies; however, in Taylor's

case, Dr. Wilson administered undiluted potassium chloride

through an IV directly to the heart by way of the femoral artery. 

Dr. Siegler speculated the potassium chloride would have reached

Taylor's heart within 30 seconds to one minute after it was

administered.  Dr. Siegler testified his estimation was

corroborated by Dr. Wilson's own testimony regarding his

observation that Taylor died within one minute of the potassium

chloride being administered.  

	Dr. Siegler's testimony asserted morphine was effective for

palliative care because it decreased hunger and pain, reduced

respiration, and induced sleep.  Dr. Siegler also stated that

since potassium chloride is more likely than morphine to cause

asystolia (heart stoppage) and death, it is not ethically

acceptable under the AMA ethical rules governing palliative care. 

Dr. Siegler concluded in his testimony that Dr. Wilson's conduct

was reckless, disregarded Taylor's well being, and violated the

ethical standards of the medical profession. 

	Emiliana Durante, the nurse attending Taylor, testified

morphine was available in the critical care unit where Taylor was

treated.  However, potassium chloride was only available in the

intensive care unit.  Durante retrieved potassium chloride from the intensive care unit at Dr. Wilson's request.  Further,

although Durante had been a nurse since 1977, she had never seen

potassium chloride administered in an undiluted form.  With her

testimony, 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 not

present.  The ALJ told Mr. Zimmerman that the Department had

rested and invited him to present more of his case.  Instead, Mr.

Zimmerman requested the Department's proceedings be stayed

pending the outcome of Dr. Wilson's motion in the federal court

to enjoin the Department's administrative proceedings.  Mr.

Zimmerman also informed the ALJ that his client would not

participate in the administrative proceedings unless the federal

court abstained from enjoining the hearing.  The ALJ denied the

motion because (1) numerous continuances had been granted to Dr.

Wilson, (2) Dr. Wilson's disruptive conduct led to his voluntary

absence from the hearing, and (3) procedural mechanisms were

available for reopening the case.  Mr. Zimmerman then left the

hearing room, the Department presented its closing argument, and

the ALJ announced, "we will close the hearing."

	The federal court refused to enjoin the administrative

proceedings, and in late December 1999, Mr. Zimmerman sought to

reopen proceedings in order to (1) continue Dr. Waller's cross-

examination and (2) present redirect testimony of Dr. Waller because Mr. Zimmerman believed the Department had reintroduced a

charge that Dr. Wilson engaged in euthanasia.  The Department

argued that only Dr. Waller's cross-examination was cut short

and, thus, only the Department was prejudiced by the unfinished

testimony.  The ALJ agreed with the Department and Dr. Wilson's

motion to reopen the proceedings was denied. 

	In March 2000, the ALJ issued his findings after considering

the testimony, medical records, medical studies, and Taylor's

autopsy report.  The ALJ concluded that Dr. Wilson committed

gross negligence and acted dishonorably and unprofessionally in

injecting 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 and

not credible.  The ALJ recommended Dr. Wilson's professional

license be revoked for a minimum of five years and reinstatement

be 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 June

2000, the Department's Director adopted the Disciplinary Board's

findings.3

	In July 2000, Dr. Wilson filed his complaint for

administrative review in the circuit court, arguing: (1) the

Department Director's decision was against the manifest weight of

the evidence; (2) the ALJ had abused its discretion in refusing

to reopen the proceedings to continue Dr. Waller's testimony; and

(3) the ALJ committed reversible error in not barring Taylor's

autopsy report.  

	In April 2002, the circuit court stated:

"In reviewing the standard in which I would

look at this case, the question is whether I

would follow the standard of administrative

review which would state that if there is

anything in the record to support the

agency's decision, I was duty bound to affirm

that decision, or if I would view this as [a]

matter for de novo review.  Given the natures, the issues in this case, the

questions of law, whether there was a breach

of due process procedures, [this] court

believes that the review that it must utilize

in this case is the de novo [standard of] review because there are questions of law

that must be determined, rather than the

lesser standard of if there is anything that

manifests the evidence to support the agency's decision."

In reviewing the Department Director's decision de novo, the circuit court reversed and vacated the decision to revoke Dr.

Wilson's medical license.  The circuit court did not find the

Department Director's revocation of Dr. Wilson's medical license

against the manifest weight of the evidence; instead, the circuit

court determined (1) the ALJ's denial of Dr. Wilson's request to

bar the autopsy report was reversible error, and (2) the ALJ's

refusal to reopen the proceedings and allow Dr. Wilson to recall

Dr. Waller violated Dr. Wilson's right to due process.  Regarding

the autopsy report, the circuit court stated, "[Dr. Wilson] did

ask that the evidence of the autopsy be barred because [Dr.

Wilson] did not have an opportunity to review the body.  I

believe that was a proper motion, and that motion should have

been granted.  And I believe that, in addition to the denial of

the expert witness, constituted reversible error."

ANALYSIS

	The parties have asked us to decide whether the ALJ abused

his discretion when he (1) admitted Taylor's autopsy report into

evidence and (2) refused to reopen the administrative hearing

proceedings to allow Dr. Waller to be reexamined. 

	Generally, this court reviews the final decision of an

administrative agency and not the decision of the circuit court. 

Gounaris v. City of Chicago, 321 Ill. App. 3d 487, 491, 747 N.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 license

revocation based on certain legal grounds, we begin our review of

the Department Director's decision with the basis for the circuit

court's reversal to determine whether its reversal is founded in

law.  See, generally, Ikpoh v. Zollar, 321 Ill. App. 3d 41, 746 N.E.2d 776 (2001) (circuit court upheld in part adminstrativeadministrative

agency's decision and remanded for further proceedings; on appeal

circuit court order found not final and appealable.)  If so, we should affirm; if not, we may reverse.	

I. Taylor's Autopsy Report and Examination of Dr. Waller4   	

	Agencies have broad discretion in conducting administrative

hearings.  Sheehan v. Board of Fire & Police Commissioners, 158 Ill. App. 3d 275, 286, 509 N.E.2d 467 (1987).  However, "a

license to practice medicine is a 'property right,' within the meaning 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 process

rights of fairness and impartiality must be respected. 

Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 92-93, 606 N.E.2d 1111 (1992).      

	The circuit court in this case found "a question of law" in

the issues presented by this case as "whether there was a breach of due process procedures" in the ALJ's denial of Dr. Wilson's

(1) motion in limine to exclude the autopsy report and (2) motion to reopen proceedings and recall Dr. Waller.  The circuit court

used a de novo standard of review in its analysis of the issues.  In the context of appellate review of an administrative agency's

decision, a de novo standard of review is limited to "interpretation of a statute."  Cole v. Department of Public Health, 329 Ill. App. 3d 261, 264, 767 N.E.2d 909 (2002).  Therefore, the circuit court's use of a de novo standard in this case was error.  An administrative agency's decision regarding

the conduct of its hearing and the introduction of evidence is

properly governed by an abuse of discretion standard and subject

to reversal only if there is demonstrable prejudice to the party. 

See Bickham v. Selcke, 216 Ill. App. 3d 453, 459-60, 576 N.E.2d 975 (1991). 

A. Taylor's Autopsy Report 

	The Department argues that the circuit court erred in finding reversible error in the ALJ's decision to allow the

Medical Examiner's autopsy report into evidence.  Dr. Wilson

argues the ALJ did err in admitting the results of Taylor's

autopsy into evidence because Dr. Wilson was not able to conduct

an autopsy independent of the Medical Examiner.  The circuit

court stated that, "while [Dr. Wilson] didn't subpoena the

parties or ask to bring [the parties] in," Dr. Wilson's motion to

bar the autopsy evidence was proper and should have been granted. 

We agree with the Department that the circuit court was incorrect

as a matter of law.     	

	Following Taylor's death, the Medical Examiner conducted an

autopsy that revealed the cause of death as potassium chloride

intoxication.  Taylor's body was then released to his family. 

Dr. Wilson had no right to conduct an independent autopsy on the

body of Taylor without the explicit permission of Taylor's next

of 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's

remains in order to make an appropriate disposition thereof). 

Therefore, permission to independently autopsy Taylor's body did

not 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 the introduction of Taylor's autopsy report, Dr. Wilson never sought

an independent autopsy.  He is now seeking to use his inaction as a sword to strike down the Department's evidence.  Moreover, no

suggestion was made that the autopsy report was erroneous,

faulty, or not reliable.  Absent such a showing, there is no

basis to exclude the report.  The records of a Medical Examiner

will be received as competent evidence in any criminal or civil

action.  See Heitz v. Hogan, 134 Ill. App. 3d 352, 357, 480 N.E.2d 185 (1985); 725 ILCS 5/115-5.1 (West 1996) ("In any civil

or criminal action the records of the coroner's medical or

laboratory examiner summarizing and detailing the performance of

his or her official duties in performing medical examinations

upon deceased persons *** shall be received as competent evidence

in any court of this State").  Because Dr. Wilson never

challenged any findings in the autopsy report, there was no basis

to challenge the use of the Medical Examiner's death certificate

as competent evidence.  Therefore, the admission of the autopsy

report 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), and People v. Dodsworth, 60 Ill. App. 3d 207, 376 N.E.2d 449 (1978); however, those cases are readily distinguishable.  Both involved

criminal defendants charged with controlled-substance-related

offenses that sought to bolster their defenses by testing

substances the State identified as illegal.  Dr. Wilson's

reliance on criminal law standards regarding the destruction of

evidence is misplaced.  Although due process rights are present in both civil and criminal cases, even criminal due process,

which affords greater protection, does not mandate "an

undifferentiated and absolute duty to retain and to preserve all

material 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 and

denial of Dr. Wilson's motion in limine to exclude it were evidentiary issues.  An administrative agency's decision

regarding the admission of evidence is discretionary and should

be 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 a

Medical Examiner's inquest sufficient for evidentiary purposes. 

See 725 ILCS 5/115-5.1 (West 1996).  Based on the presumptive

admissibility of the autopsy report and the absence of any

substantive challenge to the contents of the report, we reverse

the circuit court and find that the ALJ's decision to allow the

autopsy 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 proceedings

and recall Dr. Waller.  The Department argues the ALJ did not

abuse his discretion in refusing to give Dr. Wilson the

opportunity to recall Dr. Waller because (1) Dr. Wilson refused

to participate in the administrative proceedings, (2) Dr. Wilson was not diligent in preserving his rights, and (3) there was no

prejudice.  Dr. Wilson argues the ALJ's denial of his motion to

reopen the proceedings violated his due process rights.  

	The circuit court found the ALJ's denial of Dr. Wilson's

motion to reopen the proceedings and recall Dr. Waller was

reversible error.  Although the circuit court used an incorrect

standard of review in its analysis of this issue, we find the ALJ

did abuse its discretion in failing to grant Dr. Wilson's motion. 

See Bickham, 216 Ill. App. 3d at 459-60 (an administrative agency's decision regarding the conduct of a hearing is governed

by an abuse of discretion standard).  

	Although we review the ALJ's denial of Dr. Wilson's motion

to reopen with great deference (People v. Coleman, 183 Ill.2d 366, 387, 701 N.E.2d 1063 (1998)), the revocation of a professional license carries with it dire consequences (Smith, 412 Ill. at 344).  "In a proceeding so serious, due process of

law requires a definite charge, adequate notice, and a full, fair

and impartial hearing."  Smith, 412 Ill. at 344.  Therefore, under the circumstances of this case, justice demanded Dr. Wilson

be 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 the

administrative hearing, his decision to walk out of the

proceeding did not abridge his right to a full opportunity to present his case.  Moreover, although the Department did not

pursue its right to a complete cross-examination of Dr. Waller,

Dr. Wilson's right to redirect his expert witness is independent

of the State's decision whether or not to continue with its

cross-examination.  See Six-Brothers King Drive Supermarket, Inc. v. Department of Revenue, 192 Ill. App. 3d 976, 983-84, 549 N.E.2d 586 (1989) ("[b]asic notions of fair play require that

parties have an opportunity to cross-examine, explain or refute

facts which form the basis for an administrative agency's

adjudication").  

	Dr. Waller's testimony ended in the midst of the

Department's cross-examination.  The ALJ, the Department, and Dr.

Wilson's attorneys agreed Dr. Waller would be recalled at a later date.  At the time of the agreement, Dr. Waller made it clear he was not available until after November 18, the third and final day of the hearing.  Therefore, Dr. Waller could have returned to

testify at the hearing as early as November 19.  Such a short

delay would have presented no prejudice to the Department but

would have allowed Dr. Wilson a full opportunity to present his

case, as justice requires.   

	"[D]espite the added expense and inconvenience rescheduling

the hearing might have caused [the Department] *** the reason[s]

for the continuance [were] legitimate; granting it was required

to meet the ends of justice."  Ullmen v. Department of Registration & Education, 67 Ill. App. 3d 519, 523, 385 N.E.2d 58 (1978).  In the first instance, Dr. Wilson was not able to

testify until after November 18, the date Dr. Wilson was scheduled to continue with his defense.  Further, because Dr.

Wilson called Dr. Waller to testify at the beginning of the

administrative hearing, Dr. Waller was unable to dispute the

testimony of the Department's experts regarding whether or not

undiluted potassium chloride was a proper palliative agent. 

Moreover, in its brief to this court the Department admits, "the

question of ethics and professional responsibility in caring for

dying patients was a matter for the experts: [Drs.] Waller and

Siegler."  Significantly, the ALJ found the testimony of the

Department's expert, Dr. Siegler, more convincing than the

testimony of Dr. Wilson's expert, Dr. Waller, although Dr.

Waller's testimony was incomplete.         

	Although we agree that the ALJ was correct in not delaying

the Department's proceedings against Dr. Wilson while he pursued

an action in federal court, there is a difference between holding

proceedings in abeyance and limiting the evidence that may be

presented for consideration.  "A continuance required by the ends

of justice should not be denied, and a refusal to grant such a

continuance has been held to be an abuse of discretion warranting

reversal."  Ullmen, 67 Ill. App. 3d at 522, citing Brown v. Air Pollution Control Board, 37 Ill. 2d 450, 454-55, 377 N.E.2d 1297 (1967).  An administrative agency possesses broad discretion in

determining 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 be

exercised judiciously, and not arbitrarily' so as to satisfy the

ends of justice."  Bickham, 216 Ill. App. 3d at 459, quoting Brown, 37 Ill. 2d at 454.  "Under the special circumstances of this case, it is our opinion that the ends of justice and due

process 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, we

find that in considering Dr. Wilson's motion to reopen the

proceedings so that he could present a complete defense by

calling his expert witness in redirect and possible rebuttal to

the 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 his

expert, Dr. Waller, the matter should have been remanded by the

circuit court.  See Brown, 37 Ill. 2d at 454-57 (ordering remand where agency erred in not granting a continuance); see also

Ullmen, 67 Ill. App. 3d at 522-23. 

CONCLUSION

	The judgment of the circuit court is affirmed as to its

finding that the ALJ abused his discretion in denying Dr.

Wilson's motion to reopen the proceedings, reversed as to its

finding that the ALJ abused his discretion in allowing the Medical Examiner's autopsy report into evidence.  The circuit

court's order vacating the license revocation is itself vacated

and this matter is remanded to the Department with directions to

allow Dr. Wilson a reasonable continuance to recall his expert

witness.

	Affirmed in part, reversed in part and remanded for further

proceedings before the Department.

	CAHILL and BURKE, JJ., concur.