dissenting:
I respectfully dissent. This court must decide whether the findings and decision of the Department are against the manifest weight of the evidence. Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88, 606 N.E.2d 1111, 1117 (1992). This function is comparable to deciding as a matter at law whether there is competent evidence to support the judgment of a lower court. Fenyes v. State Employees’ Retirement System, 17 Ill. 2d 106, 111-12, 160 N.E.2d 810, 813 (1959). Administrative decisions must also be supported by substantial evidence. Carver v. Bond/ Fayette/ Effingham Regional Board of School Trustees, 146 Ill. 2d 347, 363, 586 N.E.2d 1273, 1280 (1992); Ballin Drugs, Inc. v. Department of Registration & Education, 166 Ill. App. 3d 520, 526, 519 N.E.2d 1151, 1156 (1988).
Dr. Caldwell was charged generally with negligence and gross negligence and specifically with prescribing controlled substances or narcotics for other than medically accepted therapeutic purposes with the intent of maintaining a person’s physical or psychological addiction or dependence. The Department’s decision is largely based on Dr. Czarnecki’s testimony, which Dr. Caldwell argues was legally insufficient to support the Department’s action in this case. The majority opinion ignores Dr. Caldwell’s argument, but the argument merits consideration.
In an ordinary civil malpractice case, the plaintiff must show that the expert is a licensed member of the school of medicine about which he or she proposes to testify. Gill v. Foster, 157 Ill. 2d 304, 316-17, 626 N.E.2d 190, 196 (1993). The plaintiff need not show that the expert also specializes in the same area of medicine as the defendant doctor. Gill, 157 Ill. 2d at 316, 626 N.E.2d at 196. However, where a defendant doctor’s criminal conviction rests on a finding that he has violated professional standards, the defendant has the right to be judged by the standards specific to his or her area of practice. People v. Albano, 216 Ill. App. 3d 247, 264-65, 576 N.E.2d 998, 1009 (1991).
This case is neither a civil malpractice case nor a criminal prosecution. The question of the standard for competency of medical expert testimony before the Department is a question of first impression.
In an ordinary civil case, where the decision merely determines which party must bear an economic loss, there are no sound reasons for favoring one party over another, and the party with the burden of persuasion must prove his or her case by a preponderance of the evidence. Bazydlo v. Volant, 164 Ill. 2d 207, 212-13, 647 N.E.2d 273, 276 (1995). In some contexts, however, constitutional or policy considerations require the higher standard of proof by clear and convincing evidence. Volant, 164 Ill. 2d at 213, 647 N.E.2d at 276.
The burden of proof in this type of case is that of clear and convincing evidence. This high standard of proof is justified by constitutional concerns. The right to pursue a profession is a property and liberty interest protected by the federal and Illinois constitutions. Collura v. Board of Police Commissioners, 113 Ill. 2d 361, 369, 498 N.E.2d 1148, 1151 (1986); see also Smith v. Department of Registration & Education, 412 Ill. 332, 340-41, 106 N.E.2d 722, 726 (1952). Indeed, the right to pursue a career in medicine is one of the "fundamental rights of citizenship.” Smith, 412 Ill. at 341, 106 N.E.2d at 726. Thus, in Albano, where the doctor’s liberty interest was at stake, the standard for competent testimony was also heightened.
In this case, the record shows that Dr. Caldwell is a general practitioner. General practice is a recognized specialty. Albano, 216 Ill. App. 3d at 264, 576 N.E.2d at 1008. The record shows that Dr. Czarnecki’s specialties are cardiology and internal medicine. Given the fundamental right at stake, I conclude that Dr. Caldwell must be judged by the standards applicable to a general practitioner, not to a cardiologist or internist. Thus, Dr. Czarnecki’s testimony cannot sustain the Department’s decision in this case.
Moreover, even if the standard for competent expert testimony was not heightened, it is undisputed that Dr. Czarnecki’s testimony was not based on an examination of Christine Barnes or a complete medical history, but on insurance claim forms, prescriptions and "some” progress notes. Dr. Czarnecki admitted that not every diagnosis is put on the insurance claim forms and that there is no standard way of writing progress notes. An expert interpretation of incomplete medical records adds little to the trier of fact’s understanding of the facts or issues. See Holston v. Sisters of the Third Order of St. Francis, 165 Ill. 2d 150, 170-71, 650 N.E.2d 985, 995 (1995). Indeed, the Department cross-examined Dr. Singleton to show the same flaws that affect Dr. Czarnecki’s testimony. Such evidence cannot be characterized as substantial.
In addition, an expert’s opinion is only as valid as the bases and reasons for the opinion. Gyllin v. College Craft Enterprises, Ltd., 260 Ill. App. 3d 707, 715, 633 N.E.2d 111, 118 (1994). In this case, Dr. Czarnecki testified that he "never said anything about individual prescriptions,” but was looking at the "totality” of the situation, which he testified was a 10-year period. Dr. Caldwell was not charged regarding a 10-year period.
The decision is also based on the finding that "Christine Barnes was a narcotic dependent person.” The Department could not have rationally decided that Dr. Caldwell intended to maintain Christine’s addiction or dependence without such a finding. Moreover, the finding underpins the decision that Dr. Caldwell was issuing prescriptions for nontherapeutic purposes.
The majority opinion states:
"Dr. Czarnecki testified that, under the circumstances, it should have been clear to plaintiff that Barnes was developing a dependency on these drugs and using them for nontherapeutic purposes.” 292 Ill. App. 3d at 464.
Even assuming arguendo that such testimony was competent, it should be noted that the Department makés no such representation in its brief. A review of the record indicates that Dr. Czarnecki’s testimony contains no such statement.
Earnest Barnes testified that he told Dr. Caldwell that Christine was addicted. Earnest Barnes is a lay witness. When lay opinions are permitted, there must be a proper foundation establishing the witness’s personal knowledge of facts that form the basis of his opinion. Hopkinson v. Chicago Transit Authority, 211 Ill. App. 3d 825, 846, 570 N.E.2d 716, 730 (1991).
The record on appeal does not disclose a basis for the lay opinion. Earnest Barnes testified that Christine occasionally appeared "tanked” on her medication and that he took her to the hospital due to an overdose. However, there is no evidence in this record linking these episodes of abuse to an addiction or dependency. The majority opinion also faults Dr. Caldwell for continuing the prescriptions after the overdose, but cites no evidence that Dr. Caldwell was informed of the episode.
In sum, the evidence in this case was neither competent nor substantial on points crucial to the Department’s decision. Although the Department may have a legally sufficient case against Dr. Caldwell, it failed to present one. Accordingly, I would reverse the decision of the circuit court.