Wilson v. Ill. Dep't of Fin. & Prof'l Regulation
| Decision Date | 25 March 2019 |
| Docket Number | No. 14 C 10521,14 C 10521 |
| Citation | 376 F.Supp.3d 849 |
| Parties | Dr. Robert Lance WILSON, D.O., Plaintiff, v. ILLINOIS DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION ; Andrew Gorchynsky ; Thomas Glasgow ; Leonard A. Sherman; Jay Stewart; the State of Illinois; Doe Defendants 1-5; Doe Defendants 6-10; Doe Defendants 11-20; and Doe Defendants 21-30, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
F. Dean Armstrong, Armstrong Law Firm, Frankfort, IL, for Plaintiff.
Sarah Hughes Newman, Michael T. Dierkes, Illinois Attorney General, Chicago, IL, for Defendants.
Plaintiff Robert Wilson, a cardiologist, has been embroiled in litigation ever since his medical license was suspended in 1998. In 2014, he filed this lawsuit, following the Circuit Court of Cook County's fourth reversal of an Illinois agency decision upholding the suspension. This court dismissed the case on statute of limitations grounds, Wilson v. Ill. Dep't of Fin. and Prof'l Regulation , No. 14 CV 10521, 2016 WL 1073072 (N.D. Ill. Mar. 18, 2016), but the Seventh Circuit reversed and remanded, concluding that the suit was timely filed. Wilson v. Ill. Dep't of Fin. and Prof'l Regulation , 871 F.3d 509, 513 (7th Cir. 2017). Now, Defendants Illinois Department of Financial and Professional Regulation ("IDFPR"), Andrew Gorchynsky, Thomas Glasgow, Leonard Sherman, and Jay Stewart move to dismiss Plaintiff's Fourth Amended Complaint [90] for failure to state a claim, FED. R. CIV. P. 12(b)(6), and for lack of subject matter jurisdiction. FED. R. CIV. P. 12(b)(1). For the reasons explained here, the motion is granted in part and denied in part without prejudice.
When reviewing a 12(b)(6) motion to dismiss, the court "must take the truth of the allegations in [the] complaint at face value." Simpson v. Brown Cty. , 860 F.3d 1001, 1009 (7th Cir. 2017). The underlying facts of this case have remained largely unchanged since the court issued its first opinion dismissing Dr. Wilson's Second Amended Complaint.1 Wilson , 2016 WL 1073072, vacated , Wilson , 871 F.3d 509.
In mid-September 1998, Henry Taylor was admitted to Olympia Fields Hospital at the age of 69. (Fourth Am. Compl. [90] ¶ 11.) Mr. Taylor suffered from superior vena cava ("SVC") syndrome and end-stage renal disease
. His condition was deteriorating, and he signed two "do not resuscitate" orders while under the care of another doctor who is not party to this suit. At approximately 8:10 on the morning of September 30, Plaintiff Dr. Wilson was called to care for Mr. Taylor. As a complication of Mr. Taylor's SVC, his windpipe was collapsing, and he had refused a breathing tube
. His death was imminent; he was struggling to breathe, gasping for air, and "flailing about" when Dr. Wilson arrived. (Id. at ¶¶ 15, 16.) At 8:16, Mr. Taylor's windpipe fully collapsed, "cutting off all oxygen." (Id. at ¶ 19.) He was, however, still fully conscious. With the do-not-resuscitate orders in place, Dr. Wilson "believed he was morally and professionally obligated ... to do everything within his power to relieve Taylor's conscious suffering as Taylor slowly went through the agonizing process of suffocating to death." (Id. at ¶ 21.) Dr. Wilson twice administered morphine. (Id. at ¶¶ 16, 20.) He then began to inject Mr. Taylor with 40 milliequivalents (m/eq) of potassium chloride, a drug that is lethal in a dose of 240 m/eq.2 (Id. at ¶ 28.) Dr. Wilson intended the selected dose to render Mr. Taylor "unconscious during the final stages of [his] process of death." (Id. ) "As Dr. Wilson began the injection, however, Taylor's heart stopped from lack of oxygen due to the natural progression of his underlying disease," and Taylor was pronounced dead at 8:25AM. (Id. at ¶ 29.) At least two other doctors were present at the time of Mr. Taylor's death. (Id. at ¶¶ 43, 45.3.)
Deputy Chief Medical Examiner Mitra Kalelkar at the Cook County Medical Examiner ("CCME") conducted an autopsy on October 1, 1998. (Id. at ¶ 38.) The autopsy was not conclusive, and Dr. Kalelkar "listed the cause of Taylor's death as uncertain ‘pending’ the return of the lab/toxicology results on Taylor's blood." (Id. ) Later that same day, before receiving the results, but after having a conversation with an unidentified person who told Dr. Kalelkar a "story" about Dr. Wilson using potassium chloride
, Dr. Kalelkar determined that Taylor's death was a homicide from potassium chloride intoxication. (Id. at ¶¶ 39, 42.) The lab results that came back on October 2 were inconsistent with that determination; the report found "that Taylor had a normal potassium level at the time of his death, which meant that the potassium chloride injection had not reached [his] heart by the time of [his] death." (Id. at ¶ 39.) Dr. Kalelkar never reviewed those lab results, however, and did not change the homicide determination. (Id. )
Following the autopsy, Dr. Kalelkar notified the Olympia Fields Police Department that Mr. Taylor's death was a homicide, and CCME released Mr. Taylor's body for cremation on October 6, foreclosing the possibility of a second-opinion autopsy. (Id. at ¶ 41.) On October 7, Dr. Kalelkar and her boss met with Dr. Andrew Gorchynsky and Thomas Glasgow of the IDFPR Department of Professional Regulation ("DPR"). Dr. Gorchynsky was the Chief Medical Coordinator for the DPR, "responsible for reviewing complaints against Illinois doctors, and for making recommendations regarding the investigation and disposition of those complaints." (Id. at ¶ 42.) Glasgow was the Chief of Medical Prosecutions at DPR.3
(Id. at ¶ 9.3.) "At this meeting, Kalelkar informed Gorchynsky and Glasgow that her conclusion as to the cause of death (potassium chloride
intoxication) and the manner of death (homicide) was not based on any scientific or medical testing on the body of Taylor, or the analysis of any lab results on Taylor's blood." (Id. at ¶ 42.) After a "cursory" review of some of Mr. Taylor's medical records, but without interviewing any witnesses, reviewing any "chart notes prepared by the other doctors who were present at the time of Taylor's death," or consulting any expert materials, Gorchynsky and Glasgow determined that they agreed with Dr. Kalelkar's homicide determination. (Id. at ¶ 43.) Dr. Wilson alleges that this is because "Gorchynsky, Glasgow, and Doe Defendants 1-5,4 were of the [incorrect] belief the potassium chloride, upon injection, would immediately cause Taylor's heart to stop." (Id. at ¶ 45.2.) Had they conducted an adequate investigation, Gorchynsky and Glasgow would have learned, among other things, that Mr. Taylor's heart stopped just "as the [potassium chloride injection] was being given" (id. at ¶ 45.3); that the 40 m/eq dose was non-fatal (id. at ¶ 45.1); and that Mr. Taylor's potassium level was normal at the time he died. (Id. at ¶ 45.5.)
Based on their conclusion that Dr. Wilson intended to kill Mr. Taylor, Gorchynsky, Glasgow, and Doe Defendants 1-5 "decided that the [DPR] should file a Complaint against Dr. Wilson seeking the revocation of [his] medical license" on October 9, 1998 "for his alleged intent to kill his patient." (Id. at ¶¶ 48, 49.) They also sought "an ex parte summary suspension of Dr. Wilson's medical license," filing a Petition for Temporary Suspension5 with the Director of the IDFPR, Nikki Zollar. (Id. at ¶¶ 49, 50.) Attached to the petition was an affidavit from Dr. Gorchynsky representing that he had "reviewed medical records and other documents" pertaining to Mr. Taylor's treatment, and that the "above records document" that Dr. Wilson "injected Henry Taylor with Potassium Chloride for the purpose of causing Henry Taylor's death." (Id. at ¶ 50 (quoting Ex. 21 to id. ).) The Director entered an order suspending Dr. Wilson's medical license on October 9, 1998. (Id. at ¶ 51.) Mr. Wilson never had an opportunity to be heard prior to the suspension. (Id. )
After the suspension, Plaintiff alleges, "certain members of the Department discovered that the Department's charges against Dr. Wilson were totally without merit." (Id. at ¶ 54.) "[T]he Department was specifically told by one of its prosecutors ... that it couldn't prove the charges against Dr. Wilson ... [and prosecutor William McLaughlin] (whose job it was to stay in contact with the Cook County State's Attorney's Office on its investigation of Taylor's death) [informed the Department] that Taylor didn't have a chance to live." (Id. at ¶ 55.) In November 1998, the Medical Disciplinary Board ("MDB") of the IDFPR did withdraw the charge that Dr. Wilson had injected Mr. Taylor "for the purpose of causing" his death from its complaint, but it continued with Dr. Wilson's prosecution, and it left the summary suspension order in place. (Id. at ¶ 56.)
In April 1999, Dr. Wilson and his attorneys met with Glasgow and an assistant prosecutor from the Department "to discuss the progress of the license revocation proceedings." (Id. at ¶ 58.) At that meeting, Glasgow allegedly "told Dr. Wilson that he did not care about Dr. Wilson's 5th Amendment rights [to due process], that [the Department] would revoke his license to practice medicine, and ... that if [Glasgow] were the prosecuting States [sic] Attorney[,] he would have Dr. Wilson locked up and tried for murder because Dr. Wilson murdered Mr. Taylor." (Id. (modifications in original) (quoting Attorney Edward Nielsen's Affidavit, Ex. 26 to id. ).) Glasgow also allegedly stated that "he would not consider lifting the suspension on Dr. Wilson's license because Dr. Wilson is a danger to society." (Fourth Am. Compl. [90] ¶ 58 (quoting Attorney Denise Nalley's Affidavit, Ex. 27 to id. ).) By the end of September 1999, the Cook County State's Attorney's Office had determined that it would not press charges against Dr. Wilson.6 (Fourth Am. Compl. [90] ¶ 59.) At that time, Dr. Wilson's medical license remained suspended under the summary suspension...
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