Illinois Medical Malpractice Blog

In Matarese v. Buka, No. 1-06-2276 (10-31-08) the fifth division appellate court found that because the 2006 version of IPI 150.01, defining professional standard of care, could cause jury confusion by leading jury to believe that it can disregard expert testimony and substitute its own definition of reasonable care, the trial court properly gave instruction to the jury based on 2005 version of IPI in plaintiff's trial for medical malpractice against ophthalmologist for alleged negligent cataract surgery. This case will have an impact on jury instructions in medical malpractice cases.

Thede v. Kapas, No. 3-07-0757 (10/21/08) concluded that there is no issue of material fact; and that defendant, physician, is entitled to summary judgment dismissing plaintiff's complaint based on the one year statute of limitations then in existence for physicians employed by municipal corporations. Physician has unambiguous employment agreement with hospital, wherein hospital had the right to direct defendant, physician, notwithstanding release, which hospital had plaintiff sign, stating that physician was independent contractor. Further, release is not sufficient reason for refusal to apply limitations period based on equitable principles. This medical malpractice decision will have a great affect on statute of limitations for employees.

Last year, the American Association for Justice (AAJ) launched its Fight for Justice Communications Campaign. The goal of the campaign is to forcefully make the AAJ case to the public and tell the true story about the civil justice system and tort reform. Sign up for the AAJ Rapid Response Team and you will receive up-to-the-minute alerts.

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The American Association for Justice (AAJ) will host its Winter Convention in New Orleans from February 7-11, 2009. This is a great opportunity for medical malpractice attorneys, personal injury attorneys, and nursing home abuse attorneys to network and participate in business group practice meetings.

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The American Association for Justice (AAJ) will host a trial strategy seminar entitled “Weekend with the Stars: Justice Counts Seminar” for medical malpractice attorneys. The seminar will take place from December 13-14, 2008 in New York City. Highlights include insights into trial strategy and approaches to cases that are proven to work.

For more information.

The recent decision in Lasalle Bank, N.A. v. C/HCA Development, No. 1-06-1859 (8/5/08) ruled that although the trial court erred when it substituted the phrase "reasonably well qualified" for "reasonably careful" in the 2006 version of IPI 150.01 in medical malpractice trial, it was not reversible error; because instruction actually given was also an accurate statement of the law. Further the trial court's refusal to allow deposition testimony of defendant as substantive evidence is not reversible error because of the invited error doctrine; the plaintiff failed to ask the trial court to reverse its ruling on motion in limine before attempting to introduce evidence that plaintiff belonged to HMO; and it did not abuse its discretion when it refused to admit evidence of financial incentive not to refer to a cardiologist because referral was, in fact, made. The higher court affirmed the trial court’s medical malpractice suit decision.

In Downey v. Dunnington, the appellate court affirmed the trial court's holding.
The court reasoned that, although the trial court erred when it refused to allow plaintiff's attorney to cross examine defendant's expert with regards to authoritative article and overruled objection to admission of testimony that defendant, the surgeon's father is a member of the clergy, it was harmless error in plaintiff's trial for medical malpractice alleging that she received prophylactic double mastectomy without genetic testing to confirm predisposition to breast cancer. Further, it was not error for trial court to refuse to allow authoritative treatises to be published to the jury; or to allow defense to use plaintiff's deposition to impeach her. In addition, verdict in favor of defendants is not against the manifest weight of the evidence, as jury was free to believe defense expert and not plaintiff's.

In Johnson v. Loyola University Medical Center, No. 1-06-3222 the 4th division, Justice Murphy reversed the trial court, holding that the trial court erred when it allowed defendant's motion for judgment NOV after verdict in favor of plaintiff as result of a trial for medical malpractice. The issue in the case was a claim that plaintiff's decedent went into cardiac arrest after being placed in hospital bed without telemetry monitoring. Even though he was not able to testify with regards to efficacy of cardiac catheterization and bypass surgery, pulmonary and emergency care physician expert that continuous telemetry monitoring would have increased potential for successful intervention and reduced risk of brain damage from lack of oxygen of plaintiff's decedent, is sufficient to meet plaintiff's burden of proof on proximate cause.

In Jones v. Rallos, No. 1-04-2979 Justice Quinn affirmed the trial court's holding after reconsideration by order of the Illinois Supreme Court. The court reasoned that the trial court did not err when it denied defendant's motion for directed verdict and motion for a new trial in medical malpractice claim. The plaintiff alleged that he suffered damages and changed his lifestyle as result of his doctor informing him that he tested positive for HIV, when the test was inconclusive and the doctor failed to order proper follow up testing. Further, the doctor presented insufficient evidence that she made a referral to plaintiff to withstand directed verdict on her affirmative defense of mitigation. Additionally, the trial court's evidentiary rulings are not an abuse of discretion.

In Ruffin v. Boler, No. 1-06-3437 (June 25, 2008), the 1st div. (Garcia) affirmed, holding that the trial court erred when it granted new trial after jury returned verdict in favor of defendant. The subject matter of the trial was obstetrician malpractice. The court held that any error associated with purported improper cross examination of the plaintiff's expert was corrected by trial court in its admonition to jury; and trial court properly allowed testimony of defense biomechanical engineering expert with regards to probability that natural force of labor, rather than excessive use of lateral traction caused damage to child's shoulder during delivery.

In Thornton v. Garcini, M. D., No. 3-07-0326 (May 16, 2008) Will County (CARTER), the Third District affirmed the trial court's holding that the Plaintiff was not required to present any expert testimony with regards to her claim for negligent infliction of emotional distress as result of defendant, doctor, leaving her to remain in delivery room with dead infant half delivered for more than an hour.

Further, because single recovery rule was not raised in trial court, and because there was no testimony with regards to how the settlement between plaintiff and nurses and hospital for medical malpractice was apportioned, defendant, doctor, is not entitled to any set off from prior settlement.

In Mercado v. Mount Sinai Hospital Medical Center of Chicago, No. 1-06-1825 (May 27, 2008) 1st div. (Cahill), the Court certified a question answered and held that the plaintiff's complaint for wrongful death of her fetus daughter is not barred by the provisions of Section 2.2 of Wrongful Death Act; because complaint alleges that she agreed to terminate the pregnancy based on misdiagnosis that she had an ectopic pregnancy, which was not viable, when she actually had a viable uterine pregnancy. Therefore, plaintiff's agreement to terminate her pregnancy does not qualify as a "requisite consent" within meaning of Act.

The 5th District in Britton v. University of Chicago Hospitals, No. 1-06-3080 (May 27, 2008) 5th div. (Tully) Affirmed. The court reasoned that Plaintiff's complaint against the hospital for injuries sustained when she pushed on a glass door that broke is subject to summary dismissal because the plaintiff did not present any evidence to show that hospital breached its duty to maintain door; or that its negligence in maintaining the door proximately caused her injuries. Since the door was not in exclusive control of defendant the doctrine of res ipsa loquitor does not apply.

The 4th District in In re: A.W., No. 4-07-0489 (April 24, 2008) Sangamon County (STEIGMANN) reversed the trial court's decision and held evidence was insufficient to prove that State followed required procedure before filing its petition for involuntary treatment of Respondent for schizo affective disorder by use of psychotropic medication; because testimony by psychiatrist that she placed written information about proposed medication, side effects and alternative treatment in Respondent's box is insufficient. Further, testimony referring to proposed medication list with dosages up to certain amounts is insufficient. In addition, order is not sufficiently specific. However, it is not error to include in petition and order the proposed administration of Cogentin, a non psychotropic side effect reducing drug.

The Illinois Appellate Court, 1st Dist. Caywood v. Gossett, No. 1-06-2458 (April 11, 2008) 6th div. (OMALLEY) Affirmed; Because plaintiff knew, or should have known, that her condition, with severe sinus infection and fistula between site of tooth extraction and her sinuses was the result of treatment provided by defendant, dentists, on or before her third surgery to correct it, it is barred by limitations period of Section 13-212 of Code of Civil Procedure. Further, the continuous course of negligent treatment exception does not apply to her circumstances; because she saw several specialists during relevant time period, some of whom told her that her tooth extraction caused her problems.