Illinois Medical Malpractice Blog

Long v. Elborno, No. 1-08-1733 (1-21-10) answered the question of whether the refilling of an action against physician was not continuation of previous action, but created entirely new action, thus law of the case doctrine inapplicable. Court had previously found Plaintiff failed to exercise reasonable diligence in serving Hospital; thus, collateral estoppel applies to prevent Plaintiff from asserting that she was reasonably diligent in serving physician, when her actions were identical for both parties during this time, and physician was not served for an additional four months after service on Hospital. Plaintiff cannot be given credit for time it took her to obtain Section 2-622 reviewing physician's report in considering her reasonable diligence of service. This case will impact Illinois medical malpractice law.

Martinez, v. Elias, M.D., No. 1-08-0265 (12-28-09) found that the court properly denied motion in limine to bar evidence of a financial motive to perform surgery, which the plaintiff claimed was unnecessarily performed by defendant orthopedic surgeon; it was found to be proper to permit evidence of financial motive in limited and specific manner to address issue of compliance with standard of care. The motion for new trial properly was denied, as the evidence was sufficient for the jury to have established requisite elements, including proximate cause based on testimony of plaintiff and admission of defense expert that surgery caused or contributed to pain after surgery. Remittitur for $100,000 in error, as treating physician testified that fee for necessary future surgery would be $55,000, plus one-week hospital stay and charges for radiology, anesthesiology, and physical therapy, and that testimony was sufficient to support jury's award of $100,000 for non-itemized future medical expenses. This Illinois case will impact medical malpractice law.

The landmark Illinois Supreme Court Case of Lebron, a Minor v. Gottlieb Memorial Hospital was decided on Feb. 2, 2010. The Illinois case decided that damage caps on medical malpractice case awards for noneconomic damages, such as pain and suffering, was in direct violation of the separation of powers. The Illinois Supreme Court found that the caps were an interfereance with the judicial branch’s authority to reduce verdicts. Since the noneconomic damages provision is not severable from the statute, the Court found that the entire statute is invalid. This important case is a victory for those who value patient’s rights and will have a great effect on Illinois medical malpractice law.

Cookson v. Price, No. 109321 presented the question as to whether trial court properly dismissed plaintiff's medical malpractice claim for failure to provide sufficient physician's report required under 735 ILCS 5/2-622 where plaintiff attempted to amend insufficient report with second report that had been authored by different medical professional. Trial court found that plaintiff was not seeking to amend consultation report, but was attempting to substitute wholly new report that was not timely since it had been tendered after 90-day extension of time that had previously been granted to plaintiff under section 2-622. Appellate Court, in reversing trial court, found that plaintiff could amend initial report since there was no statutory bar to substituting report by new author. This case will impact medical malpractice cases.

Martinez v. Elias, No. 1-08-0265, (12-28-09) found that the court properly denied a motion in limine to bar evidence of financial motive to perform surgery, which plaintiff claimed was unnecessarily performed by defendant orthopedic surgeon; proper to permit evidence of financial motive in limited and specific manner to address the issue of compliance with standard of care. Motion for new trial was properly denied, as evidence was sufficient for jury to have established requisite elements, including proximate cause based on testimony of plaintiff and admission of defense expert that surgery caused or contributed to pain after surgery. Remittitur for $100,000 in error, as treating physician testified that fee for necessary future surgery would be $55,000, plus one-week hospital stay and charges for radiology, anesthesiology, and physical therapy, and that testimony was sufficient to support jury's award of $100,000 for non-itemized future medical expenses. This case will have an effect on medical malpractice lawyers.

Keeple and Company v. Cardiac, Thoracic and Endovascular Therapies, No. 3-09-003 (12-16-09) affirmed that a fee-sharing provision in a contract between a medical clinic and a medical billing company violated the Medical Practice Act, and as it was an essential part of contract, the remaining provisions of the contract are not severable from the unenforceable provision. The court found that the nonsolicitation clause which prohibited the clinic from soliciting billing company's employees was thus void and unenforceable. This case will impact medical malpractice law.

Kaufmann v. Jersey Community Hospital, No. 4-08-0909 (12-8-09) affirmed that a one-year statute of limitations, rather than two-year statute should be applied to bar patient's claim against community hospital, under the Tort Immunity Act, because claims against the hospital for physician's deviant sexual act while she was sedated for examination did not arise out of patient care, but out of the physician's own desire for sexual gratification. Equitable tolling was found to be inapplicable; even though patient waited to file suit per request of State Police during their investigation, when physician was indicted several months remained when patient could have filed within one-year statute of limitations, and patient was under no legal disability. This case will have a huge impact on how the Tort Immunity Act is applied in Illinois.

Kim v. St. Elizabeth’s Hospital of the Hospital Sisters of the Third Order of St Francis, No. 5-08-0571 (10/23/09) affirmed that collateral estoppel is inapplicable where issue of whether already disclosed mental health records are admissible is distinct from issue of whether records were obtained by improper procedure, in violation of Mental Health Confidentiality Act, because that issue was not necessary for judgment in prior case. This Illinois case will impact medical malpractice law.

Thorton v. Garcini, M.D., No. 107028 (10-29-09) affirmed that expert testimony is not required to prove negligent infliction of emotional distress. Based on personal experience alone, jury could reasonably find that circumstances caused emotional distress, when plaintiff's deceased infant remained partially delivered for one hour ten minutes while plaintiff waited for defendant physician to arrive at hospital. This Illinois case will greatly impact medical malpractice law.

Walsh v. Chez, Nos. 08-1006 & 08-1522 (10/21/09) was a medical malpractice action arising out of treatment of plaintiff's autistic son. The District Court was found to have abused its discretion in dismissing plaintiffs' lawsuit after finding that reports of plaintiffs' two expert witnesses were insufficient with respect to establishing standard of care. Instant reports conformed to requirements of Rule 26(a)(2)(B) where experts opined that defendants' abrupt discontinuation of prednisone was not consistent with relevant standard of care. Moreover said reports gave defendants enough information to give them opportunity to rebut experts' opinions. Also, any flaws in experts' reports went to weight of evidence as opposed to admissibility. This seventh circuit case will greatly impact Illinois medical malpractice law.

Dienstag v. Margolis, No. 1-06-1558 (9-30-09) affirmed that the trial court properly denied motion for JNOV or new trial on jury verdict of $5.95 million (reduced to $5.45 on remittitur) for failure to diagnose breast cancer case. Defendant physician was not prejudiced by one instance in which plaintiff's retained expert referred to plaintiff's attorney, who is also a physician, as "Dr. Chessick", as it was done inadvertently, and defendant declined an offer of instruction for jury to disregard it. Conflicting expert testimony on standard of care and breach thereof is not evidence that so overwhelmingly favors defendant that no contrary verdict could stand. Defendant waived issue o f improper statements during closing arguments by not then objecting to counsel's personal attacks on defendant. This Illinois case will impact medical malpractice cases.

Cummings v. Jha, No. 5-08-0182 (9-25-09) affirmed that a breach of standard of care was shown where experts testified that a reasonably competent surgeon would have investigated for surgical complication, and need to determine, in a patient with recent gallbladder surgery, whether there was biloma or bile leak, when patient wrote, on office intake form, that he was having chest pain which he related to his gallbladder surgery. Proximate cause was established via an expert and treating physicians' testimony that if certain tests had been done and biloma detected prior to rupture, it would have been easily treatable. Plaintiff was entitled to recover value of time lost from work, even though employer allowed sick time to be used for absence. This Illinois case will impact medical malpractice law.

Tedrick v. Community Resource Center, Nos. 104861 & 104876 (9-24-09) revered a case stating that the nonpatient status of decedent, who was killed by husband with history of psychiatric problems, meant that defendant mental health providers had no duty to decedent, and had not voluntarily undertaken any duty; and husband and wife's relationship did not constitute "special relationship" which could transfer defendants' duties of care from husband to decedent. This case will impact medical malpractice cases in Illinois.

Thomas v. Koe, No. 4-08-0705 (9-21-09) stated that the trial court erred in granting motion in limine to exclude reference to IDFPR investigation related to care in question, where defendant dentist refused to allow investigator in his office after arriving unannounced to inspect his sterilization equipment. Under "same-part-of-the-body" rule, trial court should have barred testimony that plaintiff's tonsillitis, use of alcohol, and diabetes could have contributed to plaintiff's severe infection which developed following tooth extraction. Finding of direct criminal contempt proper where plaintiff's counsel violated in limine order barring reference to IDFPR investigation; counsel's strong belief that ruling was in error irrelevant. This case will impact dental malpractice cases.

Smith v. Pavlovich, No. 5-08-0256 (9-10-09) affirmed that the granting of motion in limine and directed verdicts as to Defendant advanced practice nurse were proper; the pediatrician was not qualified to testify as to standard of care for nurse as he was not licensed as advanced practice nurse; no other expert was offered; and the nurse herself testified that she met standard of care. The directed verdict was properly granted in favor of Defendant physicians as they were not involved in any medical decisions as to child who later died from bacterial meningitis, and thus owed no duty to the child. One Defendant physician's answer to Complaint that he undertook to provide diagnosis, care, and treatment to child was insufficient, in context of allegations of Complaint, to be deemed judicial admission that physician-patient relationship existed at time of alleged acts of negligence. This Illinois case will impact medical malpractice cases.

Matthews v. Aganad, No. 1-08-0499 (9-4-09) affirmed that a trial court within its discretion in denying motion for judgment n.o.v., as Plaintiffs' experts offered no credible alternative standard of care for administration of vaccine to plaintiff, but only argued against using CDC guidelines as standard of care. Plaintiffs failed to establish proximate cause, and no "lost chance" because giving vaccine was contraindicated in Plaintiff's case due to presence of fever. This Illinois case will have a great affect on medical malpractice cases.

Public 96-765 amends the the Health Care Surrogate Act affecting Do-Not-Resuscitate orders. It makes three changes: (1) Requires only one witness instead of two. (2) Requires that the witness attest that the person executing the DNR order was given an opportunity to read the form and either signed the form or acknowledged his or her signature or mark on the form in the witness's presence. (3) Changes the language from "DNR" order to "do-not-resuscitate" order. This Illinois bill which comes into effect January 1, 2010 will effect medical malpractice cases.

Cookson v. Price, No. 3-08-0669 (8/1//09) reversed and remanded a medical malpractice action against physical therapy assistant, complaint dismissed as initial Section 2-622 report from physical medicine and rehabilitation physician found non-compliant with Section 2-622. Trial court erred in dismissing complaint, and denying Plaintiff's motion to amend complaint with new section 2-622 report from physical therapy assistant. This Illinois case will impact medical malpractice.

Contribution/Indemnity Marion Hospital Corporation v. Sterling Emergency Services of Illinois, No. 5-07-0703 (7/23/09) reversed the original decision stating that the hospital sued Emergency Services Providers claiming "express indemnity" to recover for settlement paid by Hospital in separate suit in another county. Trial court erred in dismissing with prejudice Hospital's complaint as barred by Contribution Act; trial court reasoned that it sought relief for contribution or partial indemnity. Claim was actually seeking indemnity for vicarious liability of Hospital for conduct of Physician's Assistant; and indemnity is available when liability is vicarious by operation of policy of law, not culpability of conduct of agent. This case will affect medical malpractice cases.

Botvinick v. Rush University Medical Center, No. 08-1966 (7/24/09) affirmed that the district court not err in granting defendants' motion for summary judgment in action alleging that defendants tortiously interfered with plaintiff's expectation of future employment by providing potential employer with false and petty information about plaintiff's reputation. Three defendants provided unrebutted affidavits that they did not provided any information to potential employer about plaintiff's qualifications to be anesthesiologist. Moreover, plaintiff failed to present evidence that information provided by fourth defendant played any role in decision by third-party not to hire plaintiff, and plaintiff otherwise failed to obtain any discovery from potential employer. This Illinois decision will have an effect on medical malpractice cases.