Illinois Medical Malpractice Blog

Northern Trust Company v. Burandt and Ambrust, LLP, No. 2-08-0193 (5-26-10) found that infection-causation defense that preexisting strep bacterial infection caused infant's injuries at time of birth should have been admitted, as this defense meets the general-acceptance Frye standard. This case will impact Illinois medical malpractice law.

Thornton v. Garcini, No. 107028 (4-22-10) affirmed a case stating 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 impact damages in medical malpractice law.

Pavnica v. Veguilla (No. 3-09-0065) is a third district case which affirmed that a medical malpractice action filed against two ER physicians, claiming negligence in their choice of certain antibiotic to treat toe infection of diabetic patient; verdict for Defendants. Defendants' experts refuted Plaintiff's experts as to standard of care and causation, thus evidence did not so overwhelmingly favor Plaintiffs that jury verdict cannot stand. Court properly denied motion in limine which sought to exclude physicians' testimony as to their military service. Even though military service as physician in Iraq occurred after his treatment of Plaintiff, it was experience relevant to his qualification as expert at trial; and reference to military service was limited, and nature and timing of service was described. This Illinois case will impact medical malpractice law.

Hardy v. Codero, No. 3-09-0109 (4-8-10) affirmed a medical malpractice case against oncology nurse, as to administration of IV chemotherapy, proceeded to jury trial 10 months after filing, with verdict for Defendant. Defendant nurse's testimony refuted Plaintiff's expert's assertion as to breach of standard of care, thus question of fact to be resolved by jury, rather than directed verdict or judgment n.o.v. Not error for court to have excluded testimony of occurrence witness nurse as to what she personally would have done. This Illinois case will affect medical malpractice law.

Happel v. Walmart Stores, Inc., No. 07-2264 (4-19-10) found that the plaintiffs were entitled to new trial on damages in action alleging negligence and loss of society under circumstances where defendant-pharmacy knowingly filled prescription of medication to which it knew that plaintiff-wife was allergic since Dist. Ct. gave jury form that provided only single line for jury to make $465,000 verdict in favor of both plaintiffs. Verdict form should have contained separate lines to distinguish damage awards for plaintiff-husband's loss of society claim, as well as wife's negligence claim. Error was not harmless where: (1) Dist. Ct. was required to offset jury award with $150,000 settlement from wife's primary physician: and (2) full off set was not appropriate since record did not indicate that jury assessed wife's and husband's claims at more than $75,000 each. This seventh circuit case will have an impact on medical malpractice cases.

Wilson v. Humana Hospital, No. 1-07-3454 (3-19-10) affirmed a medical malpractice case filed by a mother on behalf of her son based on alleged birth injuries, in failing to timely perform and report lab studies after mother's water broke several weeks prior to due date, and baby born two days later with significant and continuing respiratory problems. Not guilty verdict was rendered after lengthy jury trial. Experts disagreed on whether brain damage due to prematurity or malpractice, including whether baby had certain type of infection. Plaintiff opened the door to any defense cross-examination or rebuttal on issue of tests by questioning plaintiff's own experts about it. Court properly instructed jury as to statute of limitations affirmative defense and legal disability, where child, who was age 10 at time suit filed, appeared to be not under legal disability for purpose of giving trial testimony. This Illinois case will impact medical malpractice law.

Uldrych v. VHS of Illinois, No. 1-08-3278 (3-2-10) affirmed that actions for implied indemnity are subject to four-year period of repose in Section 13-212(a) of Code of Civil Procedure. Thus, Hospital's implied indemnity claim against physicians, which was filed 1 1/2 years after expiration of period of repose, was properly dismissed as untimely. This Illinois case will affect medical malpractice law.

Wilbourn v. Cavelenes, No. 1-08-3609 (2-10-10) affirmed a decision involving a medical malpractice case jury trial with a verdict for the Defendants. The trial court was within its discretion in striking one basis for the Plaintiff's expert's opinion as to why Defendant surgeon used certain compression plate for fracture, and in instructing the jury to disregard expert's statement that he had never seen or heard of other type of plate failing or breaking within one month. The trial court was within its discretion in denying motion for new trial as to defense counsel's closing argument that Defendants had to wait 3 1/2 years for Plaintiff to develop her theory of case, as court's instruction that closing arguments were not evidence sufficient to occur error; and isolated reference to Plaintiff's counsel as "slick lawyer" would not have affected outcome. This case will impact Illinois medical malpractice law.

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.