Illinois Medical Malpractice Blog

Studt v. Sherman Health Systems, No. 108182, presented the question of whether in an instant medical malpractice action as to whether trial court properly gave jury instruction 2006 IPI 105.01, which advised jury that in determining whether defendant's emergency room physicians violated applicable standard of care, jury could properly consider, among other things, evidence of by-laws, rules, regulations, policies and procedures, and other evidence presented in instant case. Appellate Court found that 2006IPI 105.01 was accurate statement of law, while defendant argued that said instruction improperly eliminated distinction between professional and institutional negligence. This case will greatly impact medical malpractice lawsuits.

Wallace v. Alexain Brothers Medical Center, No. 1-08-2852 (4-24-09) affirmed that the mother of a deceased child who died after receiving emergency and surgical care at defendant hospital, failed to present sufficient evidence of apparent authority to withstand hospital's motion for summary judgment. Even though it was after emergency treatment of her daughter had already commenced, she signed consent acknowledging that physicians were independent contractors; and had previously signed several other of the same form consents at that hospital, as recently as a few months earlier. This case will greatly impact medical malpractice cases.

Forsberg v. Edward Hospital and Services, No. 2-08-0243 (4-8-09) affirmed that although a Section 2-622 report is not automatically excluded from use by plaintiff to rebut defendant's motion for summary judgment in medical malpractice action, the 2-622 report attached to the plaintiff's complaint does not satisfy the requirements of SCR 191, since the report relies on records that are not attached. Further, the common knowledge and "captain of the ship" doctrines are not sufficient to overcome defendant's affidavits that he justifiably relied on sponge count of nursing staff to insure that no sponge was left in plaintiff before he left operating room after lumpectomy. Therefore, defendant is entitled to summary judgment dismissing plaintiff's complaint. This case will greatly impact medical malpractice cases.

Crull v. Sriratana, M.D., No. 4-06-0952 (3/23/09) affirmed a previous opinion which found that the trial court did not err when it dismissed plaintiff's medical malpractice complaint with prejudice after trial court learned that plaintiff's attorney relied on report of medical consultant whose license of practice medicine had been suspended for felony narcotics conviction when he signed affidavit to extend time for filing 2-622 report. In addition, plaintiff's reply brief is stricken for failure to recite authority or contain recitation to the record; and for making statements of fact outside of, and inconsistent with, the record. This decision will impact medical malpractice cases.

Wierzbicki v. Gleason, No. 1-06-3756 (3-6-09) is a sixth court decision that found that the trial court lacked jurisdiction to enter order reversing previous order allowing plaintiff to reinstate her medical malpractice action, which had been dismissed for want of prosecution, while the reinstatement order was on appeal. Further, doctrine of revestment does not apply to give court jurisdiction to vacate its order. In addition, since it appears from the record that the trial court reversed its previous ruling in order to punish plaintiff's attorney for conduct which occurred outside of court's presence, case will be remanded to be heard by a different judge. This decision will have a great impact on medical malpractice cases.

Tabe v. Ausman, No. 1-07-0703 (2-9-09) is an Illinois decision that found that the trial court erred when it granted plaintiff a new trial after jury returned medical malpractice verdict in favor of all defendants. Because there was adequate testimony for jury to conclude that defendants did not breach standard of care when they relied on neuroradiologist report, which did not show any compression of the spinal cord after laminectomy, when deciding not to perform nerve decompression procedure, and because plaintiff did not tender any special interrogatories to the jury, any error associated with giving the long form proximate cause instruction could not be grounds for new trial. Further, there was no error in giving long form IPI 12.04, because there was evidence that sole proximate cause was the failure of the absent neuroradiologist to report decompression. This case will have a profound effect on medical malpractice cases.

Bosco v. Janowitz, No. 1-07-0617 (2-10-09), is an Illinois First District decision which affirmed that in the medical malpractice trial of defendant, physicians, for failure to set up and follow proper cancer detection and prevention plan after plaintiff's decedent was diagnosed with ulcerated colitis, evidence presented by defense that defendants did not breach standard of care at time of alleged malpractice is sufficient to withstand motion for judgment nov after jury verdict in favor of defendants. Further, it was not error to submit long version of IPI 12.04 and 12.05 based on evidence that sole proximate cause of plaintiff's death was the malpractice of the surgeon who perforated decedent's colon. In addition, it was not error to allow evidence that plaintiff's decedent failed to up with testing when requested to do so. This decision will greatly impact medical malpractice cases.

Siwa v. Koch, No. 1-06-3552 (2-10-09), affirmed a decision which stated that the defendant, a radiologist, is entitled to summary judgment dismissing plaintiff's cause of action for wrongful death after plaintiff's decedent volunteered to participate in a test of new CT equipment and software at the hospital where he was employed and defendant, after accidentally coming across scan, repeatedly warned plaintiff's decedent to see a cardiologist immediately, and plaintiff's decedent suffered a fatal heart attack while playing basketball. Not only did plaintiff fail to show a physician patient relationship, he also failed to prove any proximate cause between the alleged failure to make a proper medical record and plaintiff's fatal heart attack. This decision will greatly impact both wrongful death suits and medical malpractice lawsuits.

Giles v. Wyeth, Inc., No. 07-3149 (2/12/09) found that in a wrongful death action against defendant-manufacturer of anti-depressant drug Effexor in which jury found in favor of defendant, Dist. Ct. did not abuse its discretion in excluding warnings with respect to risk of suicide in younger persons that accompanied Effexor following plaintiff-decedent's death by suicide two days after taking said drug. Record failed to show that defendant knew or should have known information contained in warnings at time of plaintiff's death, and warnings otherwise did not pertain to individuals in decedent's age group. This seventh circuit decision will have a great effect on Illinois lawyers trying medical malpractice cases.

Walton v. Dirkes, No. 1-08-0461 (1-27-09) decided that the trial court erred when it entered judgment nov after jury returned verdict in wrongful death complaint for medical malpractice. Plaintiff presented sufficient evidence of proximate cause through experts' testimony that defendant's failure to order CBC resulted in missed opportunity to diagnose and treat plaintiff's decedent's leukemia. However, since trial court specifically refused to consider defendant's motion for a new trial, waiver rule will not be applied to bar defendant from pursuing that motion on remand. This case will impact Illinois lawyers trying medical malpractice cases.

American Association for Justice is hosting a seminar on medical malpractice lawsuits this weekend in Phoenix, Arizona. The seminar will provide an in-depth understanding of medical negligence issues and trial strategies.

For more information.

Medical professionals have a tendency to speak in abbreviations. In such a busy, hectic setting such as an emergency room or a doctor’s office, abbreviations shorten time. However, some patients do not follow and are left in the dust. Here is a website where you can enter the abbreviation and then the search engine provides the definition.

Abbreviations can lead to medical malpractice when a handwritten abbreviation is misinterpreted as meaning something different than what the physician intended. In fact, the Joint Commission on Accreditation of Healthcare Organizations has issued a “do-not-use” list because of their probability of misinterpretation, leading to dosing errors and serious medical malpractice.

For the website.

Stevens v. County Mutual Insurance Company, No. 4-08-0216 (12-31-08) decided that an attorney, who collected limits of liability from liability insurer of driver of vehicle involved in collision with his client, is entitled to attorney's fees from his client's insurer pursuant to common fund doctrine for the collection of the medical payments it made on behalf of its insured; because insurer did not intend to file its own action, authorized settlement with other driver, and benefitted from attorney's efforts. However, trial court erred when it entered summary judgment imposing Section 155 sanctions; because there is bona fide dispute whether common fund doctrine does not apply because medical payments were reimbursed through provisions of underinsured coverage. This will have a great impact on medical malpractice settlements.

Gillespie v. University of Chicago Hospitals, No1-07-1962 (12-31-08) ruled that the trial court did not err when it granted directed verdict in favor of non settling physician for wrongful death and survival because there was no physician patient relationship between plaintiff's decedent and internist, whom emergency room physicians listed as plaintiff's decedent's treating doctor, after she was discharged from the emergency room when defendant, physician, never saw her; and her report of EKG results was not used in plaintiff's diagnosis. In addition, since plaintiff, as adult decedent's mother, had no liability for decedent's medical bills, trial court properly refused to allocate any portion of settlement to family expense; and allocated settlement two thirds to survival action and one third to wrongful death. This will have a great impact on medical malpractice cases.

Studt v. Sherman Health Systems, No. 2-07-0945 (12/23/04) affirmed a decision for a Medical malpractice verdict in favor of plaintiffs for failure to properly diagnose and treat wife's appendicitis is not subject to reversal based on defendant, emergency room physician's, challenge to "reasonably careful physician" and other language in IPI Civil (2006) 105.1. This case will have an effect on jury instructions in medical malpractice trials.

American Association for Justice is hosting a seminar from January 30-31, 2009 in Phoenix, AZ. It will cover a full array of medical negligence lawsuits, including catastrophically injured infants. You will get advice from prominent physicians and trial attorneys.

For more information.

The American Association for Justice (AAJ) will host a medical negligence lawsuit seminar from January 30-31, 2009 in Phoenix, AZ. The seminar will cover a wide variety of medical malpractice lawsuits, including birth injury lawsuits.

To sign up and for more information, click here.

Larsen, M.D. v. The Carle Foundation, No. 4-08-0149 (11-21-08) affirmed that in a breach of contract complaint against a hospital for its failure to renew privileges of surgeon, the trial court did not err when it granted judgment at the close of the plaintiff's, case in defendant's favor, pursuant to the provisions of Section 2-1110 of Code of Civil Procedure. Although the physician established that hospital was untimely in its forwarding of application to renew his privileges, the hospital gave him additional time to complete his application; and the plaintiff failed to prove that request for additional information was unreasonable, gave him insufficient time to respond, or that timely compliance was not possible. Further, because plaintiff's privileges were merely allowed to expire without renewal, rather than physician being subject to an adverse decision, he is not entitled to a fair hearing pursuant to the Hospital Licensing Act. This Illinois decision will greatly affect medical malpractice cases.

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.

For more information.

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.