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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.

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.

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