Wrongful Death Suit Allowed for Aborted Fetus (a first in Illinois)

On March 16, 2007, the 1st District Appellate Court overturned the trial court and reinstated a wrongful death claim brought by a mother who had an abortion after a car accident in which she suffered a broken pelvis.

The mother was three months pregnant at the time of the car accident. The fetus was not injured in the accident, but was exposed to radiation from her treatment. The mother's doctors told her she could terminate the pregnancy and have immediate surgery to repair her pelvis, wait until the second trimester to reduce risk to the fetus, or have immediate surgery with the risk that she would lose the fetus. The mother chose to terminate her pregnancy. The defendant argued the car accident could not have caused the fetus' death where the abortion was an elective procedure. The trial court agreed and granted summary judgment. The Appellate Court reversed. The Appellate Court held it was up to the jury to determine whether the abortion was necessitated because of the injuries sustained as a result of the defendant's negligence.

Bottom Line:

This case appears to open the door to wrongful death claims brought by women who choose to have an abortion if there is evidence that the pregnancy was terminated as a result of the defendant's negligence. For example, in a medical malpractice context, if a pregnant woman is mistakenly given a potentially toxic medication and chooses to terminate her pregnancy as a result, it appears she can now bring a claim for wrongful death for her aborted fetus.

Request to Admit (new case) - June 28, 2006

In Vision Point of Sale v. Ginger Haas, the appellate court was asked the following question:

In determining whether "good cause" exists under Supreme Court Rule 183 to grant an extension of time to remedy an "unintentional noncompliance" with a procedural requirement (i.e., answer the request to admit in the amount of time prescribed by law), may the court take into consideration facts and circumstances of record which go beyond the reason for the noncompliance?

Held: Yes. The court should take into consideration any facts bearing on the balance between the need for efficient litigation in full compliance with court rules and the interests of achieving substantial justice on the merits for the parties. The court does not have to restrict its attention to the causes for the delay in the responses to the requests to admit.

Significance of Holding: I suspect the "good cause" requirement for an extension of time will become somewhat meaningless and courts will extend the time much more freely.

Illinois Supreme Court (New Apparent Agency Case) - June 27, 2006

The Illinois Supreme Court has issued its decision in the matter of York v. El-Ganzori. It is very fact intensive, and I have attached it below for your reading enjoyment.

The plaintiff sued, among others, Dr. El-Ganzouri (an anesthesiologist) for malpractice. Rush Presbyterian-St. Luke's was sued based on the doctrine of apparent agency for Dr. El-Ganzouri's conduct. The jury entered a verdict against the defendants, and Rush appealed. Rush argued the plaintiff failed to prove that it held out Dr. El-Ganzouri as its agent and failed to prove that he relied on Rush for his care. The Appellate Court upheld the jury's verdict in favor of the plaintiff.

Initially, the Appellate Court was asked to decide between two lines of Illinois cases on apparent agency. In Butkiewicz v. Loyola University and James v. Ingalls, the courts focused on why the patient went to a particular hospital. In other words, did the patient rely on any representations of the hospital or the alleged apparent agent (i.e., the doctor) in going to the particular hospital or did the patient go to the hospital for some other reason (i.e., the patient's doctor told him to go there, it was the closest hospital, etc.).

In McCorry v. Evangelical Hospitals and Scardina v. Alexian Brothers, the courts focused on why the patient accepted treatment from the allegedly negligent doctor and not why the patient chose the particular hospital. In other words, did the patient rely on the hospital to select a particular physician to provide treatment to the patient or did the patient select the particular physician.

The Illinois Supreme Court reviewed the Appellate Court's decision and agreed with the Appellate Court that McCorry and Scardina applied. The Court also evaluated whether O'Banner v. McDonald's Corp. (a prior Illinois Supreme Court decision on apparent agency which dealt with a slip and fall at McDonalds) applied in the medical malpractice setting. In O'Banner, the Court held that to establish the reliance element of apparent agency, the plaintiff must show that he or she actually relied on the "holding out" of McDonalds in going to the restaurant. The York Court held that the O'Banner decision does not apply to medical malpractice cases. Rather, the apparent agency elements outlined in Gilbert apply. The York Court rejected the reasoning/application of Butkiewicz, James and O'Banner and followed the reasoning/precedent of McCorry, Scardina and Gilbert.

The Supreme Court again affirmed Gilbert and stated: "that if a patient knows, or should have known, that the allegedly negligent physician is an independent contractor, that patient may not seek to hold the hospital vicariously liable under the apparent agency doctrine for any malpractice on the part of that physician. In other words, if a patient is placed on notice of the independent status of the medical professionals with whom he or she might be expected to come into contact, it would be unreasonable for a patient to assume that these individuals are employed by the hospital. It follows, then, that under such circumstances a patient would generally be foreclosed from arguing that there was an appearance of agency between the independent contractor and the hospital."

Citing Gilbert, the Supreme Court further stated, that the reliance element of a plaintiff's apparent agency claim is satisfied if the plaintiff reasonably relies upon a hospital to provide medical care, rather than upon a specific physician. If a patient has not selected a specific physician to provide certain treatment, it follows that the patient relies upon the hospital to provide complete care-including support services such as radiology, pathology, and anesthesiology-through the hospital's staff. If, however, a patient does select a particular physician to perform certain procedures within the hospital setting, this does not alter the fact that a patient may nevertheless still reasonably rely upon the hospital to provide the remainder of the support services necessary to complete the patient's treatment. Generally, it is the hospital, and not the patient, which exercises control not only over the provision of necessary support services, but also over the personnel assigned to provide those services to the patient during the patient's hospital stay. To the extent the patient reasonably relies upon the hospital to provide such services, a patient may seek to hold the hospital vicariously liable under the apparent agency doctrine for the negligence of personnel performing such services even if they are not employed by the hospital.

Bottom Line:

If there is no consent form with the appropriate agency language, the court will determine whether the patient chose the allegedly negligent doctor before coming to the hospital or whether the hospital assigned a particular physician to the patient. If the hospital assigned a particular physician to the patient, then the hospital will likely be on the hook based on any agency allegations for that physician's conduct. If the patient chose a particular doctor before coming to the hospital (or perhaps asked for a particular physician while at the hospital), then the hospital has a better chance of prevailing on a motion for summary judgment as to that particular physician. However, even if a patient goes to a hospital to see a specific physician, the hospital is still responsible for the conduct of the other medical providers (i.e., nurses, radiologists, etc.) even if they are not employees unless there is a consent form.

As before, for the best chance of defeating an apparent agency claim, use a detailed consent form!!!

New Venue Case - June 9, 2006

In Jackson v. Reid, the 4th District reversed the trial court's decision and held that the trial court erred by denying defendants’ motion to transfer venue. In a nutshell, defendants argued that none of the defendants lived or practiced medicine in McLean County; had offices in McLean County; or provided any medial services to plaintiff in McLean County. All of the care at issue took place in Peoria County. In response, Plaintiff argued that defendants referred the plaintiff for tests in Peoria County and relied on those test results for their treatment of the plaintiff. Plaintiffs argued the tests performed in McLean County constituted an integral part of their cause of action. The appellate court disagreed with the plaintiffs and held that venue was not proper in McLean County.

Bottom Line:

Merely because a defendant/physician orders a test that is performed in another county does not make that county a proper venue for a lawsuit against the physician even if the physician relies on the results in providing care and treatment to the plaintiff.

Potential Impact of Decision on Forum Non Conveniens Motions:

A court may consider a forum non conveniens motion only after it has made the legal determination that there is more than one proper venue, and the venue in which plaintiff chose to file the action is one of the proper venues. This case may be used in support of forum non conveniens motions where the plaintiff tries to argue that a certain forum is proper merely because the plaintiff underwent certain tests and/or other medical treatment in that county, even if those tests and/or other treatment have no reasonable connection to the allegations of negligence.

Statute of Limitations/Repose (injury to fetus in utero) - March 13, 2006

In Brucker v. Mercola, a case Jennifer Lowis and I have been defending, the plaintiff/mother went to see Dr. Mercola for an allergy consultation. Dr. Mercola was aware that the patient was pregnant and recommended a supplement for her allergies. His office dispensed the wrong supplement which was allegedly toxic to the mother and the fetus. Over eight years after the incident, the mother filed a claim on behalf of the child (a claim had been pending on her own behalf for years prior). We filed a motion to dismiss the child's claim as untimely. The court initially denied our motion to dismiss the claim on behalf of the child, but then reversed itself in response to a motion to reconsider and agreed with our position that the case was filed too late.

Issue: when does the statute of limitations/repose begin to run for an injury that occurs in utero (assuming that the child is not born profoundly mentally disabled)?

Summary of Arguments: We argued that the 8-year statute of repose in Section 13-212(b), which applies to all minors in medical malpractice actions, governed this lawsuit. The plaintiff argued that being a fetus is a "legal disability" pursuant to Section 13-212(c) and tolls the statute of repose until the fetus is born. Our response was that unless the child is born with a "legal disability other than minority" (i.e., born severely mentally/physically disabled), then the tolling provisions in 212(c) do not apply. The court agreed.

Holding / Bottom Line: the 8-year statute of repose in Section 13-212(b) begins to run on the date of the alleged negligence and not 8 years from the date of the child's birth. Being a fetus does not, in and of itself, toll the 8-year statute of repose for minors in medical malpractice lawsuits.

Respondents In Discovery - April 6, 2006

In 1993, the Robinson v. Johnson case held that a trial court does not have discretion to extend the 6-month statutory window allowed for converting respondents-in-discovery to defendants. The court's decision was to be applied prospectively.

On March 31, 2006, in Brown v. Jaimovich, the Court ruled that the Robinson decision applies to cases filed on and after September 26, 2003. For example, if a plaintiff names Dr. Smith as a respondent in discovery on 09/26/03. The plaintiff has until 03/26/04 to convert Dr. Smith to a defendant. If the plaintiff files a motion to extend the time to convert Dr. Smith on 03/15/04 and the motion is not granted until 06/26/04, then the Robinson decision applies and any extensions of time allowed are improper under Robinson.

After January 1, 2006, the respondent in discovery statute has been amended as follows: "[General Rule] A person or entity named as a respondent in discovery in any civil action may be made a defendant in the same action at any time within 6 months after being named as a respondent in discovery, even though the time during which an action may otherwise be initiated against him or her may have expired during such 6 month period. [Exceptions] An extension from the original 6-month period for good cause may be granted only once for up to 90 days for (i) withdrawal of plaintiff's counsel or (ii) good cause. Notwithstanding the limitations in this Section, the court may grant additional reasonable extensions from this 6-month period for a failure or refusal on the part of the respondent to comply with timely filed discovery." 735 ILCS 5/2-402 (Supp. 2006).

Bottom Line: plaintiffs have 6 months to convert a respondent in discovery to a defendant (assuming the statute of limitations has expired). Only one extension will be allowed for no more than 90 days if (1) plaintiff's counsel withdraws from the case; or (2) other good cause (based on Robinson this will likely be a very hard burden to meet). The exception to the exception is additional time will be allowed if the respondent in discovery fails to respond to timely filed discovery requests.

New Cases Address: 213 Disclosures & Risk of Future Injury - October 27, 2005

Foley v. Fletcher, 2005 WL 2276972 (1st Dist.)

213 Portion of Decision

Relevant Facts:

A baby was born with cerebral palsy. Her parents sued the obstetrician claiming she was negligent in attempting a vaginal deliver after a c-section (VBAC). The jury awarded the plaintiffs $16 million. In essence, the plaintiffs' 213(f)(3) disclosures stated the defendant-doctor breached the standard of care by failing to inform the patient of the general risks of VBAC. At trial, the expert was asked what informed consent meant and testified the patient "needs to know why she's at risk, what in her history or examination puts her at risk, and if the situation changes with time, any additional risks need to be explained to the patient". The expert then testified about the specific factors that put the patient/mother at risk.

Issue on Appeal:

Whether plaintiff's expert included new opinions that were not disclosed before trial pursuant to Supreme Court Rule 213(f)(3)?

Holding/Bottom Line:

The expert's opinions where not new, but were logical corollaries to what had been disclosed. A witness may elaborate on a disclosed opinion as long as the testimony states logical corollaries to the opinion, rather than new reasons for it. The testimony at trial must be encompassed by the original opinion.

Risk of Future Harm / Holding/Bottom Line:

The plaintiffs' expert testified the child had an increased future risk of scoliosis and hip dislocation, but could not quantify the risk as slight, moderate or significant or predict whether the risk would materialize in this child's case. Jury's award of $1 million for risk of future harm was vacated because the plaintiffs' expert could not quantify the risk of future injury. Therefore, the jury's award was speculative and not supported by the evidence.

Post-event literature at trial - October 12, 2005

Nelson v. Upadhyaya, et. al.

Facts (in relevant part):

The plaintiff suffered brain damage due to meningitis shortly after his birth in 1990. The plaintiff sued the obstetrician alleging she should have treated the babywith antibiotics prophylactically. The defendants argued they complied with the 1990 standard of care and used post-occurrence literature to support their theory that the standard of care evolved to require prophylactic antibiotics for a case like plaintiffs. Importantly, they did not use the literature to establish the standard of care, but only used it to show how the standard of care had evolved. The jury returned a verdict for the defendants. The first district reversed Judge Thomas Hogan.

Holding:

The trial court erred by allowing the defense to use post-occurrence literature as an aid to interpreting the applicable standard of care. The case was sent back to the lower court for a new trial.

Bottom Line:

It is reversible error to use post-occurrence literature (i.e., from 1992) to establish or support the standard of care (i.e., in 1990), even if you are using the literature to show how the standard of care has evolved over the years (i.e., from 1990 to 1992).

Collateral Source Rule - July 22, 2005

Collateral Source Rule: Benefits received by the plaintiff from a collateral source (i.e., health-care insurance provider) will not diminish damages otherwise recoverable from the defendant.

Issue ruled on by the Illinois Supreme Court: Can a plaintiff recover as damages the entire amount billed by health-care providers for medical services, or whether a plaintiff is limited to recovering the discounted amount actually paid for the medical services by the plaintiff's insurance carrier?

The majority does not really answer the question directly. I suggest reading the dissent for a complete analysis of the majority's very confusing opinion. As the dissent points out, this opinion is likely to cause much confusion when the reasonableness of a plaintiff's medical expenses are at issue.

Held: The plaintiff may present [not necessarily recover] to the jury the amount that her health-care providers initially billed for services rendered.

Note: This should not be used or relied upon as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only and you are encouraged to consult with an attorney regarding any specific legal question you may have.

Another 2-622 Opinion - April 21, 2005

The 4th District has issued another 2-622 decision. In Cothren v. Thompson, the appellate court affirmed the trial court's decision and dismissed the plaintiff's complaint with prejudice for failure to file a 2-622 report within 90 days of the plaintiff's request for an extension of time to do so. This is consistent with the recent decision in Cargill. However, unlike the Cargill decision, this court stated that trial courts may extend the time for filing a 2-622 report "for good cause shown". In Cothren, the plaintiff claimed he did not file the 2-622 in a timely manner because his 2-622 physician was in jail and plaintiff's counsel was having a hard time communicating with the doctor. Appropriately so, the appellate court held this did not amount to "good cause". Bottom Line:Courts do not have discretion to waive the requirements of 2-622 (Cargill), although they may extend the time for a 2-622 report beyond the 90 days "for good cause shown" (Cothren).

Another 2-622 Opinion - April 21, 2005

The 4th District has issued another 2-622 decision. In Cothren v. Thompson, the appellate court affirmed the trial court's decision and dismissed the plaintiff's complaint with prejudice for failure to file a 2-622 report within 90 days of the plaintiff's request for an extension of time to do so. This is consistent with the recent decision in Cargill. However, unlike the Cargill decision, this court stated that trial courts may extend the time for filing a 2-622 report "for good cause shown". In Cothren, the plaintiff claimed he did not file the 2-622 in a timely manner because his 2-622 physician was in jail and plaintiff's counsel was having a hard time communicating with the doctor. Appropriately so, the appellate court held this did not amount to "good cause". Bottom Line:Courts do not have discretion to waive the requirements of 2-622 (Cargill), although they may extend the time for a 2-622 report beyond the 90 days "for good cause shown" (Cothren).

New Petrillo Case - April 5, 2005

As you may know, under Petrillo v. Syntax Laboratories, defense counsel may only communicate with a plaintiff's treating physician by formal discovery (i.e., depositions). In Moss v. Amira, defense counsel deposed a treating physician and prior to the treating physician's evidence deposition, defense counsel sent the physician a letter and 213(f)(3) disclosures (i.e., expert disclosures) which outlined what defense counsel anticipated the treating physician would testify to. Plaintiff's counsel sought to bar the physician's testimony claiming that defense counsel's communications violated Petrillo. The trial court did not bar the physician's testimony reasoning the communications did not rise to the level of a Petrillo violation. The Appellate Court reversed, and held the communications were ex parte communications with a treating physician in violation of Petrillo and ordered the trial court to bar the treating physician's testimony on remand.Bottom Line: providing a treating physician with 213(f)(3) disclosures which outline what defense counsel anticipates the treating physician will testify to is a Petrillo violation. If defense counsel communicates, either verbally or in writing, with a treating physician about any substantive matters, defense counsel should anticipate that the treating physician will be barred from testifying as a sanction for the Petrillo violation.

New Jury Instruction for "Professional Negligence" - March 29, 2005

There is a new jury instruction that defines the duty of care owed by defendants in medical malpractice cases. It is now defined as follows: "Professional negligence" by a [doctor, nurse, etc.] is the failure to do something that a reasonably careful [doctor, nurse, etc.] would do, or the doing of something that a reasonably careful [doctor, nurse, etc.] practicing in the same or similar localities would not do, under circumstances similar to those shown by the evidence.Bottom Line: The former instruction defined standard of care in terms of a "reasonably well-qualified" professional, while this instruction uses the language "reasonably careful".Thoughts: This instruction may initially cause some problems for defense experts as well as defendants that are not warned of this change and prepared accordingly. Ultimately, it seems the instruction will be simpler and more understandable to a jury.

Good Samaritan Act - February 14, 2005

A physician is immune from liability under the Good Samaritan Act if (1) the physician provides emergency care and (2) does not charge a fee (as long as the conduct is not willful or wanton). Although infrequently mentioned in the case law, the statute requires that the medical services be provided in good faith. In Heanue v. Edgcomb, the Second District Appellate Court held that the decision not to charge a fee must also be made in good faith. Bottom Line: Refraining from charging a fee simply to invoke the protection of the Good Samaritan Act would seem to violate the requirement that the doctor's actions be taken in good faith, particularly if the decision not to charge a fee was made following treatment that could potentially expose a doctor to liability.

Attorney Client & Work Product Privileges

In Cangelosi v. Capasso (decided 06/30/06), the issue was whether a nurse's notes, which contained her recollection of relevant events and which were authored within a day of the events, prior to any litigation, and which were not turned over to an attorney for 22 months, are protected by either the attorney-client privilege or the work product privilege?Holding: the notes are not privileged and are discoverable in a lawsuit. Reasoning: With respect to the attorney-client privilege, even though the nurse created the notes in anticipation of potential litigation, they were not protected from discovery because they were not created at the direction of an attorney. In fact, the nurse did not have an attorney at the time she wrote the notes. Nor were they created after a lawsuit had been filed. Turning the notes over to an attorney 22 months later did not change the nature of the notes. The work-product privilege did not apply because the notes did not "contain or disclose the theories, mental impressions, or litigation plans of the party's attorney". Bottom Line: Generally speaking, if a healthcare provider (physician, nurse, etc.) creates personal notes to memorialize an event prior to any litigation, the notes will likely be discoverable in a lawsuit unless they are created at the direction of an attorney or perhaps for a specific attorney.

New Apparent Agency Case

On December 12, 2006, the First District issued a decision that will very likely have a significant and negative impact upon hospitals, where the hospital is sued for the conduct of non-employed physicians based on the apparent agency doctrine. In Schroeder v. Northwest Community Hospital, the trial court granted summary judgment in favor of Northwest Community Hospital. The First District has reversed that decision. Issue: whether there was sufficient evidence for a jury to find that the physician defendants were the apparent agents of Northwest Community Hospital (NWCH)?Relevant Facts: The patient/decedent sought care at NWCH for rheumatoid arthritis on three occasions. Each time the patient was admitted he or his wife initialed and signed a consent form. This one-page document contained six sections pertaining to (1) a general consent for treatment, (2) a disclosure statement, (3) a release of responsibility for valuables, (4) an assignment of insurance benefits, (5) a payment guarantee, (6) and an acknowledgment. Item 2 of the consent form, which was the subject of defendant's motion for summary judgment, states in pertinent part:“Item 2 disclosure Statement: Your care will be managed by your personal physician or other physicians who are not employed by Northwest Community Hospital or Northwest Community Day Surgery Center but have privileges to care for patients at this facility. Your physician's care is supported by a variety of individuals employed by Northwest Community Hospital or Northwest Community Day Surgery Center, including nurses, technicians and ancillary staff. Your physician may also decide to call in consultants who practice in other specialties and may be involved in your care. Like your physician, those consultants have privileges to care for patients at this facility, but are not employed by Northwest Community Hospital or Northwest Community Day Surgery Center.” Item 6 of the consent form entitled “Acknowledgment” reads: “Upon signing this form, I acknowledge that I have read and understood the foregoing and accept its terms.”Plaintiff argued: the evidence established a genuine issue of material fact that the defendant physicians were the apparent agents of NWCH. Plaintiff argued the universal consent form which she and decedent signed was “extremely confusing” and ambiguous because it did not state in a clear fashion that the doctors who would be caring for decedent were not hospital employees or agents, and it could reasonably be interpreted to mean that his personal physicians were employed by NWCH but the other unidentified physicians who might be involved in his care were not. Additionally, plaintiff argued the disclosure statement was “sandwiched” in between “small print” releases of medical records and consents for treatment, a release of responsibility for valuables, and an assignment of insurance benefits, all of which added to the confusion, and no meaningful effort was made by the hospital to ensure that plaintiff or decedent understood what was being disclosed to them.Holding/Reasoning: The Court stated: "there is evidence that decedent signed the consent forms during his first two hospitalizations, and plaintiff, his wife, signed a form during his third and final hospitalization. However, we believe the issue is not whether plaintiff was confused or led to believe by any actions on the part of Northwest that the physicians were its agents or employees but whether decedent was confused or misled by the disclosure forms and whether he perceived or believed the physicians were the agents or employees of Northwest. Obviously, if he knew or should have known that the defendant physicians were independent contractors, then the hospital is not liable. If, however, there is evidence that decedent reasonably believed his personal care physician and the consulting physicians were agents or employees of the hospital, a triable issue of fact exists and should be presented to a jury. We believe there is sufficient material evidence on this issue of apparent agency which should be submitted to the trier of fact, and that, therefore, summary judgment was inappropriate."Bottom Line: I believe this is a devastating decision for hospitals. I believe the Court gave lip service to the Gilbert decision and ultimately misapplied the principals set out in Gilbert and York.

$25 million Loss of Society Award Deemed Excessive!

Mikolajczyk v. Ford Motor Company- (issued by the First District, Third Division of the Appellate Court on 11/22/06)- great decision for the defense!Brief facts: The plaintiff brought a strict products liability lawsuit against Ford and Mazda claiming the car seat of decedent's car was unreasonably dangerous and defective. The jury awarded $25 million for loss of society and sexual relations in a wrongful death claim. The decedent was 46 years old at the time of his death and earned $63,450 per year. He and his wife had two children. The evidence presented established a loving relationship among all. Holding: The court held the $25 million award exceeded fair and reasonable compensation and shocked the judicial conscience. The appellate court directed the trial court to remit (reduce) the amount of the verdict for loss of society. Significantly, the appellate court stated: "by way of guidance to the trial court, we would find it difficult to deem reasonable a loss of society award of more than seven figures in this case and would certainly find unreasonable an award of any more than one-half of the loss of society award settled upon by the jury." Significance of Holding: This case arguably will allow defendants to challenge verdicts for loss of society that exceed roughly $14.5 million. Future of Holding: It is likely the plaintiff will ask the Supreme Court to review and reverse the appellate court's decision.