New IL Supreme Court Decision (negligent infliction of emotional distress and setoffs)

Brief (to the extent possible) Facts: In Thornton v. Garcini, et. al., the plaintiff brought a lawsuit against a hospital, a physician and nurses for wrongful death, survival and negligent infliction of emotional distress in relation to the death of her son during child birth. A jury found the physician and the nurses not liable on all claims, but ruled against the hospital on plaintiff's emotional distress claim and awarded the plaintiff $175,000. The plaintiff filed a post trial motion challenging the jury's verdict. While the motion was pending, the plaintiff settled with the nurses and the hospital for all of the claims for $175,000. The plaintiff's post trial motion proceeded against the physician and eventually the appellate court ordered a new trial against the physician. After a second trial, a jury found in favor of the physician on the wrong death and survival claims, but found the physician liable for negligent infliction of emotional distress and awarded the plaintiff $700,000. The physician sought a setoff for $175,000, and the trial court denied that request. The Third District Appellate Court agreed with the trial court as did the Illinois Supreme Court.

On October, 29, 2009, the Illinois Supreme Court ruled on three issues:

1) Is expert testimony necessary to support a claim for negligent infliction of emotional distress?

Holding/Brief Reasoning: No. While expert testimony may be required in some cases to prove psychological injuries, it is not always required and was not required in the Thorton case given the facts of the case (the baby was stuck half way out of the mother for over an hour before it was finally delivered). The Court felt the jury could reasonably find that the circumstances of the case caused the mother emotional distress.

2) Did the single-recovery rule prohibit the plaintiff from seeking recovery from the defendant-physician for emotional distress?

The physician argued the jury in the first trial determined the amount of the plaintiff's damages for her emotional distress ($175,000), and the plaintiff accepted full payment in satisfaction of the judgment for that injury.

Holding/Brief Reasoning: No, because the Court felt the defendant-physician should have raised that issue after the first trial and before the second trial concluded; and therefore, the physician forfeited his right to claim that the single-recovery rule prohibited the plaintiff from seeking damages from him for emotional distress.

3) Is the defendant-physician entitled to a setoff (reduction) in the amount paid by the hospital to the plaintiff?

Holding/Brief Reasoning: No. The physician again forfeited his right to get a setoff because he did not file a counterclaim to seek such a setoff when filing his answer to the plaintiff's complaint. The Court ruled the physician was not entitled to a $175,000 setoff because the plaintiff did not have an opportunity to defend against the setoff claim until after the second trial was over.

Bottom Line: I would now consider filing a counterclaim in every case where a co-defendant has settled, where there is another lawsuit pending that may impact your damages (i.e., a separate Worker's Compensation claim that perhaps impacts your case), or the like.

On Call Physicians...No Duty of Care

On December 31, 2008, in Gillespie, v. University of Chicago Hospitals, the 1st District Appellate Court affirmed Judge Daniel Locallo's ruling and held that a physicians' duty is limited to those situations in which a direct physician-patient relationship exists. The defendant-physician was on call, was listed on the patient's records as her attending/admitting physician, interpreted an EKG for the patient after she was discharged from the hospital and billed for his service. The Appellate Court held that the physician was not involved in the patient's treatment while she was a patient, and the physician's EKG report was not used to diagnose or treat the patient. Therefore, there was no physician-patient relationship and no duty owed to the patient.

Bottom Line:

A physician's on call status and potential involvement after the patient's discharge is not sufficient to give rise to a physician-patient relationship. I suspect that determination will be very fact specific and should be assessed on a case by case basis, but this case is certainly favorable to on call physicians when their role is limited.