Illinois Appellate Court Reverses Birth Injury Medical Malpractice Jury Verdict on the Basis of Faulty, Discovery Issues, and Misleading Jury Instructions

The Illinois Appellate Court for the First District vacated the decision of a Cook County Circuit Court and a jury verdict.

Marilyn Perez began treatment with a fertility specialist in September 2011. On Aug. 11, 2012, she went into St. Alexius Medical Center emergency room with pelvic pain, and she received a CT scan and ultrasound.

Dr. Gregory Gullo reviewed the CT scan and identified a teratoma on her left ovary. Dr. Jeffrey Chung reviewed the ultrasound and reported finding no mass.

Her physician, Dr. Christopher Michael, consulted both and determined that there was no teratoma. She proceeded with in vitro fertilization treatment and became pregnant with twins in December 2012.

On March 8, 2013, Perez went back to St. Alexius for abdominal pain and underwent an appendectomy.

On March 13, 2013, she was back with the same abdominal pain wherein a CT was taken with the teratoma visible, as well as ultrasounds where no teratoma was identified by the doctors interpreting it.

On May 3, 2013, she was admitted once again. When she underwent a cesarean section on June 21, 2013, the teratoma was found this time, ruptured, and removed, but it had already metastasized. A teratoma is a tumor made up of several different types of tissues. They typically form in the ovary. Symptoms vary depending on location. A painful lump or swelling may occur.

Unfortunately, she died from metastatic cancer on Jan. 15, 2014. Jesse Perez, Marilyn’s husband, filed suit against St. Alexius and several doctors. The case went to jury trial with the jury finding in favor of Perez and family against two defendants for the sum of $25 million, but in favor of a not guilty verdict for St. Alexius and Dr. Chung, holding that Dr. Chung was not an apparent agent of St. Alexius. Perez appealed.

On appeal, Perez argued that the jury’s finding that Dr. Chung was not the apparent agent of St. Alexius Hospital was against the manifest weight of the evidence, that the court erred by barring him from introducing Dr. Chung’s admission that the standard practice would involve consulting the CT scan, entered as a discovery disclosure under Illinois Supreme Court Rule 213(f)(3), as an evidentiary admission against him at trial, or to question him on the American College of Radiology (ACR) practice guidelines, which include reviewing the CT scan, and that the court erred in instructing the jury on apparent agency.

The appeals panel agreed. The trial court abused its discretion by preventing Perez from confronting Dr. Chung with either his disclosure or the ACR guidelines relating to his choosing not to consult the CT scan, noting that Rule 213(f)(3) does not prohibit impeaching the defendant where a disclosure made by his own counsel on his behalf, and finding it should have been permissible.

The appellate court also made note that Perez was correct that the standard instruction given by the trial court did not accurately state the law, as the instruction given, about Dr. Chung’s status as an “employee,” was not relevant for the issue of agency, but would be misleading given that he stated that he was not an employee of St. Alexius.

The appellate court found reversible error on each of those claims. One justice dissented holding that the jury’s finding was not against the manifest weight of the evidence and the trial court committed no reversible error, but was in the minority.

Accordingly, the appellate court vacated the decision of the trial court and remanded the case back for a new trial.

Jesse Perez v. St. Alexius Medical Center, et al., 2020 IL App (1st) 181887, Aug. 28, 2020.

Kreisman Law Offices has been handling wrongful death lawsuits, birth trauma injury cases, obstetrician negligence lawsuits, labor and delivery negligence cases and birth injury lawsuits for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Rosemont, River Forest, Oak Lawn, Oak Forest, Forest Park, Prospect Heights, Mount Prospect, Olympia Fields, Wilmette, Winnetka, Northfield, Glenview, Wheeling, Vernon Hills, Zion, Waukegan, Joliet, Aurora, St. Charles, Chicago (Mount Greenwood, Marquette Park, South Shore, Chinatown, Wrigleyville, Lakeview, Lincoln Square, West Rogers Park, Noble Square, Greek Town, Little Italy, Little Village, North Lawndale, Austin, River North), Glencoe, Skokie, Schaumburg, Deerfield and Lincolnshire, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.

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