Jury Award Allowed to Stand in Willful and Wanton Misconduct Procedure in Medical Negligence Case

Illinois law prohibits punitive damages awarded in any medical malpractice case.  However, in this medical malpractice case there was a separate count alleging that the University of Chicago Hospitals acted in willful and wanton indifference to the plaintiff’s right to possession of her daughter’s remains.

This lawsuit originated in the Circuit Court of Cook County after Valentina Dearring, the daughter of the plaintiff, Alexandria Drakeford, died at the University of Chicago Hospital on April 10, 2003.  Valentina was just over one month old when she died.  She was born with persistent pulmonary hypertension of the newborn (PPHN).  This is a syndrome that is fatal in many infants.  In April 2005, Drakeford filed suit against the University of Chicago Hospitals for medical negligence.

At first, the Drakeford lawsuit alleged only wrongful death and survival based on medical negligence.  However, an amended complaint added a second count alleging willful and wanton interference with the right of possession of the remains of Valentina.

At the jury trial, the verdict was for the hospital as to the medical negligence claim, but the jury found that the hospital was guilty of willful and wanton misconduct. Drakeford was awarded $4.6 million in punitive damages.

The hospital moved for reduction of the jury verdict, claiming that the jury award was excessive. The trial judge granted the hospital’s motion and reduced the amount to $3 million. Drakeford accepted the judgment, but the hospital appealed again and this time Drakeford cross-appealed challenging the remittitur.

On appeal, the hospital raised a number of issues.  One was that it sought a motion for judgment notwithstanding the verdict.  There was another claim that the statute of limitations had run out and another as to jury instructions.  There was another issue raised by the hospital in that it sought to strike part of an expert’s testimony. Another challenge was based on the remarks made by the plaintiff’s lawyer in closing argument and another that the remittitur was too little.

The appellate court’s opinion discussed the motion for judgment notwithstanding the verdict and discarded most of the other hospital arguments. It was alleged in the lawsuit that the hospital’s conduct was willful and wanton because a representative failed to follow mandatory hospital procedures. Drakeford claimed that her infant’s body was disposed of without an autopsy and without her consent, possibly intentionally.

The expiration coordinator at the hospital testified at trial that for 8 days she called Drakeford with no answer.  Finally, she claimed, she reached Drakeford on the phone; she said Drakeford gave consent for the hospital burial. The coordinator testified that this call was witnessed by her supervisor, but the supervisor died before the trial began.

However, the hospital’s procedure required a written, signed consent before releasing remains for disposition. Several hospital forms were missing and the one that was filled out indicated that the coordinator received consent after the police had removed the infant’s body for transportation to the morgue.

The appellate court found that under these circumstances, it was not unreasonable for a jury to have found in favor of Drakeford.  The court stated that “a person can be guilty of willful and wanton conduct not only through an error in judgment, but also from a failure to exercise it.”

The trial judge’s decision was affirmed and the jury’s verdict of $3 million stands.

Alexandria Drakeford v. University of Chicago Hospitals, 2013 IL App. (1st) 111366 (June 28, 2013).

Kreisman Law Offices has been handling medical negligence cases and birth injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Chicago (Bridgeport), Chicago (Beverly), Chicago (Fulton River District), Chicago (Humboldt Park), Oak Lawn, Algonquin, Bellwood, Bolingbrook, Crystal Lake, Grayslake, Evanston, Evergreen Park, Glen Ellyn, Joliet, Aurora and St. Charles, Ill.

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