A decision by a McHenry County, Ill., trial court dismissing the medical malpractice lawsuit on the grounds of res judicata bar on claim-splitting has been reversed by the Illinois Appellate Court. In this medical negligence lawsuit, the trial judge erroneously determined that only an express agreement from defendants could satisfy the “agreement in effect” exception to claim-splitting. The defendants’ lawyers, just before the jury trial would have started, implied that they would not object to a refiling by plaintiff as defense counsel suggested in that refiling was a method to preserve the plaintiff’s lawsuit without associated costs.
In 2008, the plaintiff Robert Kantner filed a multi-count medical malpractice lawsuit against defendants Ladonna Jo Waugh, M.D., Mercy Health System Corp., Mercy Harvard Hospital Inc., Mercy Center for Metabolic and Bariatric Surgery and Mercy Alliance Inc. Kantner’s lawsuit was based on permanent injuries he alleged he suffered following bariatric surgery. His lawsuit in different counts alleged (1) informed consent and (2) negligence.
In 2009, the defendants moved to dismiss the informed-consent claim and the trial court granted that motion. Kantner and his lawyers proceeded to trial on the negligence claim. Thus, the plaintiff spit off one count of his complaint leaving the other count to proceed.