Articles Posted in Illinois Civil Procedure

On May 13, 2015, Millicent Mnookin suffered a sudden drop in oxygen followed by cardiac arrest while she was under general anesthesia for surgery at Northwest Community Hospital. She was taken to an intensive care unit but died just two weeks later.

Mnookin’s husband, Barry Mnookin, who was appointed executor of her estate, filed a lawsuit against several defendants, including Northwest Community Hospital and Dr. Syed Ahmed, who had been her anesthesiologist. The lawsuit alleged negligence by Dr. Ahmed as an employee of Northwest Community Hospital.

During the discovery process, her husband’s attorney sent Northwest Community Hospital requests for production of documents. The hospital filed a privilege log, identifying 24 documents that it asserted were privileged and protected from discovery under the Medical Studies Act. He moved for an in-camera inspection of all of the allegedly privileged documents. In response, the trial court asked Northwest Community to “redact the portion of each privileged document for which [Northwest] claimed privileged.” Northwest redacted the entire text of every document, leaving only the printed headline.
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According to the report of this case, the Illinois Appellate Court has reversed the dismissal of a medical malpractice case. The case had been dismissed by the trial judge on the ground that the plaintiff did not meet the requirement of filing the 90-day certificate of merit, which is required by Section 2-622 of the Illinois Code of Civil Procedure.

A doctor’s affidavit, which was filed late, should not have been enough to reject a medical malpractice lawsuit, the appeals panel ruled.

According to the Illinois Appellate Court opinion, the Cook County Circuit Court judge abused his discretion when he dismissed Earnest and Mildred Lee’s lawsuit against Rush Oak Park Hospital and Dr. Juan Cobo. The circuit court judge dismissed the case because they did not file their Health Professional’s Report within the 90-day window.
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Under the Illinois Code of Civil Procedure Section 2-1009, an Illinois plaintiff is allowed to voluntarily dismiss all or part of a claim without prejudice before a trial or a hearing begins. The statute allows this process upon payment of costs. Related to Section 2-1009 is Illinois Supreme Court Rule 219(e), which states, “A party shall not be permitted to avoid compliance with discovery deadlines, orders or applicable rules by voluntarily dismissing a lawsuit.”

Continuing, Rule 219 says: “In establishing discovery deadlines and ruling on permissible discovery and testimony, the court shall consider discovery undertaken (or the absence of same), any misconduct, and orders entered in prior litigation involving a party. . .”

In the case of Boehle v. OSF Healthcare System, a medical-malpractice lawsuit, the claim was for a failure to diagnose and treat a cancerous growth in the spine of the patient.
The alleged medical negligence led to the death of the plaintiff’s son.
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A medical malpractice lawsuit arising from the death of Jeannette Turner first resulted in a jury verdict of $22.1 million in this medical malpractice, wrongful death lawsuit. Sadly, Turner died the night before the jury’s verdict. According to the report of this Illinois Appellate Court case, her death transformed her medical-malpractice lawsuit into a survival claim for Joi Jefferson, Turner’s daughter and the special representative of her estate. As a result, Jefferson was unable to recover compensation that was awarded for any injuries Turner would have suffered in the future.

“Compensatory tort damages are intended to compensate plaintiffs, not to punish defendants,” Justice Mary Anne Mason wrote in the 23-page opinion. “We would run afoul of this principle if we allowed Jeannette’s estate to collect an award for future injuries Jeannette will no longer suffer. For this reason, we limit plaintiff’s recovery to compensation for injuries Jeannette suffered prior to her death.”

Turner had sued Mercy Hospital & Medical Center in 2006 claiming that the hospital’s doctors chose not to care for her after installing a tracheostomy tube in her windpipe. A blood clot developed, causing her to go into respiratory arrest. She suffered serious brain damage after she was without oxygen for 20-25 minutes.
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A medical malpractice lawsuit was filed in which the physician’s insurer, Illinois State Medical Inter-Insurance Exchange (ISMIE), refused to pay its $3 million policy limit to settle the case, which was brought by Alizabeth and Alvin Hana. The suit was filed against Drs. Albert and Joyce Chams and Chams Women’s Health Care. At the jury trial, the verdict for the Hanas totaled $6.1 million.

After ISMIE paid its policy limit plus post-judgment interest at 9% and an offset was applied based on a pretrial settlement with other defendants, the doctors were left personally liable for $1.35 million.

The Chamses assigned their bad-faith claim against ISMIE to the Hanas in return for a promise to not enforce the judgment. Then the Hanas sued ISMIE for allegedly breaching its duty to settle.
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This lawsuit arose out of a wrongful-death and medical malpractice case brought by the plaintiff, Lawanda Freeman. She was the special administrator of the estate of her deceased husband, Terrance Freeman. In her complaint against the defendant, Gayle R. Crays, M.D., she alleged that Dr. Crays was negligent in the treatment of Terrance’s cardiovascular disease and that negligence was the proximate cause of Terrance’s death. Right before the trial was set to start, the trial judge ruled that Freeman’s only expert witness was unqualified to offer any opinions on the issue of causation, thus creating a fatal evidentiary gap in the plaintiff’s case.

In response to the trial judge’s ruling barring this expert witness, Freeman moved to voluntarily dismiss her complaint. The trial judge granted the voluntary dismissal without prejudice.

Shortly thereafter, Freeman refiled her complaint. Upon learning that Freeman intended to disclose an additional or new medical expert witness to offer opinions on the issue of causation, Dr. Crays’ lawyers moved to adopt the rulings from the earlier case and bar any testimony of plaintiff’s newly disclosed expert opinion pursuant to Illinois Supreme Court Rule 219(e).
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The Illinois Appellate Court has ruled that Judith Simpkins’s amended complaint against St. Elizabeth’s Hospital was not timed-barred. The Illinois Appellate Court denounced discovery that includes the series of “routine practices” including boilerplate objections and “dump truck disclosures” as amounting to a “misuse of the discovery process” that “should not be accepted by our trial courts.”

A dissent was filed by Justice Richard P. Goldenhersh who said that the majority’s directions “invade the discretionary province of the trial court in determining discovery disputes. The circuit court on remand is perfectly capable of resolving these and similar discovery disputes without appellate mandate predetermining the exercise of their discretion.”

The appeals panel majority stated that discovery is not a tactical game, but rather a procedural tool for ascertainment of truth for purposes of promoting either a fair trial or a fair settlement. Ostendorf v. International Harvester, 89 Ill.2d 273 (1982). The Illinois Supreme Court rules regarding discovery represent our Supreme Court’s best efforts to manage the complex and important process of discovery. Sullivan v. Edward Hospital, 209 Ill.2d 100 (2004).
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In an unfortunate suicide by Keith Stanphill, a lawsuit was brought by Zachary Stanphill against a social worker, Lori Ortberg, and the hospital with which she was affiliated. She saw Keith Stanphill at Rockford Memorial Hospital just nine days before his suicide. Ortberg is a licensed clinical social worker.

During the jury instruction conference, the defendants requested and were granted leave to submit to the jury a special interrogatory. The special interrogatory followed the format approved by the Illinois Appellate Court in Garcia v. Seneca Nursing Home, 2011 IL App (1st) 103085.

The special interrogatory asked: “Was it reasonably foreseeable to Lori Ortberg on Sept. 30, 2005 that Keith Stanphill would commit suicide on or before Oct. 9, 2005?”
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In October 2016, we reported about this important case on the Illinois law on relation-back and how it applies in a medical malpractice lawsuit. In the underlying case of Sheri Lawler, as administrator who sued on behalf of Jill Prusak, the University of Chicago Medical Center and Advocate Christ Hospital and some doctors for medical malpractice in 2011, it was claimed that the doctors and the hospitals misdiagnosed Prusak’s central nervous system lymphoma. She unfortunately died in November 2013 while the case was still pending in the Circuit Court of Cook County, Ill.

The ultimate question in this Supreme Court case was whether an amended complaint was time-barred under the four-year statute of repose; 735 ILCS 5/13-212. While the case was pending, Lawler’s daughter, Jill Prusak, brought the case on behalf of her mother’s estate and asked the court to add a wrongful-death claim to the lawsuit. The Circuit Court judge rejected the motion and denied the Lawler family to amend the complaint saying it was time-barred under the four-year statute of repose.

However, the Illinois Appellate Court for the 1st District reversed that decision under the premise of the “amendments” or relation-back statute; 735 ILCS 5/2-616. The defendants appealed that decision to the Illinois Supreme Court.
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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.
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