Articles Posted in Trial Procedure

St. Luke’s Surgicenter-Lee’s Summit LLC appealed the circuit court’s judgment against St. Luke’s after a jury trial. The gist of the claim was for negligent credentialing. The claim had been brought by the plaintiff, Thomas E. Tharp and Paula M. Tharp, his wife. The jury found in favor of the Tharps and awarded damages. On appeal, the jury verdict was reversed by the Missouri Appellate Court.

“This case arises from a medical malpractice action against a surgeon operating out of St. Luke’s Surgicenter in Lee’s Summit, Mo. In December 2011, Thomas Tharp underwent a laparoscopic cholecystectomy — a surgical procedure to remove his gallbladder.”

The surgeon who handled the gallbladder removal applied for staff privileges at St. Luke’s in 2005 and renewed his privileges several times thereafter. Among other requirements, St. Luke’s required physicians applying for staff privileges to disclose whether they had ever been sued for professional malpractice and, if so, the number of lawsuits they had defended.
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The Illinois Supreme Court was asked to determine whether this special interrogatory given to the jury in this lawsuit was in proper form and whether the jury’s answer to the special interrogatory was inconsistent with its general verdict in the plaintiff’s favor.

The Circuit Court of Winnebago County held that the jury’s answer to the special interrogatory was inconsistent with the general verdict and entered judgment in favor of the defendants. The Illinois Appellate Court reversed, 2017 IL App (2d) 161086, finding that the special interrogatory was not in proper form and, therefore, should not have been given to the jury.

In addition, the court determined that because the special interrogatory was ambiguous, the jury’s answer was not necessarily inconsistent with its general verdict. For those reasons, the Illinois Supreme Court affirmed the judgment of the appellate court.
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On May 6, 2019, the Illinois Appellate Court overturned a $25,000 settlement between a patient and doctor and revived a potentially far greater contribution claim brought against the doctor by the patient’s employer.

The original lawsuit stems from a Federal Employer’s Liability Act (FELA) case wherein Antwon M. Ross sued the Illinois Central Railroad for damages when he was injured. Ross was a former freight conductor when he sued the Illinois Central Railroad alleging that he injured his head, neck, and back when he fell trying to board a train in January 2013.

Illinois Central then filed its claims against Dr. Sarmed G. Elias for medical malpractice alleging that his treatment was the cause of worsening injuries to Ross.
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The State Supreme Court of Rhode Island has held that a trial judge improperly ordered a new trial based on the judge’s conclusion that a jury had misjudged the credibility of a witness. In this case, Stacia Aptt filed a lawsuit against Dr. Michael Baaklini alleging that the doctor had misdiagnosed her symptoms. He diagnosed her with a fatal kidney condition; she stated that this diagnosis caused her to suffer severe emotional distress.

At trial, the jury found in favor of the doctor. Aptt moved for a new trial. The trial judge, finding that the jury had come to the incorrect conclusion based on Aptt’s hyperemotional state while testifying at trial, ordered the defendant to agree to additur (added damages) or face a new trial on damages. The defendant appealed.

The State Supreme Court vacated and remanded the case noting that it is the fact finder’s duty to decide whether trial testimony is credible.
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In this medical malpractice lawsuit, injuries were suffered by the plaintiff, Lisa Swift, during a 2010 laparoscopic hysterectomy by the defendant Dr. David J. Schleicher. During this surgical procedure, Dr. Schleicher perforated Swift’s small bowel with three through-and-through holes. The doctor chose not to diagnose the perforations until four days after the surgery. Swift developed sepsis, needed a bowel resection surgery and then suffered additional complications that required hospitalization and home health care.

In addition to Dr. Schleicher, Swedish American Health System Corp. and its related companies were also made defendants. These defendants admitted that they caused the injury but argued that the injuries were not the result of negligence. At the end of the jury trial, the jury agreed with defendants and found in favor of them and against Swift.

The plaintiff Swift filed a motion for a new trial, which was denied by the trial court. As a result, Swift took an appeal arguing that the trial judge committed reversible error by (1) allowing evidence that plaintiff’s expert, Dr. Robert Dein, caused a bowel injury in 1989; (2) allowed cumulative defense testimony; and (3) declined to find the verdict against the manifest weight of the evidence.
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A neuropathologist, Dr. Meena Gujrati, and her employer, Central Illinois Pathology, were named as defendants in a medical-malpractice lawsuit brought by Rebecca Gapinski who alleged that this doctor misdiagnosed Daniel Gapinski’s brain tumor as being benign.

Right before the start of the jury trial, Dr. Gujrati requested permission to proceed with a substitution of counsel. The attorneys for the Gapinski family objected, arguing that the motion was tardy because the case had been pending for three years. However, the Gapinski family accepted a compromise, and the trial judge ruled that the defendants could have separate counsel, separate pleadings and separate experts if they were otherwise barred from double-teaming at trial.

The verdict for Gapinski was $1,727,409. On appeal, Dr. Gujrati and Central Illinois Pathology argued, among other things, that the judge erred in barring “dual representation.”
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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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In this medical negligence case, the Illinois Appellate Court took an interlocutory appeal on an issue of first impression regarding the application of the Petrillo doctrine on a unique set of facts. The plaintiff, Jacqueline McChristian, who was injured by a podiatrist, Dale Brink, DPM, claimed that the trial court violated the Petrillo doctrine when it permitted ex parte communications between McChristian’s treating podiatrist and the defense counsel of Performance Foot and Ankle Center LLC, which was a defendant in the case in which the treating podiatrist is a member.

The court was asked to answer a question of first impression that was whether defense counsel, who represents the defendant Dr. Dale Brink and the defendant Performance Foot and Ankle LLC, is prohibited from conducting ex parte communications with McChristian’s treating podiatrist, Dr. Timothy Krygsheld, who is also a member, and in the control group of the defendant.

The plaintiff argued that under the Petrillo doctrine, ex parte communications are barred between plaintiff’s treating podiatrist and defense counsel, in order to preserve the patient’s trust and confidence in her podiatrist, as well as to honor the podiatrist’s duty as a fiduciary to refrain from helping the patient’s legal adversary.
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Paulette Elher filed a medical malpractice lawsuit against Dr. Dwijen Misra Jr. M.D., seeking damages alleging that Dr. Misra accidentally clipped her common bile duct while performing a laparoscopic cholecystectomy. Elher wanted to have the court admit expert testimony where it would be stated that clipping a patient’s common bile duct during an otherwise uncomplicated laparoscopic cholecystectomy was a breach of the standard of care. She also claimed that negligence could be inferred from the improperly clipped bile duct under the doctrine of res ipsa loquitur.

The defendants in this case moved to exclude Elher’s proposed expert’s testimony on the ground that, because it was not supported by peer-reviewed literature or the opinions of other physicians, it did not meet the standards for reliability under the Rules of Evidence Section 702. Rule 702 is the rule of evidence regarding testimony by experts. The rule is in place to assist the jury or court in understanding scientific, technical or other specialized knowledge and to understand the evidence or to determine a fact in issue. A witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise.

The court of appeals in Michigan held that the trial judge had abused its discretion by incorrectly applying Rule 702 to exclude the testimony of plaintiff’s expert witness because the factors that the trial court considered were not relevant to the expert’s testimony, which did not involve an unsound scientific methodology or questionable data. Rather, the majority concluded that injuring the common bile duct violated the applicable standard of care called for a value judgment derived from training and experience. The majority agreed, however, with the trial court that the doctrine of res ipsa loquitur did not apply to plaintiff’s claim. The dissent agreed with the majority’s analysis of the res ipsa loquitur issue but concluded that the trial court did not abuse its discretion by excluding the testimony of plaintiff’s expert regarding the standard of care because no basis had been offered for the testimony apart from the expert’s own personal views. The defendants sought leave to appeal to the Michigan Supreme Court.

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Kent Higgins inhaled chlorine gas at the Holiday World Amusement Park when the ride he was on malfunctioned. Higgins suffered chronic asthma and reactive airways dysfunction syndrome, or RADS, as a result of the alleged negligence of the defendant, Koch Development, the owner of Holiday World Amusement Park.

Higgins, the plaintiff, hired a causation expert physician, but the doctor was barred. The issue was whether this expert could be substituted with his treating pulmonologist to act as his expert under the guidelines of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

The trial judge barred Higgins’s causation expert. He then offered up his treating pulmonologist to act as his expert on causation. The district court judge found that the treating physician was unqualified to opine on the effect chlorine gas has on the human pulmonary system. The basis of the barring was under the Daubert criteria and methodology, which was found to be too uncertain to determine its reliability.

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