Articles Posted in Trial Procedure

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A medical malpractice lawsuit was filed by Daniel R. Hemminger, who sued the defendants Jeffrey LeMay, M.D. and Sterling Rock Falls Clinic Ltd. for damages related to the death of his wife, Tina.  The lawsuit alleged that the defendants, in choosing not to correctly diagnose and treat Tina’s cervical cancer in a timely manner, was the cause of her death by lessening her chance for survival. 

This is called the lost chance doctrine supported by the case of Holton v. Memorial Hospital, 176 Ill.2d 95 (1997) in which the Illinois Supreme Court held that “to the extent a plaintiff’s chance of recovery or survival is lessened by the malpractice, he or she should be able to present evidence to a jury that the defendant’s malpractice, to a reasonable degree of medical certainty, proximately caused the increased risk of harm or lost chance of recovery.”

In this case, the trial judge granted the defendants’ motion for a directed verdict after the close of plaintiff’s case alleging that plaintiff failed to present evidence sufficient to establish that Dr. LeMay’s negligence proximately caused Tina’s death under a lost chance of survival.  The plaintiff appealed.

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The plaintiff in this case, Lee Ann Sharbono, filed a lawsuit claiming medical negligence against the defendant Dr. Mark Hilborn, a board-certified radiologist. In the lawsuit it was alleged that Dr. Hilborn had chosen not to timely diagnose Sharbono’s breast cancer.  After the trial, the jury found for Dr. Hilborn and against Sharbono.  She filed post-trial motions for judgment notwithstanding the verdict, for new trial and for rehearing, all of which the trial court denied. This appeal was taken.

In August 2006, Sharbono was diagnosed with breast cancer in her left breast.  It had spread to her nearby lymph nodes under her left arm. She underwent extensive treatment including a modified radical mastectomy of her left breast.

The lawsuit in this case arose out of a diagnosis that was made by Dr. Hilborn in November 2004.  Sharbono, who was then 39 years old, went to see her primary care physician because she was experiencing fatigue, weight gain, aches and pain.  The doctor ordered a screening mammogram. That mammogram and an ultrasound were claimed to have been misinterpreted.

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A recent count showed that more than 25,000 transvaginal mesh cases are pending in the Southern District of West Virginia.  These cases involve the vaginal mesh manufacturers C.R. Bard, Inc., American Medical Systems, Inc., Boston Scientific Corp., Ethicon, Inc., Coloplast Corp. and Cook Medical, Inc.

There are several thousand more cases pending in state court cases around the country, including the states of New Jersey, California, the Commonwealth of Massachusetts and Minnesota.  The first round of bellwether trials involving the transvaginal mesh manufacturers Bard, Boston Scientific and AMS are being scheduled in the Southern District of West Virginia. These cases will be tried in November 2013, as well as February and April 2014.  These will be the first of the bellwether trials involving these three defendants.

There have been other bellwether trials against the defendant C.R. Bard. In the first case, Cisson, et al. v. C.R. Bard, Inc., the jury returned a verdict in favor of the plaintiff, Donna Cisson. In a second case involving C.R. Bard, a settlement was reached with the injured party.

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The Illinois Appellate Court reversed a trial judge’s ruling in a medical malpractice case because the judge ruled that the defendants had no right of reduction on the jury’s verdict.  

In this case, Charles Perkey, as administrator of the estate of Leanne Perkey (his wife), sued the doctors and hospital because of a delay in diagnosing Leanne’s pancreatic cancer in a timely manner. 

After a jury trial, the verdict, which included $310,000 for Leanne’s medical expenses, was not reduced when the trial judge refused the defendants’ motion to reduce the judgment under Section 2-1205 of the Illinois Code of Civil Procedure. 

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The Illinois Appellate Court for the Fourth District reversed a jury’s verdict for defendants, which included OSF Healthcare System, in the Circuit Court of McLean County.  The case centered around an injury and subsequent death of a 3-year-old boy, Christian Rivera, in 2003. The jury trial was held in July 2011. 

During the trial, the family of Christian offered its expert witness, Dr. Finley Brown, to testify as a medical expert in family practice.

The defendants were allowed by the trial judge to cross-examine Dr. Brown for the issue related to his annual earnings as an expert witness for an 8-year period. Plaintiff’s counsel had argued against the broad timeframe, but the trial judge denied plaintiff’s motion to limit the timeframe. Defense used this testimony to say the jury that Dr. Brown was a “go-to guy for expert opinions.”

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