Cook County Jury Sides with Family of Deceased in Medical Malpractice Case Related to Delay in Treatment of Bladder Cancer

A Cook County jury returned a verdict of $314,000 related to the death of John Alexander. Mr. Alexander was diagnosed with bladder cancer in 2002. A CT scan in 2006 showed evidence of a recurrence of the bladder cancer. The CT was ordered by the defendant internist, Philip Kiley, M.D.

Dr. Kiley had requested that his staff forward the CT report by fax to the patient’s treating urologist. In addition, Dr. Kiley claimed that he advised Mr. Alexander to return to the neurologist for further treatment. However, the fax was never sent, and the Alexander family claimed there was never any instruction to follow up with the urologist in 2006. 

Dr. Jerrold Seckler, the urologist, did not learn of the cancer recurrence until a year later. Even with the recurrence of the cancer, Dr. Seckler chose not inform Mr. Alexander and did not initiate any treatment.

Not until 2008 was the diagnosis made of the recurrence of the cancer, and treatment started. By that time the parties all agreed  there was no hope for a cure. 

As a result, John Alexander died at age 65 in October 2009. 

Mr. Alexander was survived by his wife and three adult children. The family claimed that Alexander lost 4.5 years of lost time as a manufacturer’s sales representative.

The lawsuit filed by the family claimed that had Dr. Kiley sent the 2006 CT report as ordered, the urologist would have initiated treatment, and Mr. Alexander would have been cured.

Plaintiff’s medical expert maintained that the chance of cure in 2006 would have been 40-60%. Dr. Seckler and his corporation were sued in a prior lawsuit, but settled for $1.95 million. After that case settled, this cause of action against Dr. Kiley and his practice was filed.

The defendants argued that even if Dr. Seckler had received this CT report in 2006, the outcome would have been the same because Dr. Seckler would have concluded that the recurrence was a death sentence, just as he did in 2007. The defendants maintained that Dr. Seckler would have neither told the patient nor recommended further medical treatment.

The defendants’ experts insisted that the statistical chances of cure in 2006 were very slim (less than 10%), so that regardless of what might have been done in the year 2006, Mr. Alexander would have suffered and died from the recurrent metastatic bladder cancer. 

The defendants admitted that there had been a mistake by an agent of Dr. Kiley’s medical corporation regarding the CT report, and the trial judge directed a finding of negligence against the corporation at the close of the evidence.

The Alexander family attorney sought to include “loss chance” language in the jury instructions as an element of damages, while the defendants proposed Holton instructions (modified IPI 30.04.03, 30.04.04), which would have allowed the reduction of any award based upon the likelihood of plaintiff’s damages would have happened  in the absence of negligence.

The trial judge ruled that Illinois has not adopted a standard jury instruction or case law that would require the jury to reduce a verdict as in a case of an increased risk of future harm. The judge therefore allowed plaintiff to argue loss chance and allowed the defendants to argue to the jury that they may consider the likelihood of plaintiff’s damages in the absence of negligence. 

The defendants contended that there should be no verdict against Dr. Kiley, no award on the wrongful death claim and if any verdict for the Alexander family, it should be $250,500 on the survival count for the corporation’s directed negligence.There are post-trial motions pending. The defendants have sought to have the verdict set off by the prior settlement with Dr. Seckler and his corporation.

The attorneys for the Alexander family were David A. Axelrod and Jason M. Kleinman. 

The jury’s verdict of $314,000 against the Dr. Kiley corporation, Adult Care Specialist, only, was made up of the following damages:

  • $100,000 for survival pain and suffering;
  • $100,000 for medical expenses; and
  • $114,000 for lost wages.

The jury found that Dr. Kiley was not responsible for the injury and death of John  Alexander.    

Estate of John Alexander v. Dr. Philip J. Kiley, et al., No. 10 L 82 (Cook County, Illinois).

Kreisman Law Offices has been handling medical negligence cases, wrongful death matters and nursing home abuse 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 Rosemont, Merrionette Park, Chicago (Marquette Park, Garfield Park, Hegewisch, Lincoln Square), Plainview, Schaumburg, Lincolnshire and Lincolnwood, Ill.

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