Illinois Appellate Court Affirms Defense Verdict in Medical Malpractice Case Dealing with Admissions that are Evidentiary Not Judicial

Jodi Hall sued Dr. Roberto P. Cippola for medical malpractice, claiming that he had violated the applicable standard of care by not referring Jason Hall, Jodi’s husband, to a hospital emergency room. Jason had gone to St. Joseph’s PromptCare complaining of chest pain.

The receptionist at the urgent care center asked Jason to describe his symptoms. Her notes said: “Left upper chest pain, was moving a lot of metal today, ‘cramping in neck and arms sometimes.'”

The applicable standard of care called for sending a patient to the emergency room if his chest pain was “suspected to be of cardiac origin.”

“After examining Hall and administering an electrocardiogram, Cippola diagnosed chest wall pain – specifically, muscle strain in the chest. He prescribed aspirin and Darvocet and told him to follow up with his primary-care physician.” Jason Hall died of a heart attack a little more than three weeks later.

In affirming, the Illinois Appellate Court explained that Dr. Cippola’s statements did not qualify as judicial admissions. And even if they did, Jodi Hall forfeited this argument by not objecting to it at trial.

At this jury trial, the parties agreed that the standard of care for an urgent care physician was to refer the patient to the emergency department if the patient had chest pain that was “suspected” to be of cardiac origin. Also, the parties seemed to agree that the term “suspected” called for an objective standard: [W]hat a reasonable urgent care physician would have suspected under the circumstances if, in examining the patient, the physician had done everything he or she was supposed to do. According to plaintiff, she elicited testimonial judicial admissions by Dr. Cippola in her case-in-chief, that dispensed with the need he proved he violated the objective standard of care.

The plaintiff argued that Dr. Cippola admitted that when examining Jason Hall, he perceived several factors and that these factors were suspicious for a heart attack. Because of such admissions, which plaintiff characterized as judicial admissions, she claimed that the trial court erred by denying her motion for judgment notwithstanding the verdict.

The appellate court agreed with defendants that plaintiff had forfeited her theory of judicial admissions. The appellate panel found such a forfeiture because, at trial, plaintiff acquiesced to and, without objection, participated in a procedure – mainly, defendants’ presentation of witnesses to prove Dr. Cippola’s compliance with the standard of care – which was inconsistent with the theory that Dr. Cippola already had judicially admitted breaching the standard of care.

A case from the Second District, Bituminous Casualty v. Wilson, 119 Ill.App.3d 454 (1983), illustrates how a party can forfeit an objection to a procedure by participating in the procedure without objecting at the time.

In this case, plaintiff acquiesced to a procedure that was fundamentally inconsistent with her later asserted theory of judicial admissions. After her case-in-chief, in which according to plaintiff, Dr. Cippola judicially admitted breaching the standard of care, plaintiff acquiesced to and without objection, participated in a procedure that made sense only if Dr. Cippola’s observance or breach of the standard of care was still at issue.

Like Wilson in Bituminous Casualty Corp., plaintiff waited until post-trial proceedings to raise a legal theory – after forging ahead, without objection, in a trial that was inherently inconsistent with that theory. It was like waiting to see how the trial turned out before making an argument that the central issue in the trial really should not have been decided in the trial after all. Plaintiff’s theory of judicial admissions is therefore forfeited.

In this case, the dispositive issue was whether a reasonably careful urgent care physician would have suspected that Jason Hall was having a heart attack, given his medical history, known family history, age, symptoms, vitals and electrocardiogram. The experts testified differed on that issue, and it was up to the jury to decide which experts to believe. Accordingly, the trial court order of judgment in favor of the defendants was affirmed.

Hall v. Cippola, 2018 IL App (4th) 170664 (Oct. 16, 2018).

Kreisman Law Offices has been handling wrongful death lawsuits, misdiagnosis of heart attack cases, medical malpractice lawsuits and birth trauma injury cases for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Chicago Ridge, Chicago Heights, Country Club Hills, Countryside, Crete, East Hazel Crest, Elmwood Park, Northlake, Morton Grove, LaGrange Park, Hinsdale, Harwood Heights, Park Ridge, Chicago (Rosehill, Roscoe Village, Pill Hill, Pilsen, Princeton Park, Edison Park, Garfield Park, Bronzeville, Bucktown, West Loop, Wrigleyville, Hyde Park), Northbrook, Oak Brook, Oak Park, Oak Lawn, Lake Forest, Lincolnshire and Geneva, Ill.