Illinois Appellate Court Affirms Medical Malpractice Jury Verdict on Issues Relating to Prejudgment Interest and Trial Court Rulings on Evidence

The defendants, Gregg Coccaro, M.D., and Associated Saint James Radiologist, S.C., appealed from the $6.5 million jury verdict in this medical malpractice lawsuit. The appeal raised the following two issues:

(1) Did the trial court abuse its discretion in making a series of rulings related to evidence, argument and instruction that unfairly prejudiced defendants and thus warranted a new trial; and

(2) Did the trial court err in awarding prejudgment interest because the General Assembly’s 2021 amendment mandating prejudgment interest in personal injury and wrongful death cases (735 ILCS 5/2-1303(c) (West Supp. 2021)) violated the Illinois constitution?

As the appellate court answered both questions “No,” the appeals panel affirmed the judgment for the plaintiff.

This case was about Maya Cotton, 27, who discovered a pea-sized lump in her breast during a self-examination. She asked her mother and sister to feel it. They confirmed the lump and agreed that she should see a physician. She went to a community health clinic for a breast exam and a doctor there gave her an order for an ultrasound.

Cotton did not have a primary care physician, so her sister referred her to Dr. Charlotte Mitchell. In March 2009, Cotton went to Dr. Mitchell for the first time and told her about the lump in the breast. Dr. Mitchell performed a breast exam and also felt a lump. After reviewing Cotton’s medical history and family history, Dr. Mitchell gave Cotton an order for a mammogram and recommended that she go to St. James Hospital in Olympia Fields.

Cotton took the first available appointment and a radiology technician performed a mammogram; the technician informed Cotton that the mammogram and ultrasound were clear. Cotton was told to do a follow-up for a regular mammogram after the age of 35.

Dr. Gregg Coccaro, a radiologist, was the physician who interpreted Cotton’s mammogram and ultrasound. Cotton saw a gynecologist for her annual exam the following month. At that encounter, she discussed age, her family history, the mammogram and ultrasound results, and a possibility of the lump being fibroid tissue. The gynecologist told her to follow up next year with an annual appointment.

Several months later, she went back to Dr. Mitchell because of chest pain. Cotton had also noticed that the lump in her breast felt a little bigger. Dr. Mitchell told Cotton not to worry about the lump and confirmed that the mammogram and ultrasound results showed that they were clear.

Cotton continued to be concerned about the lump and saw another physician who sent her for an MRI. The results suggested cancer. This physician also sent her to get a biopsy, which came back positive for cancer.

In 2011, Cotton filed a medical malpractice action against several healthcare providers – including Dr. Mitchell, Dr. Cansler, the gynecologist, and Dr. Coccaro, alleging they chose not to correctly diagnose her breast cancer. Dr. Mitchell and Dr. Cansler settled before the trial and were dismissed as to the original action.

After the case had been voluntarily dismissed without prejudice and then refiled, there was a jury trial that resulted in a verdict against Dr. Coccaro and Associated St. James Radiologist in the amount of $6,528,000. The trial court entered a judgment on the verdict and on Cotton’s motion for prejudgment interest. Cotton filed a posttrial motion for an increase of a judgment award and also renewed her request for prejudgment interest. After the trial court made adjustments for setoffs and additional prejudgment interest, a judgment in the amount of $4,880,849.56 was entered against the defendants.

On appeal, the defendants argued that a series of trial errors deprived them of a fair trial because those errors, both individually and cumulatively, impeded their ability to present their theory that Dr. Cansler and Dr. Mitchell (not Dr. Coccaro) were the sole proximate cause of Cotton’s injury. Separately, they argued that the trial court abused its discretion in giving the jury a redundant issue instruction.

In granting the motion in limine, the trial judge reasoned that the evidence would not show that Dr. Cansler and Dr. Mitchell were “wholly responsible” for the delayed diagnosis. In the pretrial argument about the motion, the defense counsel acquiesced in the trial court about this evidentiary ruling, that the defendants would be allowed to assert and then argue evidence introduced to support the defense. Since no evidence was forthcoming and thus the defendants failed to object, the defendants forfeited the argument on appeal. In addition, the defense counsel chose not to raise the issue at trial and made no offer of proof. See Ill.R.Evid. 103(b)(3); Snelson v. Kamm, 204 Ill.2d 1, 23 (2003) (“When a motion in limine is granted, the key to saving for review an error in the exclusion of evidence is an adequate offer of proof in a trial court.”) As a consequence, the appellate court stated that it was left guessing as to what evidence was even excluded, and thus the court had no way to weigh prejudice stemming from that ruling if it was in fact erroneous.

The other issue that was argued by the defense was the 2021 amendment on prejudgment interest in personal injury and wrongful death actions. Illinois has allowed prejudgment interest where authorized by statute, contract or equity. See 815 ILCS 205/2 (West 2020) (allowing for prejudgment interest in actions on an “instrument of writing” and several other circumstances); 4220 Kildare, LLC v. Regent Insurance Co., 2020 IL App (1st) 181840, ¶51.

The rationale for prejudgment interest is multifold. The prejudgment interest award complements the compensatory purpose of civil law by ensuring that the plaintiff is compensated not just for the actual injury but also for the delay in being made whole. Numann v. Numann, 334 Ill.App.3d 305, 310 (2002) (“[T]he purpose of awarding prejudgment interest at the prime rate is to make the plaintiff whole by placing him in a position he would have been had he had the opportunity to use the funds wrongly retained by the defendant.”); McKenzie Dredging Co. v. Deneen River Co., 249 Ill.App.3d 694, 698 (1993) (“[T]he purpose of awarding prejudgment interest is to fully compensate a party when its money has been wrongfully withheld.”)

Prejudgment interest also ensures that a defendant is not unjustly enriched during that delay by retaining funds due to the plaintiff without cost: a defendant bears the full cost of its conduct. Haas v. Cravatta, 71 Ill.App.3d 325, 332 (1979) (“In our society, the use of money is worth money. Use carries with it the opportunity to deposit or rend it at interest or, in the alternative, the ability to avoid the borrowing of other funds and paying of interest. It would be unjust to ignore this economic fact of life.”). In short, the appellate court here stated that extending prejudgment interest, Illinois law now recognizes that the historic justifications for prejudgment interest in contract cases apply with equal force to personal injury and wrongful death cases. Providing a plaintiff with a more complete recovery and require the defendant to bare the full cost of his breach is consistent with basic fairness in contract or tort.

For these and other reasons, the appellate court affirmed the trial court’s judgment on both of these issues raised by the defendants.

Cotton v. Coccaro, et al., 2023 IL App (1st) 220788 (June 9, 2023).

Kreisman Law Offices has been handling medical malpractice lawsuits, wrongful death cases, Illinois appeals, birth trauma cases, and birth injury lawsuits 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 47 years in and around Chicago, Cook County and its surrounding areas, including Schaumburg, Schiller Park, Rosemont, River Forest, Oak Lawn, Forest Park, Crestwood, Orland Park, Chicago (Pilsen, Pullman, Back of the Yards, Near North Side, Uptown, Andersonville, Rogers Park, South Shore, East Side), Libertyville, Lemont, Mundelein, and Naperville, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.