The Illinois Appellate Court for the 2nd District issued a Supreme Court Rule 23 Order in July 2017 that affirmed the jury’s finding in favor of Advocate Condell Medical Center in a medical malpractice death case. The court delivered its opinion on Oct. 4, 2017.
In this case, the appeals panel found issue with neither the trial judge’s admission of expert testimony nor a hospital lawyer’s ex parte conversation with a witness. The opinion echoes and makes legal precedent of the finding of a Supreme Court Rule 23 Order that the appeals court issued in July 2017.
Judith Caldwell, the daughter of Jeanette M. DeLuca, filed a medical malpractice lawsuit in March 2014 in Lake County, Ill., concerning the wrongful death of her 92-year-old mother who choked on food and died while receiving medical care from Advocate Condell Medical Center in Libertyville, Ill. Caldwell claimed in her lawsuit that Condell chose not to adequately monitor DeLuca after her procedure on April 23, 2013 and allowed her to eat without ensuring that her dentures were in her mouth and failed to ensure that she was sufficiently recovered from surgery to eat.
The appellate court’s decision removed all issues brought before the court, including arguments that the trial court erred in allowing two expert witnesses to testify that DeLuca had both sets of dentures in her mouth when she choked and died at Condell and the belief that an ex parte meeting between Condell’s lawyers and one of the hospital’s former employees violated an Illinois doctrine found in the case of Petrillo v. Syntex Laboratories, 148 Ill.App.3d 581 (1986).
One of the Petrillo’s prohibitions holds the defense counsel should not communicate with the plaintiff’s health-care provider outside of formal discovery. Caldwell did not raise a Petrillo objection before or during trial, but she did bring up the issue before the court on appeal. The opinion of the court was that generally to object to an error prior to appeal results in forfeiture, but the court can consider a forfeited argument if the issue is a legal one and is fully briefed by the parties on appeal.
The 2nd District panel found that a conversation between Condell’s lawyers and former Condell nurse Kathleen Likosar, who was involved in DeLuca’s care, was not improper under the ex parte doctrine.
“It is clear that no Petrillo violation occurred when Condell’s counsel spoke to Likosar prior to her evidence deposition.”
The appeals panel wrote that an exception to Petrillo allows a hospital’s attorneys “to communicate ex parte with health-care employees who were specifically alleged to be negligent and whose negligence the plaintiff sought to impute to the hospital.”
There also was an argument raised by Caldwell on appeal that dealt with two expert witnesses for the hospital. One was an internist and the other a nurse. Caldwell did not challenge the experts’ qualifications in the case but instead argued that their opinions were “speculative.”
The appeals panel found that the trial court did not err in allowing these experts to testify as expert witnesses for Condell because their testimony was based on the medical records in the case, their professional expertise and the deposition testimony of other witnesses.
Accordingly, the jury’s verdict in favor of the defendant, Advocate Condell Medical Center, was affirmed.
Judith Caldwell v. Advocate Condell Medical Center, 2017 IL App (2nd) 160456.
Kreisman Law Offices has been handling medical malpractice lawsuits, wrongful death cases, traumatic brain injury lawsuits and hospital negligence 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 40 years in and around Chicago, Cook County and its surrounding areas, including Libertyville, Calumet City, Deerfield, Arlington Heights, Itasca, Long Grove, Orland Park, Tinley Park, University Park, Chicago (Pilsen, Back of the Yards, Lakeview, Lincoln Square, West Rogers Park, Englewood), Flossmoor, Elmhurst and Schiller Park, Ill.
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