Illinois Appellate Court Calls Settlement in Medical Malpractice Case Not in Good Faith

On May 6, 2019, the Illinois Appellate Court overturned a $25,000 settlement between a patient and doctor and revived a potentially far greater contribution claim brought against the doctor by the patient’s employer.

The original lawsuit stems from a Federal Employer’s Liability Act (FELA) case wherein Antwon M. Ross sued the Illinois Central Railroad for damages when he was injured. Ross was a former freight conductor when he sued the Illinois Central Railroad alleging that he injured his head, neck, and back when he fell trying to board a train in January 2013.

Illinois Central then filed its claims against Dr. Sarmed G. Elias for medical malpractice alleging that his treatment was the cause of worsening injuries to Ross.

Ross and Dr. Elias entered into a $25,000 settlement that resulted in Dr. Elias’s dismissal as a third-party defendant in the case. The circuit court judge approved the settlement in July 2018. However, the railroad appealed from that dismissal order.

The Illinois Appellate Court for the 1st District found that the settlement between Ross and Dr. Elias was not entered in good faith and that the judge’s ruling was an abuse of discretion.

The appeals panel took issue with the small size of the settlement in comparison to the “undeniably damning evidence” in that Dr. Elias’s treatment of Ross deviated from the standard of care — a point Ross’s own medical expert acknowledged in a deposition.

According to the majority opinion written by Justice Mary L. Mikva, the settlement did not cover all of the medical bills Ross owed Dr. Elias: “[He] could recover through his liens many multiples of the settlement amount he paid to Mr. Ross.” According to the opinion, Ross owed Dr. Elias around $657,000 in unpaid medical bills as of March 2018.

Dr. Elias would pay the $25,000 settlement out of his own pocket, even though he had a $1 million insurance policy “and there is no reason to believe that he did not pay a substantial judgment.”

Justice Mikva continued, “Mr. Ross had a potential claim of several million dollars. Against all of this, a finding that a settlement of $25,000 was entered into in good faith was an abuse of discretion.” In addition, Justice Mikva wrote that the settlement between Mr. Ross and Dr. Elias moved the dispute further from resolution. “If he hopes to pay what he owes Dr. Elias, Mr. Ross cannot agree to settle with Illinois Central for anything less than the amount of the doctor’s outstanding liens. And because the portion of those liens the railroad insists is attributable to Dr. Elias’s deviations from the standard of care and not to any negligence on its part pales in comparison to the $25,000 Dr. Elias paid to extricate himself from this case, the remaining case between Mr. Ross and Illinois Central has become increasingly difficult to settle.”

Because the settlement was contingent on a good-faith finding, the appeals panel ruling ends the settlement. Justice Mikva outlined Dr. Elias’ treatment of Ross: “two vertebroplasties—which is a spinal injection procedure—a fusion of the T12 and L1 vertebrae, multiple nerve blocks for pain control, steroid injections, dozens of office visits, and 173 physical therapy sessions.”

Ross cannot return to work and receives disability payments. Illinois Central asserts that Dr. Elias’ treatments “significantly aggravated” Ross’ injuries and that he would have recovered on his own and been able to return to work.

Earlier in 2018, before the settlement was reached, Illinois Central served both Ross and Dr. Elias with discovery requests for all communications between them. Dr. Elias argued those communications were shielded under attorney-client privilege. That privilege is waived if the litigant shares the information with a third party. But that waiver can be blocked if the parties can prove a common interest in the litigation exists between them.

That’s what the circuit court judge found when she ruled in favor of Dr. Elias but the 1st District disagreed, finding the common-interest exception cannot be invoked by Dr. Elias because he did not sign any kind of joint defense agreement with Mr. Ross. “Even when a common interest exists between parties, it is clear to us that the client must, at the time of the disclosure, have an agreement with the receiving party that that party will treat the information as privileged.”

Accordingly, the settlement agreement and order has been vacated by the Illinois Appellate Court and the matter will continue with Dr. Elias being a third-party defendant.

Antwon M. Ross v. Illinois Central Railroad Company, 2019 IL App (1st) 181579.

Kreisman Law Offices has been handling medical malpractice lawsuits, catastrophic injury cases, birth trauma injury lawsuits and hospital negligence 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 Oak Forest, Blue Island, South Holland, Calumet City, Berwyn, Skokie, Des Plaines, Lemont, Romeoville, Naperville, Hinsdale, Wheaton, Geneva, St. Charles, Gurnee, Lake Zurich, Lynwood, Chicago (Beverly, Washington Heights, Morgan Park, Avalon Park, Hyde Park, Wrigleyville, Loyola Park, Uptown, Pulaski Park, Edgewater, Midway, Garfield Ridge, Mount Greenwood), Robbins, Alsip, Harvey, Dolton, Maywood and Franklin Park, Ill.

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