Illinois Appellate Court Finds That Damages Cannot Be Reduced for Written-Off Medical Expenses

The Illinois Appellate Court for the 4th District affirmed in part, reversed in part and remanded a decision from the Winnebago County Court.

Thomas Rossi, M.D., performed gastric bypass surgery on Cynthia Overstreet. Following that surgery, Overstreet complained of vomiting and nausea. She was hospitalized with neurological symptoms and later went into a coma and never recovered. She suffered from Wernick’s encephalopathy, a swelling of the brain caused by thiamine deficiency.

Overstreet died seven years later. The executor of her estate, First Midwest Bank, filed suit against Dr. Rossi for negligence. After a jury trial, Dr. Rossi was found liable and awarded damages for lost wages, medical bills, loss of normal life, grief, sorrow and mental suffering.

Following post-trial motions, the trial court reduced the damage award by $1,126,630.83 for medical expenses written off by healthcare providers under §2-1205 of the Code of Civil Procedure, granted prejudgment interest on damages and denied the motion for a new trial.

Both parties appealed. The estate sought additional damages for disfigurement and to her son for loss of society, and asserted a trial court erred in reducing the damages due to medical expenses written off by healthcare providers.

Dr. Rossi argued that the trial court erred in denying his motion for a new trial and that no prejudgment interest should have been awarded.

The appellate court first addressed the claims for disfigurement, beginning by noting that they found “no case that has ever approved of awarding disfigurement damages to a comatose victim,” noting that such a victim suffers none of the normal injuries from disfigurement such as loss of employment or relationship opportunities, or the need for additional surgery. In addition, as there is no evidence that Overstreet’s son’s behavioral or emotional issues began prior to his mother’s coma and death, the appellate court found the circuit court did not err in denying the damages for loss of society.

The appellate court also found that the trial court did not err in denying Rossi’s motion for a new trial or in awarding prejudgment interest.

However, the appellate court did find the trial court erred in reducing the damage award for medical expenses written off by healthcare providers. Section 2-1205 of the Code of Civil Procedure addresses possible reductions in the recovery amount, and notes that, “Such reduction shall not apply to the extent that there is a right of recoupment through subrogation, trust agreement, lien, or otherwise.”

The appellate court noted that the Second District deferred in their judgment on this issue, but concluded that they were in error. The appellate court found the plain language of §2-1205 does not allow for a defendant to reduce a judgment by an amount that was neither paid to medical providers nor payable to the plaintiff. The appellate court reversed this decision and remanded with instructions to reduce the judgment by only $296,069.17, the amount paid by Overstreet’s insurance company.

Accordingly, the appellate court therefore affirmed in part, reversed in part, and remanded the case with instructions to the circuit court.

First Midwest Bank v. Thomas Rossi, M.D., et al., 2013 IL App (4th) 220643.

Kreisman Law Offices has been handling medical malpractice lawsuits, wrongful death cases, appellate court matters, and birth trauma injury lawsuits for more than 48 years in and around Chicago, Cook County and its surrounding areas, including Brookfield, Glendale Heights, Carol Stream, Oak Brook, Willowbrook, Burr Ridge, Hickory Hills, Burbank, Evergreen Park, Franklin Park, Evanston, Chicago (Lincoln Square, Logan Square, Little Village, Bridgeport, Bronzeville, South Side, South Chicago, West Loop), Elmhurst, Villa Park and Lombard, Ill.

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

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