Illinois Appellate Court Reverses Medical Malpractice Order Under Reimbursement Provision

The Illinois Appellate Court reversed a trial judge’s ruling in a medical malpractice case because the judge ruled that the defendants had no right of reduction on the jury’s verdict.  

In this case, Charles Perkey, as administrator of the estate of Leanne Perkey (his wife), sued the doctors and hospital because of a delay in diagnosing Leanne’s pancreatic cancer in a timely manner. 

After a jury trial, the verdict, which included $310,000 for Leanne’s medical expenses, was not reduced when the trial judge refused the defendants’ motion to reduce the judgment under Section 2-1205 of the Illinois Code of Civil Procedure. 

Section 2-1205 allows for 100 percent of medical expenses “which have been paid, or which have become payable to the injured person by any other person, corporation, insurance company or fund in relation to a particular injury.” This deduction is allowed up to 50 percent of the judgment (which is why the defendants asked for a deduction of $300,000, although Leanne’s total medical expenses were $310,000).

Charles argued that the $134,933.85 paid by BlueCross BlueShield of Illinois (BCBS) had a health insurance policy that required reimbursement. Under Section 2-1205(2), “such reduction shall not apply to the extent that there is a right of recoupment through subrogation, trust agreement, lien or otherwise.”

BCBS paid $134,933, so that the defendants argued they were entitled to a reduction of $175,066.15 (calculated by subtracting the amount of the BCBS claim, minus $134,933 from the $310,000 verdict for the medical expenses). The trial judge ruled that there was no right of reduction because BCBS had a right of recoupment.

The appellate court pointed out that the trial judge was wrong because the subsection of 2-1205(2) states that reduction shall not apply to the extent that there is a right of recoupment through subrogation.

The appellate court discussed the clear language in the statute as to the reduction of costs of medical malpractice actions by eliminating duplicative recoveries while still preventing a plaintiff from being subjected to an uncompensated loss should an insure assert its right to recover medical payments. The court concluded that the trial court erred in denying defendants’ motion to reduce the judgment under Section 2-1205.  The trial court’s order was reversed and returned to the trial judge for its reconsideration in line with the appellate court decision.

Perkey v. Portes, 2013 IL App. (2d) 120470 (April 17, 2013).

Kreisman Law Offices has been handling medical negligence, nursing home abuse cases and medical malpractice matters 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 37 years in and around Chicago, Cook County and its surrounding areas, including Chicago (Albany Park), Chicago (Avondale), Chicago (Back of the Yards), Glenview, Niles, Chicago (Little Italy), Burr Ridge, Arlington Heights, Joliet, Geneva, Lisle, Lincolnwood, Round Lake and St. Charles, Ill.

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