Justia Lawyer Rating for Robert D. Kreisman

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A decision by a McHenry County, Ill., trial court dismissing the medical malpractice lawsuit on the grounds of res judicata bar on claim-splitting has been reversed by the Illinois Appellate Court. In this medical negligence lawsuit, the trial judge erroneously determined that only an express agreement from defendants could satisfy the “agreement in effect” exception to claim-splitting. The defendants’ lawyers, just before the jury trial would have started, implied that they would not object to a refiling by plaintiff as defense counsel suggested in that refiling was a method to preserve the plaintiff’s lawsuit without associated costs.

In 2008, the plaintiff Robert Kantner filed a multi-count medical malpractice lawsuit against defendants Ladonna Jo Waugh, M.D., Mercy Health System Corp., Mercy Harvard Hospital Inc., Mercy Center for Metabolic and Bariatric Surgery and Mercy Alliance Inc. Kantner’s lawsuit was based on permanent injuries he alleged he suffered following bariatric surgery. His lawsuit in different counts alleged (1) informed consent and (2) negligence.

In 2009, the defendants moved to dismiss the informed-consent claim and the trial court granted that motion. Kantner and his lawyers proceeded to trial on the negligence claim. Thus, the plaintiff spit off one count of his complaint leaving the other count to proceed.
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Mark Brown was a 39-year-old high school wrestling coach who began experiencing dizziness, neck pain, blurred vision and nausea while at a wrestling practice. He went to a local hospital, and paramedics transferred him to Banner Good Samaritan Medical Center where he was given a CT scan without contrast as part of a stroke workup.

The next day, Brown was discharged with a diagnosis of benign positional vertigo.

On the way home from the hospital, he suffered a massive stroke that caused severe brain damage. As a result, he lost vision and experienced difficulties with walking and speaking, among other problems. Brown now requires 24-hour-a-day care.
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In a split decision, the Kentucky Supreme Court has allowed a medical malpractice lawsuit to proceed against the defendant, a surgeon, who was alleged to have chosen not to inform a patient, the plaintiff, of a risk associated with a device implantation procedure. The trial judge dismissed the case for lack of a medical expert to support the plaintiff’s case.

In a 4-3 decision, the Kentucky Supreme Court agreed with the intermediate appellate court that overturned the trial court’s directed verdict. The claim brought by Jacqulyn G. Harrington had been dismissed. In her suit, Harrington had alleged that Dr. Alex Argotte chose not to warn her that the device, called an inferior vena cava (IVC) filter, which was designed to prevent blood clots, could break apart and become lodged in her lungs.

The trial judge threw out the case shortly after Harrington’s lawyer made an opening statement at trial saying that they were not going to call an expert witness because only “common sense” was required to determine whether Harrington had been properly informed of the risks of the procedure.
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The Florida Supreme Court has struck down a state law that capped noneconomic damages in medical malpractice injury lawsuits that stood at $1 million. The high court found that the law violates the equal protection clause of the Florida Constitution.

In this 4-3 decision, the Florida Supreme Court affirmed the Fourth District Court of Appeals’ 2015 decision that found that the cap, established by Florida statute, does not pass the rational basis test because the law arbitrarily reduces medical malpractice claimants’ rights to full compensation when there are multiple claimants and because it “does not bear a rational relationship” to its stated purpose of addressing an alleged medical malpractice insurance crisis in the state.

The decision relied heavily on the Florida Supreme Court’s 2014 decision in Estate of McAll v. United States that struck down the cap on noneconomic damages in wrongful death cases for many of the same reasons.
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After the jury found in favor of the treating physician, an appeal was taken by Zbigniew Adwent arguing that he was entitled to present testimony from a forensic document examiner in the lawsuit he brought against Dr. Richard B. Novak. The lawsuit alleged that Dr. Novak chose not to properly treat Adwent for back pain and other ailments. The Illinois Appellate Court for the First District stated that the examiner’s opinion that a page was missing from Adwent’s chart was conjecture.

“Mr. Adwent’s counsel clearly intended to use that testimony to suggest that Mr. Adwent’s medical records had perhaps been altered to cover the doctor’s inappropriate treatment of his patient.” The appeals panel also stated: “Such a use of this testimony would be completely speculative and highly prejudicial.”

The appeals panel also ruled that Adwent’s claim that the trial judge should have instructed the jury on contributory negligence also did not hold up because there was no reason to think doing so would have had any impact on the jury.
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Aaron Riedel, who was 28 at the time, went to Lodi Community Hospital emergency room complaining of back pain. He told the emergency department staff that he was taking an antibiotic to treat a MRSA infection. Riedel was later discharged from Lodi Community Hospital with a diagnosis of simple muscle strain.

The next day, he returned to the emergency room with worsening back pain. Again, Riedel informed the emergency department staff about the antibiotic he was taking and his MRSA history. The emergency room physician, Dr. Christopher Kalapodis, ordered a CT scan, which ruled out a kidney stone as the cause of the problem.

Riedel was then given a dose of morphine and an anti-inflammatory before he was again discharged. The next day however, he required additional treatment in the emergency room where he was diagnosed as having a spinal epidural abscess. Despite efforts through surgery and rehabilitation, Riedel was left a paraplegic.
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Sean Pedley was 43 when he developed a lump in his left thigh. An internist, Dr. Syed Danish, ordered an x-ray that did not signify or later lead to a diagnosis. Pedley’s mass grew and became painful over the next two years.

When a later biopsy of the mass was analyzed, it showed that it was synovial sarcoma, a soft-tissue cancer.

By the time the correct diagnosis was made, the soft-tissue cancer had metastasized to Pedley’s spine.
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Antonio Marrero, 32, was seen at the Walanae Coast Comprehensive Center, which is a federally qualified health center. He went to the facility complaining of a sore throat.

Marrero was diagnosed with having a peritonsillar abscess, which required evaluation by an otolaryngologist. A health center physician decided to evaluate Marrero under sedation and subsequently administered the drug Etomidate. Etomidate is a short-acting intravenous drug used in general anesthesia and for sedation of patients for short procedures.

In this case when Etomidate was given, Marrero lost consciousness and died. The cause of death was determined to be oxygen deprivation resulting in anoxia.
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The Maryland State Appellate Court has ruled that the trial judge was correct in deciding whether a patient’s negligence lawsuit, that of Yolanda Harris, would go forward against a women’s health clinic even after she dropped claims against her doctor, the agent to the clinic.

The Maryland Court of Specials Appeals said that Harris did not forfeit her right to a lawsuit against Women First OB/GYN Associates LLC when she voluntarily dropped all claims against the clinic’s physician, Dr. McMillan who was alleged to have committed malpractice in a hysterectomy procedure for Ms. Harris.

It was ruled that the judgment against Women First could stand even though the clinic’s negligence was based entirely on Dr. McMillan’s acts or omissions. The legal issue on appeal was whether the principal, Women First, could be held liable for the acts of its agent, Dr. McMillan, who had already been voluntarily dismissed.
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This case arrived at the Illinois Appellate Court as an interlocutory appeal that came about from the plaintiff Eric Owens’s lawsuit against the defendant hospital, Louis A. Weiss Memorial Hospital, and its doctors related to the care received by Owens at the hospital’s emergency room in 2011. He initially named Dr. Ahmed Raziuddin as a defendant in the lawsuit as the physician who treated him in the emergency room based on Dr. Raziuddin’s name appearing in the hospital’s records as the treating physician.

However, it turns out that Dr. Raziuddin filed a motion to dismiss the lawsuit claiming that he was not the doctor treating Owens and that a Dr. Seema Elahi was actually the treating physician. That motion was granted.

Owens then amended his complaint adding Dr. Elahi as a party defendant replacing Dr. Raziuddin. Dr. Elahi then filed a motion to dismiss arguing that the statute of limitations had expired.

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Contact Information
55 W Monroe St #3700
Chicago, IL 60603
Toll Free: 800.583.8002 Local: 312.346.0045 Fax: 866.618.4198 bob@robertkreisman.com
We serve the following localities: Cook County including Arlington Heights, Barrington, Berwyn Township, Chicago, Des Plaines, Glenview, Orland Park, Palos Park, Schaumburg, and Tinley Park; DuPage County including Downers Grove, Naperville, and Bolingbrook; Kane County including Aurora, Elgin and Geneva; Lake County including Waukegan; and Will County including Joliet.
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