Articles Posted in Illinois Civil Procedure

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Leona and Perry Smith were the co-guardians of the person, but not of the estate, of a profoundly disabled son, Perry Powell. A medical malpractice case was first initiated by Leona Smith related to the death of her husband, Perry Smith, which ended because of alleged legal malpractice. The issue in this appellate court case was whether an attorney-client relationship with Perry Powell, the disabled son of the decedent, was available. 

The legal malpractice case was brought in the name of a public guardian and was later dismissed. At the trial court level, the judge concluded that the lawyers hired by Leona owed no duty to Perry Powell, the disabled son of the decedent.

In reversing, the appellate court said, “An attorney litigates a wrongful-death action for the exclusive benefit of the next-of-kin and owes that party a duty even though the next-of-kin did not execute a retainer agreement with the attorneys.”

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A breach of contract case was interrupted by the death of the individual plaintiff, Theodore Sarche. Mr. Sarche’s death led to his law firm moving to appoint a special representative under Section 2-1008(a) of the Illinois Code of Civil Procedure.

An affidavit was later supplied by Sarche’s sole surviving child, Michael Sarche, who attested that he authorized his father’s law firm to continue prosecuting the case against the defendant. 

Michael Sarche did not open a probate estate because his father had limited assets. Michael was living in Colorado. Based on Michael’s instructions, the law firm moved to substitute Carol Mohica, a paralegal at the law firm, to act as plaintiff under the special representative piece of that statute.

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The Illinois Supreme Court heard arguments in a car accident case regarding a lawsuit brought against a deceased motorist. Two years after a 2008 car crash, the plaintiff, Sandra Relf, filed a personal injury lawsuit against a motorist she believed was negligent in causing her injuries.

The issue in this case was that the defendant, the man that Relf sued, had died three months after the car crash. Under Illinois law, there is a procedure for the event of the death of a plaintiff or defendant during the course of the legal process. In this case, the trial court ruled in favor of the defendant, finding that Relf had not properly sued the correct party, the estate of the decedent. But on appeal, the Illinois Appellate Court First District overturned that order.

On review by the Illinois Supreme Court, the plaintiff contended that she was unaware that the defendant, Joseph Grand Pre Jr., had died. Once Relf learned of the death of Pre, she amended the complaint and named an employee of the plaintiff’s lawyer’s staff as the special administrator of the Pre estate. However, as a matter of fact, Pre’s family had opened a probate estate months before Relf filed the original lawsuit. The defendant argued that Relf should have known by a simple on-line search of the Cook County court system that the defendant, Pre, had died and opened up a probate estate.

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On Sept. 21, 2010, Wayne Vroman claimed that his car was hit by a vehicle owned by Midwest Groundcovers, LLC, and driven by Judy Wenciker, a Midwest employee.  Two months later, Vroman filed a negligence lawsuit against Midwest and Wenciker. 

On Jan. 10, 2011, the defendants’ lawyer filed a motion to preserve certain evidence in the case. Submitted as evidence for this hearing were records of e-mail correspondence between the defendants and plaintiff’s counsel in which plaintiff’s counsel asserted that an agent of the defendants had stipulated to liability.

In response, the defendants maintained that the person who had allegedly stipulated to liability had no authority to do so. The defendants also said that the person was an agent for Midwest’s insurance carrier, Grinnell Mutual Reinsurance Co. The defendants’ motion to preserve the evidence was granted. 

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The lawsuit brought by Patricia Emrickson against Fernando Morfin was dismissed with prejudice because Ms. Emrickson’s attorney relied on an online search service that had inaccurate information about the current address for the defendant, Mr. Morfin. Under Illinois Supreme Court Rule 103(b), a suing plaintiff has a duty to use reasonable diligence in serving a defendant with the complaint.

In this case, the lawsuit was filed by Ms. Emrickson just a short time before the two-year statute of limitations had run out. Although the lawsuit was filed in a timely fashion, Mr. Morfin was not served immediately with the complaint, which alleged that Ms. Emrickson was injured in a car accident. It took 13 months before Mr. Morfin was finally served with a summons.

According to the Illinois Appellate Court, Ms. Emrickson chose not to use reasonable diligence in having Mr. Morfin served before the statute of limitations expired, opening the way for Mr. Morfin to dismiss the case with prejudice under Rule 103(b).

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The Illinois Supreme Court has approved a policy allowing jurors to question witnesses in civil trials. The new rule, Illinois Supreme Court Rule 243, takes effect July 1.
According to Chief Justice Thomas L. Kilbride, “Based on the comments of those who have used or seen the procedure at trial, such a rule enhances juror engagement, juror comprehension and attention to the proceeding.”
In the past, the state Supreme Court prevented the practice of allowing jurors to ask questions. The new procedure will let the trial judge to meet with attorneys out of earshot of the jury and allow an attorney to object to any jury questions. The trial judge then will decide whether to allow the question, modify or exclude the questions.

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A recent Illinois Appellate Court decision provided additional clarification regarding the admissibility of photographic evidence. At issue was whether or not a judge had correctly allowed photographs taken at the scene of an accident to be admitted into evidence during a Cook County personal injury trial. The appellate court ruled that judge had and upheld the jury verdict in Patricia Williamson v. Luis Morales, 2012 IL App. (1st) 110324-U.

Williamson involved a 2006 car accident in which the defendant Luis Morales rear-ended the plaintiff Patricia Williamson’s vehicle. And while Morales admitted to having caused the accident, there was some debate as to the extent of Williamson’s injuries. Williamson refused treatment by paramedics at the accident scene, but then did head to the Christ Medical Center Emergency Room just one hour later. And even though her x-rays did not show any fractures, she continued to experience pain and treatment with a chiropractor for four to five months following the accident.

When Williamson brought her personal injury claim against Morales he denied that the car accident was responsible for the extent of Williamson’s injuries and her lost time from work. And when Williamson’s attorney attempted to produce photographs from the accident scene as a way to demonstrate the severity and nature of the car accident, Morales’s attorney objected on the basis that they were not relevant and could not be introduced unless in conjunction with expert testimony. The court agreed and stipulated that the photographs could not be introduced unless the defendant first opened the door to their submission.

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Illinois medical malpractice lawsuits rely on the assumption that a doctor, nurse, or facility violated the appropriate standard of care; therefore, all medical malpractice lawsuits require parties to establish the jury with a concept of what was in fact the acceptable medical standard of care. The jury is then instructed as to how to analyze the medical malpractice case when making decisions regarding the standard of care. Therefore, if a jury were given incorrect instructions on how to evaluate the medical standard of care, then it might affect the jury’s reasoning and eventual verdict.
The Illinois medical malpractice lawsuit of Jane Studt et al. v. Sherman Health Systems, No. 108182 was brought before the Illinois Supreme Court in order to determine whether the Illinois jury was given the incorrect version of Illinois Pattern Jury Instruction 105.01. In an unexpected twist, the Supreme Court held that the jury did receive the wrong jury instruction version, but still upheld the jury’s original verdict.

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A Cook County hospital infection decision by the Illinois Appellate Court clarifies what types of medical records are discoverable. The court ruled in Joseph Zangara and Wayne Dziamara v. Advocate Christ Medical Center, Paul Gordon, et al., Nos. 1-09-1911 and 1-09-1914, that the defendant hospital was required to produce records documenting the number of MRSA infections at the hospital for a three month period.
The Illinois medical malpractice lawsuit involved two consolidated MRSA lawsuits filed against Advocate Christ Medical Center. Joseph Zangara and Zigmund Dziamara were both hospitalized at Christ Medical Center during the same time period in 2005. Both Zangara and Dziamara acquired MRSA, or methicillin-resistant staphylococcus aureas, during their admissions; however, Zangara survived the infection, while Dziamara did not. Both Zangara and the estate representing Dziamara filed civil lawsuits against Christ Medical Center that accused the Oak Lawn hospital of negligent management regarding its infection control procedures.

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