In a strange but interesting medical malpractice case, the jury entered a verdict in favor of the plaintiff without awarding a single dollar for plaintiff’s noneconomic damages. In April 2013, after a three-day jury trial, the jury found in this medical negligence lawsuit that the defendant physician Dr. Sublette was negligent in the cause of the death of his patient, Concetta Cimino, but concluded that there could be no awarded damages. This wrongful death, medical malpractice case was brought by the family of Cimino.
She was 83 years old in January 2009 and, according to testimony from her family, was in “pretty good health” when she phoned her daughter and told her she had been vomiting regularly.
Cimino’s daughter then drove her to Gottlieb Memorial Hospital in Melrose Park, Ill., the following day.
After blood tests and an inconclusive CT scan, Cimino’s general practice physician told the daughter that Cimino would need a colonoscopy to identify the cause of the vomiting, adding that surgery could be necessary.
The colonoscopy was then authorized and completed by a different doctor, Dr. Gerald Sublette.
Unfortunately, complications arose during the colonoscopy leading to an emergency surgery. During the surgery, the specialist in general and vascular surgery realized that the diverticula had perforated “either prior to, during or after the colonoscopy.”
Cimino was admitted to the intensive care unit and died two days later.
Cimino’s son, Salvadore Cimino, filed a lawsuit in September 2009 in the Circuit Court of Cook County claiming that Dr. Sublette deviated from the standard of care by performing the colonoscopy instead of first trying other options.
At the three-day jury trial, the Cimino family attorney asked the jury for more than $20,000 for medical expenses from the time of the surgery to the time of Cimino’s death; $10,500 for funeral expenses; $1.2 million in damages to Cimino’s surviving children; and $75,000 as a survival action.
When the jury’s verdict came in without assessing any damages at all, the attorneys for the Cimino family moved for a new trial solely on the damages issue, arguing that the jury did not follow the court’s jury instructions when it signed a verdict for no damages even though it found in favor of the plaintiff on the issue of negligence.
The plaintiff’s counsel contended that the jury was instructed that if it found Dr. Sublette liable, then it must award damages for at least the amount of medical and funeral bills.
The defendant opposed the plaintiff’s motion for a new trial saying that no new trial was necessary because the verdict was legally consistent. The defendant added that if a new trial was granted it should address liability as well as damages.
The trial judge granted the plaintiff’s motion for a completely new trial.
The Illinois Appellate Court initially issued its ruling as an unpublished order in March 2015 affirming the trial judge’s order. The Illinois appeal panel agreed to publish the opinion at the plaintiff’s request. In a 40-page opinion, the panel ruled that “under these facts, we find that the trial court did not abuse its discretion in vacating the verdict as inconsistent and setting the cause for a new trial on all issues. The jury instructions explicitly advise the jury that if it chose to sign Verdict Form A instead of B, it was required to determine the amount of damages to be awarded to the plaintiff.”
Form A, in the plaintiff’s favor, itemized damages for both pecuniary and noneconomic losses.
The appeals panel concluded that it was inconsistent for the jury to enter a zero award for medical and funeral expenses because the evidence of those expenses were stipulated to and undisputed at trial. The case will be reset for a new trial.
Salvadore Cimino v. Gerald Sublette, M.D., 2015 IL App (1st) 133373.
Kreisman Law Offices has been handling medical negligence cases, physician negligence cases, birth injury cases and nursing home cases 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 38 years in and around Chicago, Cook County and its surrounding areas, including Chicago (Albany Park, Andersonville, Lakeview, Rogers Park, Hegewisch, Humboldt Park, Pilsen, Wrigleyville), Brookfield, Arlington Heights, Oak Forest, Norwood Park, Park Ridge, Round Lake, Geneva, St. Charles, Fox River Grove, Elk Grove Village, Des Plaines, Northbrook, Elmwood Park, Evergreen Park, Forest Park and Glenview, Ill.
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