Articles Posted in Appellate Practice

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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.
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A federal district court judge in Chicago declined to stay the prejudgment interest in a medical malpractice case, reaching a similar conclusion given by another federal judge in this highly anticipated ruling.

In a written opinion recently published, U.S. District Court Judge Steven C. Seeger declined to rule on the constitutionality of the Illinois Prejudgment Interest Act.

“Defendants offer no reason to stay application of the statute, other than a barebones gesture to a non-binding state court decision,” the judge wrote in a statement. “That’s not enough of a reason to stay the application of a statute that promotes settlement talks.”
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The Illinois Appellate Court for the First District affirmed the decision of a Cook County judge with respect to a jury verdict. In 2014, Jesse Perez, as independent executor of the Estate of Marilyn Medina Perez, filed this lawsuit against St. Alexius Medical Center, Jeffrey E. Chung M.D., Christopher Michael M.D., and Suburban Women’s Health Specialist Ltd., among other defendants.

At trial, only claims against these four named defendants were considered.

Marilyn Perez died from metastatic pelvic abdominal cancer seven months after giving birth to twins by cesarean section.
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On appeal from a trial court decision, the Illinois Appellate Court answered that the circuit court abused its discretion and denied the plaintiff a fair trial by refusing to issue a non-pattern jury instruction. The instruction was about the loss of chance doctrine and a pattern jury instruction on informed consent in a wrongful death and medical malpractice case.

The appellate court answered that question in the affirmative and reversed the circuit court’s judgment in part and remanded the case for a new trial against certain defendants. However, on appeal to the Illinois Supreme Court, the appellate court was reversed in part and affirmed the circuit court’s judgment in its entirety.

This case involved the death of Joe M. Milton-Hampton; his case was brought by Joe M. Bailey, administrator of the estate. The medical malpractice case was filed in Cook County against the defendants, Mercy Hospital and Medical Center and several doctors and a nurse.
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This medical malpractice lawsuit alleged failure to diagnose and treat a deep vein thrombosis (DVT) in a patient’s torn Achilles tendon before the DVT progressed to a fatal pulmonary embolism. The jury signed a verdict in favor of all of the defendants who were named in the case.

It was in this Illinois Supreme Court opinion that the trial court properly denied the plaintiff’s request for judgment notwithstanding the verdict against the defendant orthopedic clinic and the alternative motion for a new trial were likewise the correct ruling, denying that motion.

The jury was required to listen to the conflicting evidence tendered by both parties and to use that judgment to determine the truth. There was ample testimony that rebutted the plaintiff’s causation theory, and supported a reasonable conclusion that the pulmonary embolism resulting from DVT originating from an Achilles tendon tear was not the type of injury that a reasonable receptionist (the person who scheduled the follow-up visit) would see as a “likely result” of scheduling a follow-up appointment at three weeks, rather than two weeks.
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Lois K. Ries, a public aid recipient, was paralyzed by what was alleged to be medical malpractice. This took place in 2011. Her medical malpractice lawsuit was pending when she died. After settling the case for $415,000, her two sons, who were the co-executors of her estate and her sole heirs, received an unpleasant surprise.

During the negotiations, the Illinois Department of Healthcare and Family Services (the holder of the Illinois public aid lien) reduced its lien under Section 11-22 of the Illinois Public Aid Code to $20,000. It had paid $124,679 for her medical expenses after she was paralyzed. The sons expected to receive the next proceeds of the settlement: $80,819. However, the department insisted that it was entitled to all of the money based on Section 5-13 because it had provided $87,929 in medical benefits to Rise before her injury.

The co-executors objected, insisting that they never would have settled the medical malpractice lawsuit if they knew they would receive nothing. They would have instead pressed on, taking the case to trial with the hope that they would obtain a verdict more than the settlement and thus have some money for themselves after satisfying the public aid lien.
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