Articles Posted in Federal Civil Procedure

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The family of a man who died of a heart attack while hospitalized after an appendectomy was held not to have a viable medical malpractice case against the attending physician.

In July 2017, Timothy Dobine, 43, died while under the care of medical staff at West Suburban Medical Center in Oak Park, Ill. Dobine’s family sued in state and federal court.

The family sued the U.S. government under the Federal Torts Claim Act alleging that the attending physician, Dr. Morgan Madison, who worked for a federally qualified healthcare center, provided negligent medical care and was the proximate cause of Dobine’s untimely death.
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Doe was a toddler when taken to MetroSouth Medical Center suffering from a three-day history of fever, headache and eye symptoms. Doe had an elevated heart rate and blood pressure at the hospital. The child was allegedly discharged with a diagnosis of fever and ringworm with instructions to follow up with a pediatrician.

The child’s fussiness increased and he developed a swollen right eye, a cough and a cold. Two days later, a physician assistant (PA) allegedly diagnosed periorbital cellulitis and prescribed antibiotics. Periorbital cellulitis is an infection of the eyelid or skin around the eye. It is an acute infection of the tissues surrounding the eye, which may progress to orbital cellulitis with protrusion of the eyeball.

Doe was found unresponsive that day. He was rushed to a hospital and diagnosed as having sepsis, subdural abscess, empyema (pus collection) and sinusitis. Doe then underwent emergency neurosurgery and other treatment. He now suffers from permanent brain damage.
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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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An Indiana University Hospital did not violate a law prohibiting patient dumping when it sent a woman suffering from severe abdominal pain to another facility to have dying portions of her intestines removed. The U.S. Court of Appeals for the Seventh Circuit in Chicago declined to revive the lawsuit that Jodie Martindale’s husband filed against Indiana University Health Bloomington Hospital under the Federal Emergency Medical Treatment and Labor Act (EMTALA or Treat Act) following his wife’s death. IU Health transferred Martindale to Community Healthcare Systems in Munster, Ind., after examining her. Martindale died at Community Hospital after ongoing intestinal surgery.

A panel of the Seventh Circuit rejected the argument that the Treatment Act required IU Health to stabilize Martindale before transferring her.

The panel acknowledged the Treatment Act generally bars a hospital from transferring a patient with an emergency medical condition if the patient has not been stabilized.
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A federal trial judge has upheld a $6.2 million award by the presiding trial judge for a man permanently disabled because of medical negligence at a veteran’s hospital even though the man died three days after the judgment.

Wesley Jordan’s daughter and state administrator, Katherine J. Henry, sued the United States under the Federal Tort Claims Act (FTCA) under an agency theory for medical negligence for injuries Jordan sustained from cardiac bypass surgery that went wrong.

Jordan was then 61 years old when he was admitted to Edward Hines Jr. Veterans Administration Hospital in Cook County, Ill., complaining of difficulty breathing and moving.
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Gerald Culhane went to his primary care physician at Buffalo Veterans Administration Medical Center, complaining of a lump in his neck over a three-month period. A CT scan was reviewed by a radiologist as being unremarkable. Culhane was told that he did not require a follow-up.

About a year and a half later, he called the Veteran’s Administration and reported that his neck lump was continuing to grow. Another CT scan led to a diagnosis of squamous cell carcinoma in the left tonsil, which required 40 rounds of radiation and 7 cycles of chemotherapy. The cancer recurred. Culhane later underwent a radical tonsillectomy and neck dissection.

Culhane and his wife sued the United States under the Federal Torts Claims Act (FTCA), alleging that the Veteran’s Administration Hospital chose not to timely diagnose squamous cell carcinoma. The Culhane family also alleged that a mass was obviously present when the first CT scan was done and that the scan was wrongly interpreted as negative.
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Almost seven years into this lawsuit, after discovery had been closed and with a summary judgment deadline looming, the defendants in this case, Dr. Partha Ghosh and Wexford Health Sources Inc., raised the affirmative defense of res judicata for the first time. This was an unexpected motion to dismiss an amended complaint. When the plaintiff, Alnoraindus Burton, responded that the defense had been waived or forfeited, while the defendants argued that the 7th Circuit Court of Appeals opinion in Massey v. Helman, 196 F.3d 727 (7th Cir. 1999), required a district court to allow any and all new affirmative defenses whenever a plaintiff amends a complaint in any way. The district court judge in this case agreed with that decision and granted the defendants’ motion to dismiss.

In this appeal, the 7th Circuit reversed and remanded the case. The court stated that the standard for amending pleadings under Federal Rules of Civil Procedure 8(c) and 15 continues to govern the raising of new affirmative defenses even when an amended complaint is filed.

This appeals panel stated that Massey held that a defendant is entitled to add a new affirmative defense prompted by an amended complaint that changes the scope of the case in a relevant way. Massey does not, however, require a district court to allow any and all new defenses and response to any amendment to a complaint, without regard for the substance of the amendment and its relationship to the new defenses. Rather, a district court must exercise its sound discretion under Rules 8 and 15 in deciding whether to allow the late addition of a new affirmative defense.
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Dennis Davis, an Illinois prisoner suffering from kidney disease, received dialysis on a Saturday. He later told the prison nurse that his mind was fuzzy and his body was weak. Both of these complaints were similar to other side effects he had experienced in the past after dialysis treatment. The nurse called Dr. Francis Kayira, the prison’s medical director, who asked her whether Davis had asymmetrical grip strength, facial droop, or drooling. These are classic signs of a stroke.

When the nurse said “no,” Dr. Kayira determined that Davis was experiencing the same dialysis-related side effects as before rather than something more serious.

Dr. Kayira told the nurse to monitor Davis and call him if the symptoms worsened. Dr. Kayira did not hear anything for the rest of the weekend. On the following Monday morning, Dr. Kayira examined Davis and discovered that Davis in fact had suffered a stroke.
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The U.S. Court of Appeals for the Seventh Circuit in Chicago has affirmed the dismissal of a Federal Tort Claims Act lawsuit sounding in medical malpractice filed by plaintiff Anna Chronis. She claimed that in June 2015, when she visited the University of Illinois Mile Square Health Center for her annual physical examination, the pap smear procedure did not detect cervical cancer. However, the procedure allegedly caused an injury, pain and bruising, she claimed.

After her Pap smear procedure, she claimed she tried to follow up with her physician, Dr. Tamika Alexander, but was unable to reach her. The complaint stated that the Health Center did not return Chronis’s calls or allow her to make a follow-up appointment. Chronis filed a written complaint with the health center’s grievance committee, requesting $332 for the expenses that she incurred because of the pap smear injury. But after reviewing her letter complaint, the Health Center rejected her request.

The lawsuit filed in the U.S. District Court for the Northern District of Illinois in Chicago under the Federal Tort Claims Act (FTCA) was dismissed when the district court judge found that Chronis had decided not to exhaust her administrative remedies because she had chosen not to make a sum certain demand to the appropriate federal agency before filing her lawsuit.
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This case arises out of a medical malpractice lawsuit alleged to have been prompted by the negligence of a radiologist. Courtney Webster had a CT scan performed at CDI Indiana LLC‘s diagnostic imaging facility. The radiologist, an independent contractor hired by Medical Scanning Consultants, missed identifying and diagnosing the cancer, which then remained untreated for over a year before being diagnosed.

Webster and her husband, Brian Webster, sued CDI, which in turn insisted that the Websters could not hold it liable because CDI did not directly employ the radiologist who was at fault for not recognizing the cancer.

The district court rejected that argument and applied the law of apparent agency, which instructs that a medical provider is liable if a patient reasonably relied on its apparent authority over the wrongdoer.
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