Articles Posted in Illinois Civil Procedure

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Mary McNair had knee replacement surgery at Rush University Medical Center. The surgery did not go as expected and left her with permanent injuries. On April 8, 2014, she filed a medical malpractice lawsuit against Rush University Medical Center alleging medical negligence related to the anesthesia and post-anesthesia care. She sought discovery from one of the named respondents in discovery pursuant to the Illinois statute. The respondent in discovery was Dr. Asokumar Buvanendran. The trial judge entered an order requiring written discovery to be answered by July 17, 2014. Dr. Buvanendran filed responses to all of the interrogatories by the date set by the court. Dr. Buvanendran also responded to requests for additional production of documents by the deadline of Aug. 4, 2014.

The trial judge ordered a deposition of Dr. Buvanendran to take place on Sept. 8, 2014. Dr. Buvanendran sat for that deposition as was required.

Two weeks later, McNair filed an emergency motion for “an extension of time to convert respondents in discovery to defendants,” alleging that she needed additional time to complete discovery from other respondents in discovery. Her motion claimed that she needed discovery from these other respondents in order to decide whether she would make Dr. Buvanendran a party defendant.

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In a recent article appearing in the Harvard Law Record, the title of the article says it all: “Civil Trials Are Fast Becoming Extinct.”  Civil jury trials and bench trials have seen a dramatic decline since 1986. This trend has followed in both state and federal courts and includes criminal cases as well.

The article, written by Frank J. Riccio D.M.D., J.D., wrote that there are no reasons why civil jury trials have become so infrequent. Some say that the Rules of Civil Procedure have encouraged lawyers and clients to engage in pretrial discovery in attempts to settle cases rather than prepare cases for trial. The trend began in the late 1980s when liberal discovery rules went into effect, although the decline began years before.  Nothing particular happened that made trying jury cases more expensive than in the past.

The jury trial decline in federal courts coincides with the Supreme Court’s 1986 decisions instructing trial courts to grant summary judgments unless the plaintiff proves the probability of the allegations.

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The family of Jill Prusak brought a medical malpractice lawsuit against a doctor and two hospitals. Prusak died in November 2013. The lawsuit brought by Sheri Lawler on behalf of the family of Jill Prusak was filed in April 2014 within the two-year statute of limitations for a wrongful-death case. The lawsuit contended that the medical malpractice occurred in November 2007 when a doctor “failed to order appropriate diagnostic testing,” which would have revealed that Prusak’s symptoms were caused by cancer.

Section 13-212(a) sets out a two-year statute of limitations for medical-malpractice claims and ends by declaring: “But in no event shall such action be brought more than 4 years after the date on which the act or omission or occurrence alleged in such action to have been the cause of such injury or death.”

The lawsuit for medical malpractice was filed in August 2011 within the two-year statute of limitations so the case would continue. Utilizing the relation-back statute (Section 2-616(b)), the Prusak family argued that the complaint saved the wrongful-death claim from the statute of repose.

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Jennifer Lee, 17, was injured during a physical education class at her Naperville North High School. Section 13-211 of the Illinois Code of Civil Procedures states that when a minor is injured by a negligent act she will get two years from her 18th birthday to sue. However, in this case, Jennifer Lee was 17 when she was injured.

Section 8-101(a) of the Local Governmental and Governmental Employees Tort Immunity Act imposes a one-year deadline for negligence claims against public entities. In the Lee case, Section 13-211 and another case, Bertolis v. Community Unit School District No. 7, 283 Ill.App.3d 874 (1996) where the plaintiff sued the school district and the school board a day before her 20th birthday were persuasive.

In the Bertolis case, Jennifer Bertolis was 15 when she was injured at her high school. She relied on Section 13-211 in suing the district and its board the day before her 20th birthday. In the Illinois Appellate Court’s majority opinion, it was stated, “Because the limiting provisions of the Tort Immunity Act are to be strictly construed against public amendments and the public policy of this state has long favored preserving the meritorious claims of minors, we hold the limitation period of Section 13-211 of the code governs this action.”

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A trial judge in Jackson County, Ill., refused to follow the case law found in Stanton v. Rea, 2012 IL App (5th) 110187 when calculating the amount of the hospital’s lien amount. In the case of Alma McVey, who was injured after a waitress dropped a tray of drinks on her foot, the issue was how much Memorial Hospital-Carbondale would receive for its $2,891 medical services bill still unpaid.

McVey settled her personal-injury case against the waitress’s employer for $7,500. Under Stanton, attorney fees and litigation expenses should have been deducted from the settlement before calculating the hospital’s share of the settlement. The judge in the McVey case ruled that McVey’s attorney was entitled to $2,250; the hospital would receive $2,500 and the remaining $2,750 would go to the plaintiff, McVey.

The Illinois Appellate Court for the 5th District reversed that ruling, concluding that “the trial court erred in refusing to follow Stanton and begin calculations after the settlement has been reduced by attorney fees and costs.”

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A wrongful-death case was brought against One Hope United Inc., one of its employees and the Cook County public guardian who was acting as administrator of 7-month-old Marshana Philpot. One Hope provides services to troubled families under a contract with the Illinois Department of Children and Family Services (DCFS). One of its assignments from DCFS was to oversee Marshana and provide counseling to the child’s mother, Lashana Philpot.

Marshana had been hospitalized for failure to thrive and was eventually returned to Lashana Philpot under One Hope’s “intact family services” program. Unfortunately, the baby drowned in a bathtub allegedly because Lashana Philpot left her unattended.

In the wrongful-death case, the attorneys requested One Hope’s “priority review” report on the child’s death. The agency objected and invoked the privilege for self-critical analysis.

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In Illinois, legislation has been passed three times to limit recoveries in medical negligence claims. Each time the Illinois Supreme Court has overturned such restrictions on the ground that they are unconstitutional. Missouri is going through the same exercise once again. About ten years ago, Missouri last limited some civil lawsuit awards, but the Missouri Supreme Court overturned the legislation.

Now businesses can face lawsuits with unlimited punitive damages and civil injury lawsuits after the Missouri Supreme Court struck down a $500,000 limit on awards in September 2014, two years after striking down other limits for medical-malpractice awards.

It has been reported that business groups and Republican leaders there want the decision striking down limits for medical-malpractice rewards to be reversed and now are attempting a state constitutional amendment to ensure the court cannot interfere with caps again. “Missouri will continue to be a judicial hellhole” if caps are not put in place, said Senate Majority Floor Leader Ron Richard of Joplin, Mo. Richard says his constitutional amendment effort capping punitive damages is his top priority for the current senate session.

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Richard Cholipski sued three contractors in Chicago for injuries he claimed that he suffered in a construction accident. Defendants requested and received permission to file a contribution claim three years after Cholipski’s lawsuit was filed. They accused in their contribution action that Cholipski’s physician was guilty of medical malpractice, thus increasing or causing Cholipski’s claimed injuries. But because the trial on Cholipski’s negligence complaint was scheduled to start in five months, the presiding judge granted the plaintiff’s request to stay the contribution part of the case while allowing the case in chief to proceed to trial.

The defendants appealed, arguing that the judge abused her discretion and the stay violated the “principles” of the case of Laue v. Leifheit, 105 Ill.2d 191 (1984), which interpreted Section 5 of the Joint Tortfeasor Contribution Act as providing that, “When there is a pending action, the contribution claim should be asserted by counterclaim or by third-party claim in that action.”

The appellate court rejected the first argument stating that if it accepted the defendants’ argument, it would not allow for a plaintiff to have a speedy resolution of his or her lawsuit, but instead would allow the defendant to wait three years and then bring a contribution claim against the treating physician, delaying the case in a way that brings pressure on the plaintiff to settle.

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The plaintiff in this case, Lee Ann Sharbono, filed a lawsuit claiming medical negligence against the defendant Dr. Mark Hilborn, a board-certified radiologist. In the lawsuit it was alleged that Dr. Hilborn had chosen not to timely diagnose Sharbono’s breast cancer.  After the trial, the jury found for Dr. Hilborn and against Sharbono.  She filed post-trial motions for judgment notwithstanding the verdict, for new trial and for rehearing, all of which the trial court denied. This appeal was taken.

In August 2006, Sharbono was diagnosed with breast cancer in her left breast.  It had spread to her nearby lymph nodes under her left arm. She underwent extensive treatment including a modified radical mastectomy of her left breast.

The lawsuit in this case arose out of a diagnosis that was made by Dr. Hilborn in November 2004.  Sharbono, who was then 39 years old, went to see her primary care physician because she was experiencing fatigue, weight gain, aches and pain.  The doctor ordered a screening mammogram. That mammogram and an ultrasound were claimed to have been misinterpreted.

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The Illinois Supreme Court has reversed an Illinois Appellate Court ruling concluding that Section 3.150(a) of the Emergency Medical Services Systems Act immunizes an ambulance driver in a non-emergency transfer of a patient. 

According to the Act, Section 3.150(a), “Any person . . . certified, licensed or authorized pursuant to this act or rules thereunder, who in good faith provides emergency or non emergency medical services . . . in the normal course of conducting their duties, or in an emergency, shall not be civilly liable as a result of their acts or omissions in providing such services unless such acts or omissions . . . constitute willful and wanton misconduct.”

In this case, the plaintiff, Karen Wilkins, sued Rhonda Williams for the injuries she sustained in Oak Lawn, Ill., when she was in an ambulance that crashed into her car. The ambulance was proceeding during a routine, nonemergency transfer of a patient from a hospital to a nursing home. The lawsuit alleged that the driver, Rhonda Williams, and her employer, Superior Air Ground Ambulance Service, were negligent. The defendants moved for summary judgment based on the Emergency Medical Services System Act.

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