Articles Posted in Medical Malpractice

by

Under the Illinois Code of Civil Procedure Section 2-1009, an Illinois plaintiff is allowed to voluntarily dismiss all or part of a claim without prejudice before a trial or a hearing begins. The statute allows this process upon payment of costs. Related to Section 2-1009 is Illinois Supreme Court Rule 219(e), which states, “A party shall not be permitted to avoid compliance with discovery deadlines, orders or applicable rules by voluntarily dismissing a lawsuit.”

Continuing, Rule 219 says: “In establishing discovery deadlines and ruling on permissible discovery and testimony, the court shall consider discovery undertaken (or the absence of same), any misconduct, and orders entered in prior litigation involving a party. . .”

In the case of Boehle v. OSF Healthcare System, a medical-malpractice lawsuit, the claim was for a failure to diagnose and treat a cancerous growth in the spine of the patient.
The alleged medical negligence led to the death of the plaintiff’s son.
Continue reading

by

The New York State Appellate Court has ruled that an orthopedic resident was not liable to a patient injured during a knee replacement surgery.

In this case, Carol Blendowski underwent a knee replacement surgery that was performed by Dr. Michael Wiese and Dr. Marc O’Donnell, who was a third-year orthopedic resident.

During the surgery, Blendowski suffered an injury to her peroneal and tibial nerves. These nerve injuries were permanent.
Continue reading

by

Nicole Incrocci was just 15 when she was bitten by a poisonous snake on her lower left leg. Her leg continued to swell over the next month. When she developed right flank pain, coughing and vomiting, she went to a hospital emergency room where a doctor diagnosed pneumonia, prescribed an antibiotic and discharged her to home.

Nicole’s condition worsened despite the administration of multiple antibiotics. She was later hospitalized. A family physician, Dr. Monique Casey-Bolden, who was aware of the pneumonia diagnosis, Nicole’s chest pain and her history of coughing up blood, diagnosed worsening pneumonia and prescribed different antibiotics.

Nicole’s condition continued to worsen. She developed rapid heart and respiratory rates for which Dr. Casey-Bolden ordered oxygen, albuterol treatments, Tylenol, and an EKG and chest-x-ray.
Continue reading

by

In this case of medical malpractice, the trial court refused to allow the plaintiff to name a pediatric oncologist as one of her expert witnesses. The plaintiff, Kelli Boehle, used what is called a “strategic voluntary dismissal” in order to name a new additional expert. Right after refiling the case under Section 13-217 of the Illinois Code of Civil Procedure, Boehle listed the same pediatric oncologist that the trial court had originally denied as being tardy.

The defendants relied on Illinois Supreme Court Rule 219(e), which lists a set of authorized consequences for “refusal to comply” with discovery/pretrial rules and orders. They moved to bar Boehle from using the oncologist as an expert in the refiled case.

Although the trial judge denied the motion because Boehle had not engaged in any sanctionable conduct in the first case, the judge certified two questions for immediate review under Illinois Supreme Court Rule 308. Both questions raised to call for yes/no answers focused on whether Rule 219(e) should be interpreted to “prevent Boehle from naming the oncologist as one of her experts in the revived litigation.
Continue reading

by

Carson Sofro, 33, was diagnosed with having a malignant tumor in his colon. He underwent a resection performed by a colorectal surgeon, Dr. Benjamin Karsten at St. Luke’s Regional Medical Center. After removing the tumor, Dr. Karsten connected the colon and small bowel.

Sofro suffered a variety of symptoms after the surgery, including pain, vomiting and bloating. He sought treatment at St. Luke’s and was told that his symptoms were a normal complication of the surgery. Sofro continued to experience these symptoms for more than two years before being diagnosed as having a 360-degree twist in his small bowel. That condition required another resection, causing him to miss one month of work from his job as the owner of a basketball camp.

Sofro filed a lawsuit against St. Luke’s Regional Medical Center alleging liability by Dr. Karsten choosing not to ensure that the small bowel was not twisted before creating the anastomosis. There was a claim of lost income of $15,000. Anastomosis is a surgical procedure connecting adjacent blood vessels, parts of the intestine or other channels of the body.
Continue reading

by

A lawsuit arising from the death of Jeannette Turner first resulted in a jury verdict of $22.1 million in this medical malpractice and wrongful death lawsuit. Sadly, Turner died the night before the jury’s verdict. According to the report of this Illinois Appellate Court case, her death transformed her medical malpractice lawsuit into a survival claim for Joi Jefferson, Turner’s daughter and the special representative of her estate.

As a result, Jefferson was unable to recover compensation that was awarded for any future injuries Turner would have suffered.

“Compensatory tort damages are intended to compensate plaintiffs, not to punish defendants,” Justice Mary Anne Mason wrote in the 23-page opinion. “We would run afoul of this principle if we allowed Jeannette’s estate to collect an award for future injuries Jeannette will no longer suffer. For this reason, we limit plaintiff’s recovery to compensation for injuries Jeannette suffered prior to her death.”
Continue reading

by

The Illinois Appellate Court has ruled that Judith Simpkins’s amended complaint against St. Elizabeth’s Hospital was not timed-barred. The Illinois Appellate Court denounced discovery that includes the series of “routine practices” including boilerplate objections and “dump truck disclosures” as amounting to a “misuse of the discovery process” that “should not be accepted by our trial courts.”

A dissent was filed by Justice Richard P. Goldenhersh who said that the majority’s directions “invade the discretionary province of the trial court in determining discovery disputes. The circuit court on remand is perfectly capable of resolving these and similar discovery disputes without appellate mandate predetermining the exercise of their discretion.”

The appeals panel majority stated that discovery is not a tactical game, but rather a procedural tool for ascertainment of truth for purposes of promoting either a fair trial or a fair settlement. Ostendorf v. International Harvester, 89 Ill.2d 273 (1982). The Illinois Supreme Court rules regarding discovery represent our Supreme Court’s best efforts to manage the complex and important process of discovery. Sullivan v. Edward Hospital, 209 Ill.2d 100 (2004).
Continue reading

by

The Illinois Appellate Court affirmed a jury’s $7.9 million general verdict against a physician, Dr. Yasser Alhaj-Hussein, who did a celiac plexus block procedure on one of his patients, Kathy Arient. The procedure was performed at Orland Park Surgical Center. After the procedure, Arient experienced numbness in her legs and was taken to St. Joseph’s Hospital in Chicago Heights, Ill., where it was determined that she had experienced a vasospasm resulting in her paraplegia.

About two and a half months later, Arient and her husband, Terry Arient, filed a lawsuit against Dr. Hussein for medical malpractice and loss of consortium. Kathy died on June 9, 2014 of a stroke and Terry was substituted as the executor of Kathy’s estate. The lawsuit was amended to allege wrongful death and survival actions, including the medical negligence count of the lawsuit.

At the jury trial, Arient introduced a motion in limine, seeking to bar the defendants from introducing evidence of or making any reference to Kathy’s history of smoking. Dr. Hussein and his lawyers argued that the smoking habit was a link to being extremely opiate tolerant. In fact, it was argued that Kathy’s smoking habit was a reason Dr. Hussein felt the need to administer a celiac plexus block to relieve her chronic pain. Opiates and implanted pumps had not been effective in controlling her pain. The trial judge granted that motion to exclude smoking.
Continue reading

by

In October 2016, we reported about this important case on the Illinois law on relation-back and how it applies in a medical malpractice lawsuit. In the underlying case of Sheri Lawler, as administrator who sued on behalf of Jill Prusak, the University of Chicago Medical Center and Advocate Christ Hospital and some doctors for medical malpractice in 2011, it was claimed that the doctors and the hospitals misdiagnosed Prusak’s central nervous system lymphoma. She unfortunately died in November 2013 while the case was still pending in the Circuit Court of Cook County, Ill.

The ultimate question in this Supreme Court case was whether an amended complaint was time-barred under the four-year statute of repose; 735 ILCS 5/13-212. While the case was pending, Lawler’s daughter, Jill Prusak, brought the case on behalf of her mother’s estate and asked the court to add a wrongful-death claim to the lawsuit. The Circuit Court judge rejected the motion and denied the Lawler family to amend the complaint saying it was time-barred under the four-year statute of repose.

However, the Illinois Appellate Court for the 1st District reversed that decision under the premise of the “amendments” or relation-back statute; 735 ILCS 5/2-616. The defendants appealed that decision to the Illinois Supreme Court.
Continue reading

by

During the discovery process in the case of Toni M. Morrison’s personal-injury lawsuit against Walmart, the company argued that she had to provide a written report from her treating physician, Dr. Daniel Mulconrey, under Federal Rule of Civil Procedure 26(a)(2)(B). The court stated that the report was required because Morrison intended to ask the doctor for expert testimony about three operations performed by other doctors, in addition to testifying about the medical treatment that he did provide.

Walmart’s motion to compel relied on the case of Meyers v. National Railroad Passenger Corp., 619 F.3d 729 (7th Cir. 2010), which held that “a treating physician who has offered to provide expert testimony as to the cause of the plaintiff’s injury, but who did not make that determination in the course of providing treatment, should be deemed to be one ‘retained or especially employed to provide expert testimony in the case,’ and thus is required to submit an expert report in accordance with Rule 26(a)(2).”

The magistrate judge in the federal court in the Central District of Illinois, Magistrate Judge Jonathan E. Hawley, explained that under “the plain language” of Rule 26(a)(2) – as amended a few months after the 7th Circuit decided Meyers – “Dr. Mulconrey is not a retained expert and does not have to comply with the reporting requirements of [S]ubsection (a)(2)(B).”
Continue reading