Articles Posted in Medical Malpractice

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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).
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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.
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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.
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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).”
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The Illinois Appellate Court for the 2nd District issued a Supreme Court Rule 23 Order in July 2017 that affirmed the jury’s finding in favor of Advocate Condell Medical Center in a medical malpractice death case. The court delivered its opinion on Oct. 4, 2017.

In this case, the appeals panel found issue with neither the trial judge’s admission of expert testimony nor a hospital lawyer’s ex parte conversation with a witness. The opinion echoes and makes legal precedent of the finding of a Supreme Court Rule 23 Order that the appeals court issued in July 2017.

Judith Caldwell, the daughter of Jeanette M. DeLuca, filed a medical malpractice lawsuit in March 2014 in Lake County, Ill., concerning the wrongful death of her 92-year-old mother who choked on food and died while receiving medical care from Advocate Condell Medical Center in Libertyville, Ill. Caldwell claimed in her lawsuit that Condell chose not to adequately monitor DeLuca after her procedure on April 23, 2013 and allowed her to eat without ensuring that her dentures were in her mouth and failed to ensure that she was sufficiently recovered from surgery to eat.
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James P. McKillip underwent a sleeve gastrectomy for weight reduction at a hospital in Rock Island, Ill. This took place in January 2012 by the defendant general surgeon, Dr. James Schrier. McKillip was 46 years old at the time.

According to the report of this jury trial, McKillip’s expert testified at trial that Dr. Schrier improperly stapled the nasogastric tube into McKillip’s stomach and also was negligent in creating a hole at the junction between the esophagus and his stomach.

As a result, McKillip suffered from two large perforations and gastric leaks at these two sites in the stomach, which caused him to develop sepsis and undergo three months of antibiotic therapy. Eventually he will require additional surgery to remove the remaining portion of his stomach.
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Michael Shimko was 17 years old when he went to the Geisinger-Kistler Clinic for treatment of what he thought was a hemorrhoid. A second-year resident, Dr. Christian Basque, diagnosed a hemorrhoid without examining Shimko. Dr. Basque prescribed a rectal suppository.

Eight months later, Shimko’s mother contacted Dr. Stephen Evans, Shimko’s family physician, and reported that the supposed hemorrhoid, which she described as a lump on his buttocks, had become large and painful. Dr. Evans reviewed Shimko’s medical records, refilled the suppository prescription and instructed the staff to refer Shimko to a colorectal surgeon. The referral was never made.

Over the next fourteen months, after Shimko’s initial visit to the clinic, he became unable to sit, prompting a visit to an urgent care clinic. There, medical providers diagnosed a complex pilonidal abscess. A pilonidal abscess or cyst occurs in the cleft at the top of the buttocks. The cyst and abscess can cause severe pain and often becomes infected.
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Ms. Doe, age 37, developed shortness of breath eight days after giving birth. A CT angiogram to rule out a pulmonary embolism revealed an enlarged right-sided axillary lymph node. Despite this finding, Ms. Doe’s healthcare providers ordered no further follow up. Over a year later, Ms. Doe discovered a lump in her right breast.

Testing of the lump by biopsy of the breast mass and lymph node led to a diagnosis of metastatic Stage IV breast cancer with lung involvement.

Ms. Doe is the mother of three children and a food service worker earning just minimum wage. Sadly, Ms. Doe’s condition at Stage IV is terminal.
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Michael Mills was 28 and had a history of smoking and borderline hypertension. He experienced chest pain for a year. He had seen a cardiologist, Dr. Hassan Kassamali, who ordered an echocardiogram, which was shown to be normal.

Mills had two additional appointments with Dr. Kassamali for his continued symptoms of chest pain, but the physician ordered no further tests.

About three weeks after his last cardiology appointment, Mills suffered a fatal cardiac arrest. The autopsy revealed triple-vessel coronary artery disease. Mills is survived by his parents and a minor son.
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Ezekiel Flores, 89, was admitted to MacNeal Hospital in Berwyn, Ill., in January 2013 for complaints of leg pain. While he was there, an abdominal CT scan came back with abnormal results, which led the doctors to suspect possible colon cancer over diverticulitis.

The defendant gastroenterologist, Dr. Manuel Alva, did a colonoscopy on Jan. 11, 2013. It showed there was no cancer. However, during the procedure Flores sustained a perforated colon, which led to nearly fatal sepsis, a colostomy for eleven months and later a colonostomy reversal surgery in combination totaled medical expenses of $201,950.

Flores maintained at this jury trial that he refused to undergo the colonoscopy several times but the defendants, the physicians, persisted and persuaded him to do so without fully disclosing the risks and alternatives and thus choosing not to obtain Flores’s informed consent.
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