When Juanita Norton, 88, fell in her yard, she was taken to the local emergency room. At the hospital, she was diagnosed as having multiple pelvic fractures.
She was admitted to the hospital for pain control and rehabilitation when placed on DVT (deep vein thrombosis) prophylaxis.
During the hospitalization, Norton experienced pain, nausea, vomiting and constipation. Later, she had difficulty breathing. Unfortunately, Norton died three days after her hospital admission.
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Elizabeth Njinga suffered from back pain for a long period of time. She was referred to an orthopedic surgeon, Dr. Michael Alexiades. The doctor reviewed her x-rays and ordered an MRI.
Dr. Alexiades told Njinga that she had moderate degenerative changes in her hip and that her pain was coming from her hip and her back. The doctor recommended a hip replacement for pain relief.
After undergoing that surgery, Njinga experienced continued pain. Her relationship with her husband has been affected, and she is unable to travel extensively as she once did because of her condition.
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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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Gloria Tirado and Christian Tirado were plenary guardians of Gina Gutierrez, who brought a medical malpractice case against Drs. Konstantin Slavin and Gerald Oh. In the suit, it was alleged that the doctors negligently performed spinal surgery on Gutierrez and were negligent in their follow-up care.
In answer, Dr. Slavin raised an affirmative defense of contributory negligence for Gutierrez’s failure to seek treatment and follow medical advice. The case went to a jury trial and during plaintiffs’ closing argument, Dr. Slavin and his counsel came to the aid of a suddenly ill juror.
The plaintiffs moved for a mistrial the following morning, which the trial court denied. The trial court then entered judgment on the jury’s verdict in favor of Dr. Slavin and denied plaintiffs’ motion for a new trial. An appeal was taken in which the Illinois Appellate Court affirmed the entry of judgment in favor the defendant physicians.
William Andrews, 46, suffered from orthopedic injuries, including a hip fracture that he suffered in an ATV crash. He went to a hospital emergency room where he was placed in a knee immobilizer and was instructed to stay non-weight bearing. At a later doctor’s appointment with an orthopedist, he was diagnosed as having a fractured wrist and was referred to an orthopedic surgeon, Dr. Jeffrey Gelfand.
Several days later, Dr. Gelfand met with Andrews and his wife who informed the doctor of Andrews’s hip fracture and immobility. Dr. Gelfand recommended that Andrews undergo surgical repair of the wrist fracture. This was scheduled for approximately ten days later.
Andrews remained immobile before the surgery and did not leave his house. The morning of the wrist surgery, Andrews’s wife found him on the floor of their bedroom, where he had died. The later autopsy showed that Andrews had died from a saddle pulmonary embolism.
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Patricia Bent underwent a right laminectomy performed by orthopedic surgeon Dr. Navinder Sethi. Although the surgery was successful, she developed pain, numbness and tingling on her left side. She returned to Dr. Sethi, who recommended a bilateral laminectomy at L3-4.
Unfortunately, during that surgery, Bent suffered a right-side dural tear, which led to leakage of cerebral-spinal fluid and caused permanent nerve damage.
After this surgery, Bent, 64, was unable to feel anything on her right side from her waist down to her foot. That prevented her from walking independently, driving, or continuing her work as a nurse where she was earning approximately $70,000 per year.
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Dwayne Kenney suffered a fractured left leg in a motorcycle crash. He underwent open reduction and internal fixation surgery, which was performed by an orthopedic surgeon, Dr. Cyrus Kump II. Kenney suffered complications and, suspecting an infection, Dr. Kump removed the plates and screws from his leg approximately three months later. During that procedure, Dr. Kump was unable to close the skin over Kenney’s exposed tibia. Nevertheless, Dr. Kump ordered only dressing changes for the next four weeks, leaving the wound open to the air.
Six months later, a plastic surgeon attempted to cover Kenney’s exposed bone. Kenney contracted MRSA, osteomyelitis, and the procedure failed in less than two weeks. Several months after that, Kenney’s left leg required amputation. Although it was not reported, it may be assumed that the amputation was below the knee.
Kenney sued Dr. Kump and his practice alleging that Kump chose not to place an external fixator to stabilize the fractured tibia during the second surgery and decided not to timely consult a plastic surgeon to address an exposed tibia within five days of the procedure. The exposure of the bone to air led to the infection, which included osteomyelitis.
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Then 2-year-old Doe was taken to a children’s hospital after suffering a fall. A pediatric resident, Dr. James Prosser, set Doe’s fractured right arm and placed a cast on the arm. Later that day, Doe was returned to the hospital, where another physician examined him again and discharged him.
Doe’s parents took the child back to the same hospital a third time. This time the staff removed the child’s cast. This led to a diagnosis of compartment syndrome and Volkmann’s ischemic contracture.
Doe is now 19 years old and has a deformed and shortened right arm, scarring, and lost function in two of his fingers.
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The Illinois Appellate Court rejected a claim by the plaintiff, Ludgardo R. Castillo, that expert testimony was required only to establish the applicable standard of care. Also, the trial court did not err in indicating to Castillo that she would have to pay money to the defendant to reimburse defense counsel for expenses incurred in attending a California evidence deposition of plaintiff’s expert taken days before the scheduled trial. If plaintiff wanted that expert to appear live at trial: (1) the record reflected that the plaintiff was never formally ordered to pay defendant anything; and (2) the plaintiff failed to show any prejudice by her inability to have expert testimony live.
Lastly, the trial court was in error in allowing the defendant to question the plaintiff’s physician as to whether syphilis could be a source of her pain where the plaintiff was never diagnosed with this condition. Since the error related only to plaintiff’s damages and the jury never considered such evidence as the jury held in favor of the defendant on the issue of liability.
The plaintiff, Ludgardo R. Castillo, appealed from a jury’s verdict in favor of the defendants, Dr. Jeremy Stevens and Center for Athletic Medicine (CAM), on plaintiff’s claim of medical negligence.
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The Illinois Appellate Court reversed the Will County associate judge’s April 2017 decision to deny plaintiff Susan Steed’s post-trial motion for judgment notwithstanding the verdict. In this case, Steed’s husband, Glenn Steed, suffered an Achilles tendon injury playing basketball. After the Feb. 17, 2009 injury, his right leg and ankle were placed in a cast two days after the injury by the defendant doctors at Rezin Orthopedics.
He was ordered to follow up in two weeks, but the receptionist at the defendant’s office did not schedule an appointment until March 13, 2009.
On Feb. 20, 2009, he told his wife that his cast was uncomfortable. Five days later he called the defendant’s office to have his follow-up rescheduled. The receptionist changed his appointment to March 12, 2009, but on March 8, 2009, he suffered a fatal blood clot that traveled to one of his lungs, resulting in his death.
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