Medical Malpractice Case Update – Summer 2009
I. Appellate Court Does Not Tolerate Fraudulent 2-622 Documents
In Crull v. Sriatana, plaintiff originally filed his complaint, and he did not identify the author of his 2-622 report. Once plaintiff was compelled to identify the author of the report, pursuant to the Cargill and O’Casek decisions of the Fourth District, it was determined that the original author of the report was not a licensed physician. It was also discovered that the author of the report, when he was a licensed physician, was not of the specialty disclosed in the report. The trial court held that the 2-622 report and the supporting attorney’s affidavit were fraudulent, and accordingly, the trial court dismissed the cause of action with prejudice for failing to comply with the requirements of 2-622. On appeal, the Fourth District affirmed the trial court’s grant of dismissal noting that plaintiff was required to identify the author, and that report supporting the complaint violated 2-622 in various ways.
The plaintiff subsequently petitioned for leave to appeal to the Supreme Court. While plaintiff’s petition for leave was pending, the Supreme Court considered the case of O’Casek v. Children’s Home. O’Casek centered on whether a plaintiff must identify the author of his 2-622 report, and the appellate court had determined that identification was necessary. In overruling O’Casek, the Supreme Court held that the then enacted version of 2-622 did not require identification of the author. The Supreme Court then vacated the Fourth District’s prior ruling in Crull and ordered the Fourth District to reconsider Crull in light of the reversal of O’Casek.
On reconsideration in the Fourth District, plaintiff argued that since he should not have originally been compelled to identify the author of the report, the fraud should have never been discovered. Accordingly, his cause of action should not have been dismissed. The defense argued that once the trial court became aware of the fraudulent documents, dismissal was the only alternative. In March, 2009, the Fourth District again affirmed the trial court’s dismissal of the cause of action by again pointing out the deficiencies in the report pursuant to 2-622, regardless of the Supreme Court’s ruling in O’Casek. The Fourth District concurred with the trial court’s statement that “[i]n a very real sense, a fraud has been committed upon defendants, the court system and the people of Illinois.” Plaintiff has indicated an intent to again petition for leave to appeal to the Supreme Court.
II. Wrongful Birth Damages Expanded
On April 9, 2009, the First District, in Clark v. Children’s Hospital, expanded the damages recoverable by plaintiffs in a so-called “wrongful birth” case.
Plaintiffs’ first son was born in 1997. At 15 months of age, the child began to demonstrate developmental problems, including difficulty with walking and talking. The child was referred to Dr. Barbara Burton for a determination of whether the child suffered from a condition known as Angelman Syndrome, a genetic disorder caused by an abnormal gene. After testing, Dr. Burton advised Plaintiffs that the child did not have Angelman Syndrome. However, Dr. Burton failed to learn of a test which had been sent to the Baylor College of Medicine for interpretation. That test confirmed that the child did have Angelman Syndrome. This test result was never conveyed to the plaintiffs. Once Angelman Syndrome is diagnosed in a child, there is a 50% risk of future siblings also having the same condition. Plaintiffs, believing that there first child did not have Angelman Syndrome, decided to have another child. The second child was born in 2002. Shortly after birth, the second child began demonstrating symptoms consistent with Angelman Syndrome. It was only after plaintiffs sought out additional treatment for both sons that plaintiffs became aware of the previously unreported Baylor tests results which demonstrated that the first child had Angelman Syndrome.
Plaintiffs subsequently filed suit alleging wrongful birth and intentional infliction of emotional distress. Plaintiffs sought not only damages for caring for the second child during his minority, but also for the extraordinary cost of caring for the second child during his majority and for the plaintiffs’ lost wages. The trial court dismissed the portions of plaintiff’s complaint alleging negligent infliction of emotional distress, and those portions of the complaint seeking damages for care during the child’s majority and for lost wages.
The appellate court considered what damages are available in wrongful birth cases. In analyzing the damages available, the appellate court first turned to the 1980 Illinois Supreme Court case which first allowed a wrongful birth action. However, that case only analyzed the availability of damages for the care of the child prior to majority. The appellate court then turned to the Illinois Family Expense Act and the Illinois Marriage and Dissolution of Marriage Act. The Family Expense Act generally provides that parents may recover for the medical expenses incurred by the child, but this Act generally applies to expenses incurred during the minority. However, the Marriage and Dissolution Act provides that parents may be ordered to provide support for disabled adult children. In reliance upon this provision, the appellate court noted that the General Assembly did not foreclose parents from support obligations once the child reached majority. Accordingly, plaintiffs could plead a cause of action for recovery of expenses for caring for the child during majority.
Therefore, the appellate court expanded those types of damages that can be pled in wrongful birth cases.
III. Summary Judgment Granted on Agency Claims Because of Signed Consent Form
In Wallace v. Alexian Brothers Medical Center, plaintiff filed suit against a hospital and two doctors after her daughter, who had been struck by a car, died at the hospital. In answer to the complaint, both the hospital and the physicians denied any agency relationship. Prior to the child’s death, plaintiff signed a consent form at the hospital acknowledging that the physicians were independent contractors. It was determined that plaintiff has signed the identical consent on five prior trips to the hospital. During her discovery deposition, plaintiff admitted that the signature on the consent form was her signature.
The hospital moved for summary judgment based on the signed consents. In response, plaintiff provided an affidavit asserting that while the signature was hers, she did not personally sign the consent form and did not know who placed her signature there. The only consent she signed the day of her daughter’s death was for the removal of jewelry. Additionally, plaintiff indicated that she was not allowed time to ask questions about the documents she did sign, nor did she read any of the documents. The trial court granted the motion for summary judgment, noting that the plaintiff’s affidavit was internally inconsistent and inconsistent with her sworn testimony.
The appellate court affirmed the trial court’s grant of summary judgment. In so doing, the appellate court noted that the evidence demonstrated that she knew or should have known of the independent contractor status of the physicians. The consent form placed plaintiff on notice of the independent contractor status of the physicians and it would be unreasonable for her to assume otherwise. Additionally, the consent form signed by the plaintiff specifically indicated that plaintiff had read the document and been given the opportunity to ask questions. Further, plaintiff could not offer any evidence that she had relied upon the hospital to select her physicians. Plaintiff could not present evidence of any elements of her cause of action. While the consent form was not dispositive, it certainly was a key factor to the appellate court’s analysis. Further, the appellate court gave no weight to the contradictory and self-serving affidavit of the plaintiff.
This is certainly a positive development in the case law and will serve as a basis for obtaining summary judgment for a hospital in suits claiming actual or apparent agency for actions of the physicians practicing at the hospital.
Originally published in the Summer 2009 edition of Quinn Quarterly.