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Medical Malpractice Update – Summer 2011

By Matthew J. Maddox

Guski v. Raja, 2nd District – Issued May 10, 2011

Alleged failure to chart information is properly barred from evidence if no expert testimony is introduced to establish that it caused an injury.

The plaintiff’s decedent appeared at the emergency room with complaints of headache. The defendant physician performed a medical examination and diagnosed him with an upper respiratory infection and was sent home with instructions to follow up with his family doctor. Four days later, the patient was found dead in his home. The plaintiff theorized that he died of a cardiac arrhythmia secondary to an aneurysm. They allege that the aneurysm existed at the time of the emergency department presentation and should have been diagnosed. A jury found in favor of the defendant. The appellate court considered many issues in its opinion. Included in those issues was the plaintiff’s argument that the trial court improperly barred evidence that the defendant failed to properly chart the patient’s symptoms. The appellate court held that the trial court properly barred that claim because none of the plaintiff’s experts testified that the failure to chart information caused or contributed to the patient’s death. On appeal, the plaintiff also argued that the failure to chart was part and parcel of a failure to take an adequate history, a theory which was presented to the jury. The court rejected this argument, noting that at no point during the trial proceedings did plaintiff or the plaintiff’s expert commingle those issues so as to create a separate charge for failure to chart.

Clark v. Children’s Memorial Hospital (Illinois Supreme Court – opinion issued May 6, 2011)

Parents in wrongful birth claim are not entitled to recover expenses of care which may be incurred after the child reaches majority but may seek damages for emotional distress.

The plaintiffs alleged that the defendants failed to inform them of test results revealing a genetic birth defect in their first son and that if they had this information they would not have conceived their second son, who developed the same severe condition. The plaintiffs filed a Complaint asking for damages for the expenses of raising the child through the age of majority, and the costs of care they would assume after the child reached the age of majority and for negligent infliction of emotional distress. The Illinois Supreme Court held that the parents are entitled to seek compensation for the extraordinary expenses of caring for the child through the time that he reaches the age of majority. However, the Court held that the parents were not legally obligated to provide any care to the child after he reached the age of majority, and that any such expense they incurred would be voluntary on their part. The Court held that the defendants should not be compelled to pay damages to the plaintiffs to compensate them for their voluntary undertaking of expense.

But the Supreme Court agreed that the parents could assert a claim for negligent infliction of emotional distress. In doing so, the Court overruled a previous opinion reaching the opposite conclusion. The Court held that emotional damages are a consequence of the tort of the defendants and were recoverable. The Court rejected the “zone of danger” rule in wrongful birth cases.

Christmas v. Hugar, 1st District – Opinion issued April 5, 2011

Author of 2-622 report is required to hold the same license as the defendant against whom the report is issued.

A plaintiff filed a lawsuit against two podiatrists and attached a 2-622 report which did not identify the name of the report’s author. During litigation, the plaintiffs disclosed an expert form Wisconsin and his deposition was taken. At deposition, the defendants discovered that the expert was the author other 2-622 report and also learned that at the time he issued the report he was not licensed as a podiatrist. He had previously had a podiatric license in Wisconsin, but he abandoned that when he completed osteopathic school. Subsequent to issuing the report, he again obtained a podiatric license. The defendants moved for dismissal and the trial court granted that dismissal with prejudice. On appeal, the plaintiffs asserted that under Wisconsin law, the scope of practice of an osteopath includes the scope of practice of a podiatrist and that therefore the licensing requirement in 2-622 was met. The appellate court rejected that assertion and affirmed the trial court’s dismissal. The court relied on other Illinois decisions holding that a medical doctor could not provide expert testimony against a podiatrist. The court reasoned that since a medical doctor cannot opine about the standard of care for a podiatrist that a medical doctor therefore could not author a 2-622 report against a podiatrist despite the fact that his license entitles him to a scope of practice which includes that of a podiatrist. The court further held that the plaintiffs’ submission of a report prepared by someone who is not qualified to author such a report in support of a particular cause of action is directly contrary to the purpose of Section 2-622 and is not a mere technical error. The appellate court also affirmed the trial court’s decision to dismiss the Complaint with prejudice.

Iaccino v. Anderson, 1st District – Opinion issued December 20, 2010

Plaintiff’s Expert may be cross examined at trial with his 2-622 report.

The plaintiff’s claimed that the Defendants were negligent in their monitoring of the plaintiff’s mother during delivery and as a result he suffered oxygen deprivation and brain damage. At trial, the defense was allowed to cross examine the plaintiff’s expert about inconsistencies between the 2-622 report he authored and his trial testimony. A jury returned a verdict for the defendants. The plaintiff appealed and asserted that such cross examination was improper. In a case of first impression, the appellate court held that a testifying witness for the plaintiff may be impeached and cross examined with a 2-622 report he issued. In support of its conclusion, the court noted that a physician writing a 2-622 report will be more careful to make only those accusations of medical malpractice which have a reasonably valid scientific basis if he knows that he may be subject to cross examination concerning that Report.

Originally published in the Summer 2011 edition of Quinn Quarterly.