Case Law Update – Spring 2010
Despite a relatively quiet second half of 2009 on the medical malpractice front in Illinois courts, there are nevertheless several cases worth mentioning. Of significance is the Illinois Supreme Court’s decision in Thornton v. Garcini, regarding damages setoffs. The Thornton case is discussed in detail in Jon Stump’s article in this issue. Also of significance is the Appellate Court’s decision in Cookson v. Price, which serves as a cautionary tale regarding the further erosion of the rule requiring a health care professional’s report as precursor to a medical malpractice lawsuit.
In addition, Kim v. St. Elizabeth’s Hospital provides guidance regarding the application of the Illinois Mental Health and Developmental Disabilities Confidentiality Act in mental health records requests, as well as clarification on the collateral estoppel doctrine. Finally, Travaglini v. Ingalls Health System, raises considerations when expert testimony is based, in part, on the testimony of a lay witness.
Cookson v. Price
Plaintiff underwent a total knee replacement, followed by physical therapy. Plaintiff’s therapy included placement of an interferential current device (“IFC”) placed on his surgical knee by a physical therapy assistant. According to the complaint, the physical therapy assistant left the IFC device on the plaintiff’s knee unattended for approximately 40 minutes. During that time, the plaintiff’s surgical knee allegedly sustained further injury, necessitating additional surgery.
Plaintiff’s attorney filed an affidavit with the complaint stating that the plaintiff was unable to obtain a health care professional’s consultation, as required by 735 ILCS 5/2-622, and that the limitations statute would impair the action. Plaintiff’s attorney later filed another attorney affidavit, accompanied by a consultation report by a physical medicine and rehabilitation physician.
The defendants moved to dismiss the plaintiff’s complaint, arguing that the consultation report did not comply with the Section 2-622 requirement that a medical consultation report be authored by a health professional with the same license as the defendant. The defendants further asserted that the medical consultation report relied on a device other than the one used in the plaintiff’s care. Finally, the defendants claimed that, since the 90-day extension had expired without the filing of a proper medical report, the plaintiff should be precluded from filing any additional or supplemental reports.
The plaintiff thereafter sought to file an amended attorney affidavit and medical report authored by a physical therapy assistant. The trial court denied the plaintiff’s motion and dismissed the case with prejudice. In so holding, the trial court determined that, while it must construe Section 2-622 liberally, it cannot ignore it, and that the plaintiff was essentially not seeking to amend a medical report, but rather to substitute a new report altogether. The plaintiff appealed.
Issue and Holding
The Appellate Court was asked to examine the extent to which Section 2-622 should be liberally construed to allow a plaintiff appropriate opportunity to present a valid claim, while abiding by legislative intent to economize judicial proceedings and maintain fundamental fairness between parties.
While the Court recognized the various technical requirements of Section 2-622, it nevertheless determined that the purposes of the rule would not be frustrated by allowing the plaintiff to file an amended medical report. Indeed, the Court decided that technical requirements should not bar a meritorious claim. “A medical malpractice plaintiff should be allowed every opportunity to establish his case and amendments to such complaints should be liberally allowed.” Largely ignoring the disparity between the license of the defendant and the license of the first medical report’s author, the Court focused instead on the fact that both reports arrived at the same conclusion. The court determined that prohibiting the plaintiff from amending his medical report would amount to elevating the pleadings requirement to that of a substantive defense, contrary to the purpose of 2-622. Therefore, the Appellate Court reversed the trial court’s decision and remanded for further proceedings.
Kim v. St. Elizabeth’s Hospital
The plaintiff filed suit for dissolution of her marriage. She later served the defendant hospital with a subpoena — without an accompanying order — requesting that a hospital representative testify on her behalf at a hearing for an order of protection against the plaintiff. The hospital successfully moved to quash the subpoena pursuant to the Illinois Mental Health and Developmental Disabilities Confidentiality Act (“IMHDDCA”). Later, the plaintiff’s estranged husband tendered a subpoena to the hospital, requesting all of the plaintiff’s medical records. The hospital complied with the subpoena and forwarded the plaintiff’s medical information, including mental health records, to the husband. The plaintiff filed a motion to quash the subpoena, and to destroy the records. At a hearing on the motion, it was revealed that both parties had placed each others’ mental health at issue and that each had requested the other’s mental health records. The Court, therefore, ordered an in camera review of the mental health records, in accordance with the IMHDDCA. A joint parenting order was later issued, concluding the case. The plaintiff subsequently brought this action against her husband’s attorney and the defending hospital for improperly requesting and disclosing her mental health records in violation of the IMHDDCA.
The husband’s counsel filed a motion to dismiss pursuant to 735 ILCS 5/2-619, alleging that, because the plaintiff affirmatively placed her mental health treatment at issue in the divorce proceeding, her suit was barred by collateral estoppel. The defendant hospital moved to dismiss on collateral estoppel as well, arguing that the trial court found the mental health records to be relevant to the divorce proceeding where each party placed the other’s mental status at issue. The trial court determined that the plaintiff’s claim was barred by collateral estoppel. The plaintiff appealed.
Issues and Holding
The Appellate Court was asked to determine: (1) whether the husband’s counsel or the hospital violated the IMHDDCA in requesting or in producing the plaintiff’s mental health records; and (2) the propriety of the trial court’s dismissal of the claim due to collateral estoppel.
On appeal, the husband argued that because the subpoena did not request mental health records, it did not require an accompanying court order, and therefore did not violate the IMHDDCA. The Appellate Court did not find this argument persuasive.
The Court noted that collateral estoppel applies when a party participates in two separate, consecutive cases arising out of different actions, and where some question material to the determination of both cases was completely resolved in the prior suit. However, collateral estoppel should not bar an action unless it is clear that no unfairness results to the estopped party. In this case, the Court determined that, while the plaintiff opposed the disclosure of her mental health records, and while the trial court ordered an in camera inspection of those records, the trial court never determined whether the subpoena for — or the disclosure of — plaintiff’s mental health records were proper under the IMHDDCA (noting that admissibility of records is an entirely separate question from whether records are properly requested and disclosed). In short, the Appellate Court found that the trial court failed to determine whether the subpoena for mental health records was properly served, failed to determine whether the hospital improperly complied with the subpoena, and failed to determine whether, after the plaintiff put her mental health at issue, the defendants violated the Act. Thus, none of the issues on appeal were barred by collateral estoppel.
The Appellate Court ultimately reversed the trial court’s judgment on the issues of collateral estoppel and violation of the IMHDDCA, remanding for further proceedings.
Travaglini v. Ingalls Health System
This action for medical malpractice alleging that the defendant hospital and nursing staff failed to supervise the plaintiff’s husband’s consumption of a turkey sandwich, despite being instructed that the decedent had difficulty swallowing due to a prior stroke, and was prone to choking when eating. The decedent was allegedly provided a turkey sandwich by a nursing assistant, and then left unattended while he ate, resulting in the decedent choking to death. At trial, the decedent’s roommate testified to having witnessed the event, and described the decedent’s struggle as he choked. The plaintiff’s expert later relied on the roommate’s testimony in opining about the decedent’s cause of death and pain and suffering.
Issue and Holding
Following a verdict for the plaintiff, the defendants appealed, contending (1) that the trial court erroneously permitted lay witness testimony as expert testimony that the decedent choked; (2) that the plaintiff’s expert witness erroneously based his opinion on lay witness testimony; (3) that the trial court erroneously included a pattern instruction on pain and suffering damages based on the testimony of the lay witness; and (4) that the plaintiff violated Supreme Court Rule 213 when one of her experts changed his opinion after discovering that a food bolus had been removed prior to autopsy.
The Appellate Court found that the defendants waived their objections to the roommate’s testimony by failing to submit a motion in limine prior to trial and failing to object during trial. The Court ruled that as a result, the defendants likewise waived any objection to the plaintiff experts’ reliance on the roommate’s testimony and any objection to the roommate’s testimony forming the basis of the plaintiff’s pain and suffering claim and inclusion of a pain and suffering pattern instruction. Finally, the Court found that the trial court cured any prejudice arising from the plaintiff’s expert pathologist’s testimony (rendered after learning a food bolus had been removed prior to autopsy), by instructing the jury to disregard the testimony.
This article was prepared with the assistance of Amy M. Paulsen, Paralegal.
Originally published in the Spring 2010 edition of Quinn Quarterly.