Category Archives: Medical Malpractice

Perkey v. Portes-Jarol – Plaintiff met evidentiary standard for Holton “lost chance” claim but the trial court erred in not reducing medical malpractice judgment by the medical charges associated with the claim less the lien amount paid by plaintiff’s insurer

Perkey v. Portes-Jarol, 2013 IL App (2d) 120470 (Spence)

Facts:  Plaintiff sees the defendant, her primary care physician, with complaints of back pain and she orders a CT scan to rule out kidney stones.  The CT report states that the pancreatic ducts dilated and the radiologist recommends additional evaluation with ERCP to assess for either stricture or tumor causing this finding.  The defendant does not refer the plaintiff to a gastroenterologist for evaluation or consideration of the ERCP and the evidence is in direct conflict over whether the defendant discussed the findings of the CT with the plaintiff.  The plaintiff claims it wasn’t discussed at all and defendant claims that he advised that an ERCP wasn’t warranted because she had no other symptoms consistent with cancer and that they should take a “wait and see approach.”  Plaintiff never returned with any further complaints.  About one year later, the plaintiff was getting evaluated to donate a kidney to a friend and underwent another CT scan that led to an ERCP which revealed a tumor.  Plaintiff was diagnosed with pancreatic cancer.  She underwent a resection procedure and chemotherapy and radiation therapy and was able to resume her normal life.  Four years later she developed cancer in her lung, which was the same type as her pancreatic cancer and had metastasized to her lungs and resulted in her death approximately one year after the diagnosis.

At trial, a surgical oncologist testified that the cause of the dilation seen in the initial CT scan was the plaintiff’s pancreatic cancer and that the delay in her diagnosis of pancreatic cancer from February 2001 to July 2002 was a cause of the recurrence of her cancer in February 2006.  Her pancreatic cancer was Stage IIB when it was removed, which has a 5 year survival rate of 6%, and at the time of the misdiagnosis the cancer was likely a Stage II A, which has a 5 year survival rate of 12% or a Stage IA which has a 5 year survival rate of 36%.  The surgical oncologist conceded that the chances of it having already metastasized at the time of the initial CT scan was greater than 50% but if it had been diagnosed at that time the chances for a cure would have been greater.

The plaintiff’s expert family practice physician testified on direct exam that the treatment provided by the defendant did not conform to the degree of care, knowledge and skill that a reasonably careful family practice physician would use in Chicago in 2001 in like or similar circumstances.  On cross examination she described that the standard of care was what a typical patient would receive from 80% of the doctors.  The defendant moved for a directed verdict at the close of the plaintiffs case arguing that (1) the expert’s definition of the standard of care was improper and (2) the evidence did not support proximate cause because even if the defendant had diagnosed the plaintiff in 2001 her treatment would have been the same and there was more than 50% chance that she would have succumbed to the disease.  The trial court denied the motions on both counts.  The defendant then presented its evidence that the standard of care was met and that the plaintiff was going to die regardless of the diagnosis.  The jury found in favor of the plaintiff and against the defendant and awarded $600,000, of which $310,000 was allocated to the reimbursement of medical bills.

The defendant moved for a new trial on the grounds of (1) the experts incorrect definition of the standard of care, (2) that the proximate cause nexus had not been established, (3) that the jury was improperly instructed on the standard of care because the instruction utilized the term “reasonably careful” family physician, and (4) that the judgment should be reduced by $300,000 pursuant to section 2-1205.  After the motion was filed, the defendants learned that the bills had been paid by Blue Cross Blue Shield for a total of $136,933.85, so they modified their request to a reduction of $175,066.15.  Plaintiff argued that section 2-1205 did not permit a set-off in this case because there was a right of recoupment for the medical bills paid by the insurer. The trial court denied the motion.  Defendant then filed a motion to reconsider and requested that the court consider new documents that were not subpoenaed until after the initial motion.  The trial court granted defendant leave to file additional materials, which showed that the lien was subject to a further reduction of 1/3 under the common fund doctrine, but the trial court granted plaintiff’s motion to strike the materials because they were not “newly discovered” evidence as they were always available to defendant had they requested them prior to the initial motion for new trial.  Defendant appeals.

Holding:  (1) Trial court did not err in denying directed verdict and new trial on basis of experts incorrect definition of the standard of care on cross examination because the plaintiff had used the correct definition in its questioning on direct exam and any inconsistency merely went to the credibility of the witness. (2) The plaintiff’s evidence that the delay in diagnosis decreased her chances of survival met the legal requirements of the lost chance doctrine established in Holton which can be met despite the chances of survival being less than 50%.  (3) The jury instruction defining the standard of care was proper and in conformance with the revised 2011 IPI instruction.  (4) The trial court erred in not reducing the judgment pursuant to section 2-1205 by the medical charges less the amount paid by the insurer.

Filed in Trial Book Under:  Standard of Care, Proximate Cause – Lost Chance, IPI 150.01, Set-Offs, 735 ILCS 5/2-1205, Directed Verdict, New Trial, Motion to Reconsider

Commentary:  There’s a lot of material covered in this case and it is fact intensive so somewhat hard to keep straight, at least for me.  It seemed like a pretty solid case for the plaintiff on the issue of liability and that the defendant did not have a strong understanding or appreciation for the lost chance doctrine.  The lost chance doctrine from the Holton case only requires that Plaintiff establish some evidence that the negligence of the defendant reduced the effectiveness of treatment and that some lost chance of survival resulted.  It does not require that there be a greater than 50% chance of survival.  Here, the survival chances went from only 6% to 12% and Holton applied so this is a good case for citation in the future on this issue.  This case also serves a strong warning to plaintiffs attorneys to educate their experts on the appropriate definition of the standard of care and, just to be safe, work the definition into their questions on direct examination.  Even though the experts are pretty smart in their respective fields, they aren’t lawyers and won’t always appreciate how important the precise language of the instructions can be to the case.  I’ve had this happen to me before with an expert coming up with a goofy definition of the standard of care that then required that I pull out my jury instruction and literally read from it word for word as I asked the expert further questions.  The set-off issue should be a lesson to defense lawyers to get their duckpin a row prior to the trial regarding liens and rights of recoupment.  Even though the appellate court ultimately reduced the judgment, it came very close to finding a waiver on the issue and seemed critical of the defense for not issuing subpoenas until after they had already lost their motion.

Useful Rules/Language from Opinion:

Standard of Care:  In order for an expert to be competent to testify about the standard of care in a particular case, he or she must be licensed in the defendant’s school of medicine and be able to show that he or she is familiar with the methods, procedures, and treatments ordinarily observed by other physicians in the defendant’s community or in a similar community. citing Sullivan v. Edward Hospital, 209 Ill. 2d 100, 112 (2004)

Directed Verdict:  A trial court may not enter a directed verdict or judgment n.o.v. if there is any evidence, together with reasonable inferences drawn from the evidence, demonstrating a substantial factual dispute, or if the assessment of witness credibility or the determination regarding conflicting evidence is decisive to the outcome. Solis v. BASF Corp., 2012 IL App (1st) 110875

New Trial:  A trial court should grant a motion for a new trial if the verdict is contrary to the manifest weight of the evidence. Lawlor, 2012 IL 112530.  That occurs where the opposite result is clearly evident or where the jury’s findings are unreasonable, arbitrary, and not based on any of the evidence. Id. We will reverse a trial court’s ruling on a motion for a new trial only if the trial court abused its discretion. Id

Lost Chance:  In Holton, our supreme court stated, “To the extent a plaintiff’s chance of recovery or survival is lessened by the malpractice, he or she should be able to present evidence to a jury that the defendant’s malpractice, to a reasonable degree of medical certainty, proximately caused the increased risk of harm or lost chance of recovery.” Id. at 119. Plaintiffs are not required to prove that they would have had a greater than 50% chance of survival or recovery absent the alleged malpractice. Id.

Battle of the Experts:  The jury was faced with a classic battle of the experts, and the battle was for the jury, as the trier of fact, to resolve. See Davis, 405 Ill. App. 3d at 37-38.

IPI 150.01:  The Studt court did not reject the use of “reasonably careful” in the 2006 version of the instruction. Moreover, the appellate court has directly held that the phrase “reasonably careful” correctly replaces “reasonably well-qualified” in the instruction. Matarese v. Buka, 386 Ill. App. 3d 176, 184-85 (2008); LaSalle Bank, N.A. v. C/HCA Development Corp., 384 Ill. App. 3d 806, 816-17 (2008). Accordingly, we conclude that IPI Civil (2011) No. 105.01 correctly states the law on professional negligence, and the trial court did not err in instructing the jury using this version.

Jury Instruction – New Trial:  A reviewing court will not grant a new trial based on a trial court’s refusal to provide a suggested jury instruction unless the refusal seriously prejudiced the complaining party’s right to a fair trial. Surestaff, Inc. v. Azteca Foods, Inc., 374 Ill. App. 3d 625, 627 (2007).

Motion to Reconsider:  The trial court’s ruling striking the evidence conformed with the principle that “[t]rial courts should not permit litigants to stand mute, lose a motion, and then frantically gather evidentiary material to show that the court erred in its ruling.” Gardner v. Navistar International Transportation Corp., 213 Ill. App. 3d 242, 248 (1991).

Section 2-1205: Here, plaintiff’s interpretation of the statute would be correct if the statute stated “Such reduction shall not apply if there is a right of recoupment.” However, given that the statute says that the reduction shall not apply “to the extent that” there is a right of recoupment, we agree that this language limits the reduction by only the extent of, or amount of, the right to recoupment.

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Filed under Medical Malpractice, Negligence, Post Trial, Proximate Cause, Trial, Wrongful Death and Survival Claims

Stoelting v. Betzelos – Trial Court Reversed for 2-622 Dismissal on Basis That It Incorrectly Believed it Had No Discretion to Allow Plaintiff Additional Time to File Affidavit

Stoelting v. Betzelos, 2013 IL App (2d) 120651 (Schostock)

Facts:  Plaintiff filed a medical malpractice claim against her dentist with an expert’s report attached to the complaint setting forth his opinion that the defendant was negligent but not the attorneys affidavit required by 735 ILCS 5/2-622.  Defendant moved to dismiss the complaint for plaintiff’s failure to comply with 2-622 and further that there was no good faith showing to establish cause for the failure to attach an attorney affidavit.  Plaintiff responded that she attempted in good faith to comply with the Code because her attorney signed the complaint and that if the court should find the signature on the complaint was insufficient then she should be given leave to file an attorney affidavit.  At the initial hearing, the plaintiff’s attorney did not appear, apparently because he was in a different room attending to another matter, and the motion to dismiss was granted.  At a later hearing, the plaintiff’s attorney argued that the trial court should vacate the dismissal order and permit the plaintiff to file an attorney affidavit or dismiss the complaint without prejudice such that plaintiff could refile within one year.  The trial court determined that it did not have the authority to grant any additional extensions because the 90 day period set forth in the Code had already expired and dismissed the complaint with prejudice.  Plaintiff appealed.

Holding:  The trial court incorrectly determined that it had no discretion to grant any additional extensions for plaintiff to file an attorney affidavit and therefore the dismissal with prejudice on that basis was improper.  Reversed and remanded for the trial court to determine any good cause for failure to file an attorney affidavit.

Filed in Trial Book Under:  Medical Malpractice – Affidavit; 735 ILCS 5/2-622

Commentary:  Unfortunately, the plaintiff’s attorney created a predicament here that was unnecessary.  The hard part of the case, i.e. obtaining the expert’s report, was already done, and it was just the pro forma attorneys affidavit that needed to be filed.  Cases involving 2-622 affidavits usually involve the failure to attach an experts report, not filing the expert’s report and not the corresponding attorneys affidavit.  If the failure to file the affidavit was inadvertent where the attorney simply did not notice that it wasn’t included with the materials filed, it probably would not be a problem, particularly given the appellate court’s analysis in this case that the language contained in the code does not mandate dismissal and gives the court discretion with regards to dismissing with or without prejudice.  However, this attorney took an approach where he argued that he was not required to attach an affidavit because he signed the complaint, which indicates a deliberate action on his part to not include the affidavit.  6-222(a)(1) is pretty clear that a medical malpractice complaint is to include the expert’s report and an attorneys affidavit, so the attorney was mistaken in this belief.  It will be interesting to see what the trial court does with this case on remand.  Hopefully, there will be a “no harm, no foul” approach and the case will be permitted to continue.  The important part of 2-622 is that an expert verify that the complaint has merit.  That was done here so it would be a shame to see this case get dismissed with prejudice solely on the basis that the attorney failed to attach the pro forma attorneys affidavit.

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Filed under Civil Procedure, Medical Malpractice

Wilson v Edward Hospital – Supreme Court Finds That Re-Filing of Apparent Agency Claim Against Hospital Not Barred by Res Judicata Despite Summary Judgment in Prior Case on Actual Agency

Wilson v. Edward Hospital, 2012 IL 112898 (Garman)

Facts:  Plaintiff suffered a broken femur and was transported to defendant Edward Hospital where he underwent surgery to repair the broken bone.  During the procedure he aspirated vomit into his lungs which caused cardiac arrest and sresulted in an anoxic brain injury.  Plaintiff filed suit against the hospital and two doctors and their resepctive practice groups alleging negligence in the failure to provide sufficient fasting time prior to the procedure.  Plaintiff alleged that the doctors were agents of the hospital under both actual and apparent agency theories.  The two doctors filed motions for summary judgment on the issue of agency and the trial court granted summary judgment on the issue of actual agency but denied the motion and found issues of material fact on the issue of apparent agency.  Plaintiff subsequently filed a voluntary dismissal and then re-filed the case alleging apparent agency in the re-filed complaint.  The defendant moved to dismiss the re-filed complaint arguing that the finding of summary judgment on the actual agency theory was an adjudication on the merits of the cause of action and served to bar the apparent agency count pursuant to res judicata and the prohibition on claim splitting.  The trial court denied the motion but permitted a certified question pursuant to Supreme Court Rule 308 as to whether actual agency and apparent agency are separate claims for purposes of res judicata and the prohibition against claim-splitting.  The appellate court answered the certified question in the affirmative and dismissed the case.  The Plaintiff appeals the finding of the appellate court.

Holding:  Actual and apparent agency are not causes of action, but rather are merely part of the duty analysis in case where the plaintiff seeks to hold the principal liable for the agent’s alleged negligence, and therefore, the plaintiff’s re-filed claim against the hospital for apparent agency is not barred by res judicata or prohibited by the rule against claim splitting.

Filed in Trial Book Under:  Res Judicata; Voluntary Dismissal; Agancy

Commentary:  This case comes as a welcome relief to plaintiffs and makes a lot of sense.  Since the Supreme Court’s ruling in Hudson v. City of Chicago, the plaintiff’s bar has become somewhat paranoid of filing for a non-suit in cases where a summary judgment or motion to dismiss had been granted out of fear that somehow they would be foreclosing a claim that “could have been brought prior to the adjudication on the merits.”  The prohibition against claim splitting is predicated upon avoiding endless litigation where a plaintiff continues to bring cause of action after casue of action when all of them could have been brought at once.  Therefore, once there has been an adjudication on the merits in a cause of action then any other cause of action that could have been brought from the facts is subject to res judicata in the event of a nonsuit and re-filing of the case.  In this case, the plaintiff argued that there was only one cause of action against the hospital, that of negligence based upon vicarious liability, and proving the doctors were agents of the hospital was just one step in the process of establishing the hospital’s liability, and thus the claim was not barred by res judicata. While the hospital, on the other hand, argued that actual and apparent agency are separate and distinct causes of action and therefore the summary judgment on the actual agency counts served to bar any re-filing of claims that could have been brought in the original action.  Fortunately, the Supreme Court concluded that actual and apparent agency are not causes of action and therefore the re-filed claims were not barred.

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Filed under Agency, Civil Procedure, Medical Malpractice

Lamb-Rosenfeldt v. Burke Medical Group, et. al. – Appellate Court Affirms Trial Courts Finding of No Apparent Agency Between Hospital and It’s Chief of Staff

Lamb-Rosenfeldt v. Burke Medical Group, et. al. – 1-10-1558 (Pucinski)

Facts:  Plaintiff’s decedent died from complications related to her lung cancer.  Prior to her death, she had been treated by Defendant, Dr. Burke, at the physicians clinic, Burke Medical Group, on several occasions prior to be admitted to Defendant St. James Hospital, where Dr. Burke had hospital  privileges.  Dr. Burke was not an employee of St. James Hospital but did hold an administrative position as Chief of Staff at the facility.  Over the course of her treatments at St. James Hospital, plaintiff’s decedent signed a consent form containing language above the signature line in BOLD PRINT and ALL CAPS that the physicians were not employees and were independent contractors of the hospital on nine separate occasions.  The lawsuit brought by her Estate included counts against St. James Hospital under an agency theory for the acts of Dr. Burke.  There were no independent allegations against the hospital for institutional negligence, and the sole theory of liability was based upon the doctrine of apparent agency.  The Defendant, St. James Hospital, moved for summary judgment on the issue of apparent agency, which was granted by the trial court and subsequently appealed by the Plaintiff.

Holding:   The Plaintiff failed to present sufficient factual basis to satisfy the elements of “holding out” and reliance necessary to subject St. James to vicarious liability and the trial court was correct in finding the defendant was entitled to summary judgment as a matter of law.

Filed in Trial Book Under:  Apparent Agency

Analysis:  The black letter law for liability under the doctrine of apparent agency requires that the plaintiff establish “(1) the hospital, or it’s agent, acted in a manner that would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital, (2) where the acts of the agent create the appearance of authority, the plaintiff must also prove that the hospital had knowledge of and acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence.”  Gilbert v. Sycamore Municipal Hospital, 156 Ill.2d 511, 525 (1993)  Put simply, there must be some holding out that the hospital and physician are linked and that the plaintiff relied upon the reasonable perception that the physician was an agent of the hospital.

Based upon these facts, at least as they were presented in the appellate court opinion, there really was nowhere for the plaintiff to go in order to keep the hospital in this case under an apparent agency theory.  It is clear that the Appellate Court was more than a bit irritated with Plaintiff’s counsel for not including pertinent facts in the record on appeal, which apparently excluded the Plaintiff’s complete deposition transcript as well as Plaintiff’s written response to the motion for summary judgment!  It’s difficult to imagine appealing a case on the basis that the trial court improperly ruled against you on a summary judgment motion and then not provide the appellate court with your written response, but I guess that’s what happened here.  The result was a very one-sided factual recitation that hit all the notes for the defendant’s position and none for the plaintiff.  The most critical facts in the appellate court’s analysis were (a) the nine separate consent forms that explicitly stated that the physicians were independent of the hospital and (b) that the plaintiff’s decedent was a patient of Dr. Burke at her clinic long before she was ever treated by Dr. Burke in the hospital.  Indeed, one of the relatives testified at her deposition that her mom would have likely gone to any hospital that Dr. Burke chose, so long as the drive wasn’t too inconvenient.  Although speculative and likely inadmissible at trial, it is testimony that significantly undermines the type of reliance by the patient and holding out by the hospital that is required to sustain an apparent agency theory.  The more interesting issue for me, and potentially troublesome for future cases, was the court’s analysis of the chief of staff position held by Dr. Burke as merely being “administrative” and, therefore, of no significance to the outcome.  There’s something about the term “administrative” that seems like spin to me, and I suspect that in future cases this opinion will be cited by counsel for hospitals anytime the treating physician has this type of title.  If the facts had supported that the plaintiff’s decedent chose the doctor specifically because of her high ranking position at the hospital, I would hope to see a different result, particularly within a summary judgment analysis.  In this case, however, the plaintiff’s daughter could not establish whether her mother was even aware of the doctor’s title at St. James while receiving the allegedly negligent treatment.  In short, not all cases are meant for an apparent agency theory and this certainly wasn’t one of them.

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Filed under Agency, Medical Malpractice

Kundert v. Illinois Valley Community Hospital – No Physician-Patient Relationship Created From Single Telephone Call Despite Mother’s Reliance on Bad Advice From Operator to Wait Until the Morning to Contact Pediatrician

The Estate of Kundert v. Illinois Valley Community Hospital, 3-11-0007 (Schmidt)

Facts:  The mother of an infant that was born at Illinois Valley Community Hospital one month earlier called the hospital for medical advice regarding her child’s symptoms of high temperature, being overly fussy and refusing to eat, because she could not reach her pediatrician.  She was told by the individual on the phone from the hospital that (a) she was overreacting, which is typical for new mothers, (b) to administer Tylenol and give the child tepid baths, (c) the symptoms did not require immediate medical attention and to follow-up with the pediatrician in the morning and (d) that the hospital did not have the equipment or medical personnel to provide medical service to infants.  The child presented to her pediatrician the following day and was immediately transferred to the hospital to be treated for bacterial meningitis, which ultimately caused the child’s death.  The Estate filed a medical malpractice suit against the hospital alleging that the medical advice given to the mother via telephone was improper and caused 15 hours of valuable time to be lost which resulted in a delay of medical treatment that could have impacted the outcome.  The hospital moved to dismiss the complaint on the basis that the telephone call did not create a patient-physician relationship sufficient to create a duty, which was granted by the trial court.

Holding:  The telephone call did not create a physician-patient relationship, despite the allegation of advice being given, and the hospital did not knowingly accept the child as a patient so as to create a relationship or duty.

Filed in Trial Book Under:  Medical Malpractice – Physician-Patient Relationship;

Commentary:  This is an unfortunate result on a very sad case.  The general rule on physician-patient relationships requires “a consensual relationship in which the patient knowingly seeks the physician’s assistance and the physician knowingly accepts the person as a patient.” It goes on to state that “plaintiffs would have us hold that a physician-patient relationship is created anytime a physician dispenses advice. That is, the singular act of dispensing any quantum of advice equates to knowing or at least constructive acceptance of a patient. Case law does not support such a holding.”  The appellate court concludes that the individual on the phone “didn’t perform any tests, interpret results or examine (the child)” and then sums up the advice over the telephone as “merely and informal opinion based upon rather common symptoms.”  Clearly, the fact that the hospital representative specifically told the mother that the hospital did not have the equipment or facilities to treat infants was very persuasive to the court and served as its basis for concluding that there was no acceptance of a physician-patient relationship by the hospital.

My problem is with the advice that was given and the reasonableness of a mother relying upon such advice to the ultimate unknowing detriment of her child.  It seems to me that the appellate court took a somewhat cynical and harsh tone with its analysis, and there is one very bold statement that sums up the attitude taken towards this case:

We envision a similar adverse effect on the practice of medicine were we to find the inquiry and informal advice rendered in this matter created a relationship between patient and medical provider. It is, we think, not unreasonable to expect medical providers would attempt to limit their tort exposure. We would expect that the result of finding that this phone call created a physician-patient relationship would be that anytime a parent called and reported a child with a fever, the response would be the same: “Hang up and call 911 or drive your child to an emergency room.” We believe that this would benefit neither the providers nor consumers of medical care. We find public policy supports the trial court’s decision.

I disagree very strongly with this conclusion, particularly given the facts in this case.  I don’t believe that a non-trained and medically unsophisticated mother distinguishes between “informal’ and formal medical advice.  She called the hospital in her area because she couldn’t get a hold of her pediatrician, despite trying to do so first.  She called for the specific reason to get advice and was then given advice.  Very bad advice, in my humble opinion.Had the individual on the telephone done what the appellate court finds so disconcerting, telling the mother to “hang up and seek treatment at the ER”, then the mother might not have been lulled into a false sense of security and the child might have received the prompt care that she needed.  She certainly would have been seen by a pediatrician, or at least a qualified medical physician who would have had an opportunity to see the symptoms first hand and make an informed decision.  My experience and instincts tell me that had the child been seen right away, the result would have been different.  Whether it be for the cynical reason espoused by the court in its opinion, namely to “limit tort exposure,” or the more likely reason, to be certain that sick kids don’t get worse due to a delay in treatment, I believe that medicine and public policy would be better served if the staff at the hospital dispensed with the practice of providing ill-informed advice and were trained instead to advise parents to bring the kid to a hospital if there is ANY doubt or concern.

If anything, there was a voluntary undertaking by the hospital with its direction to the mother to wait until the morning, and they should be held accountable for the scope of their undertaking.  In my opinion, if a jury could conclude that a reasonable hospital should train its telephone operators and other staff NOT to dispense flippant medical advice over the telephone because it is reasonable that the person on the other line might actually rely upon that advice, and the plaintiff could show that jury that the delay in treatment lost in reliance upon that advice was a proximate cause of the death of the child, then a potential cause of action on that basis should be permitted and the family should get their day in court.

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Filed under Medical Malpractice, Negligence