Category Archives: Post Trial

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.

Leave a comment

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

Watson v. South Shore Nursing & Rehabilitation – Award of Zero for Loss of Society Was Improper Where Evidence of Close Relationship Was Unrebutted

Watson v. South Shore Nursing & Rehabilitation Center, LLC, 2012 IL App. (1st) 103730, Gordon

Facts:  Plaintiff’s decedent was a resident of a nursing home who was left unsupervised with smoking materials and caught on fire, causing exptensive burns to his body that ultimately resulted in an infection that caused his death.  The clinical records indicated that he required close monitoring while smoking so an order was entered in the chart preventing him from smoking without supervision.  Plaintiff filed suit on behalf of the deceased adult children who brought survival and wrongful death claims from the incident.  At trial the plaintiff presented a motion in limine seeking to bar any evidence of alternative causes of death because of a lack of any expert testimony to support the theory, which was granted with the exception that evidence would be permitted to show that plaintiff had previously had a stroke and smoked cigarettes.  Plaintiff presented testimony that the decedent and the surviving family had a close-knit relationship and there was no evidence presented to indicate any the of estrangement.  The jury found in favor of the plaintiff and awarded $1,650,547.86, itemized as follows: $1,200,547.86 for medical bills, $150,000 for loss of normal life, $150,000 for pain and suffering and $150,000 for disfigurement, and $ 0 for loss of society.  Plaintiff presented a post-trial motion seeking a new trial on damages and also a petition for costs and fees for the Nursing Home Care Act count totaling $550,182.62, which represented the 1/3 contingency fee.  The trial court rejected the contingency fee as a reasonable basis for assessing fees pursuant to the Act and plaintiff submitted a Fee Summary of $568,000 with the 2 partners billing time at $550 per hour and the associate at $350 for trial work and $450 per hour for deposition and $350 per hour for pre-trial court appearances.  The defendant objected to the petition claiming duplicative billing and rates that were not reasonable and forwarded its own summary totaling $322,110.00.  The trial court denied the new trial on damages and awarded the plaintiff attorneys fees for the amount suggested by the defendants.  Plaintiff appealed.

Holding:  The jury’s failure to award any damages for loss of society was against the manifest weight of the evidence and, therefore, the cause is remanded for new trial on the issue of damages for loss of society.  Also, the trial court’s reduction of attorneys fees requested by Plaintiff was not so unreasonable as to constitute an abuse of discretion.

Filed in Trial Book Under:  New Trial; Damages – Wrongful Death; Attorneys Fees – Nursing Home Care Act

Commentary:  This is a good case on the issue of damages.  The opinion contains a good history of the development of non-pecuniary damages in wrongful death cases in Illinois and cites to several cases that help define the elements of damage for loss of society that should be presented at trial, like “love, affection, care, attention, companionship, comfort and protection.”  A defendant can rebut a claim for loss of society by presenting evidence that there was estrangement between the decedent and the beneficiaries, or that the deceased would have died from unrelated causes even absent the defendant’s conduct.  Neither was done here, so the evidence of loss of society was unrebutted.  This was due in part to the plaintiff presenting evidence from staff members that corroborated their theory that the decedent’s family was close and visited often, which is always a good idea to present this kind of evidence if you can in a nursing home case, and also a strategically effective motion in limine barring the defense from arguing alternative causes of death on the grounds that there was no expert testimony to support such a finding.  This is good work by the plaintiff’s attorneys and left the defendant with nowhere to go on this appeal.  I’m not sure why the jury found zero damages on the loss of society.  It could have been a compromise on other elements, or it could be that the family came across horribly in person and they did not believe the veracity of their loss of society claims.  However, in the written record, there was no other contrary evidence and the appellate court cited cases where a “jury may not arbitrarily reject the testimony of an unimpeached witness” to support its holding to order a new trial.

This case is not so great for plaintiffs on the issue of attorneys fees.  The plaintiff’s attorneys initially tried to get the court to award 1/3 of the judgment pursuant to their contingency fee contract.  However, the trial court rejected that request and required an itemization of time instead.  Although the appellate court here does not outright reject the concept of using a contingency fee as the basis for fees in nursing home cases, it’s application of the Lodestar method seems to imply that total hours multiplied by hourly fees is the appropriate method to use.  Obviously, in large verdict cases, using the contingency fee contract could be very beneficial to the plaintiff and increase the fees significantly, but at the same time, would we want the defendant’s trying to enforce the contingency fee contract on smaller verdicts?  The point of allowing attorneys fees in the first place is to give attorneys the justification to pursue smaller cases against nursing homes.  Therefore, it’s not surprising that the trial court rejected the plaintiff’s request.  It seems as if the fee petition had some holes in it that the defendant was able to exploit, but the plaintiff still ended up with $322,000 in fees plus costs added to the verdict, and they get a new trial on loss of society damages, so it seems like a pretty good result all things considered.

Leave a comment

Filed under Damages, Negligence, Nursing Home, Post Trial

Graham v. Northwestern Memorial Hospital – Record Supported Trial Court’s Finding That Contributory Negligence Instruction Was Improper Because Plaintiff’s Decedent Was Completely Devoid of Reason Prior to Suicide

Graham v. Northwestern Hospital, 2012 IL App (1st) 102609 (Garcia)

Facts: Plaintiff’s decedent was a 49 year-old woman with a history of mental illness and prior suicide attempts.  She was taken to Swedish Covenant Hospital by the police because her family feared for her safety after her suicide attempt with pills and wine.  After being evaluated by her long-time psychiatrist, she refused admission to the hospital and was admitted against her will and then transferred to defendant Northwestern Hospital for in-patient treatment.  During this admission she was often hostile and combative and her psychiatrist testified that she was “falling apart mentally and emotionally” and was “in severe emotional pain.”  Her psychiatrist directed the staff at Northwestern to put her under continuous observation but she was ultimately able to hang herself with a bed sheet and died while under the care and observation of the defendant.  At trial, the jury was instructed on the issue of contributory negligence and found in favor of the plaintiff for $490,196, but assessed the plaintiff’s decedent 49% and reduced the recovery accordingly.  As a result of a set-off from pre-trial settlement with another defendant, the defendant Northwestern Hospital would not be responsible for any payment of damages to plaintiff from the verdict.  Plaintiff filed a post-trial motion arguing that (1) the trial court erred in permitting the jury to be instructed on contributory negligence because the evidence established that plaintiff’s decedent was completely devoid of reason at the time of the incident and therefore incapable of contributory negligence, and (2) the conduct of the defendant’s attorney prejudiced the jury against the defendant.  The trial court found that the evidence required the refusal of the jury instruction for contributory negligence and granted the plaintiff’s motion and ordered a new trial on damages only.  The trial court also based its decision in part on the conduct of defense counsel but did not elaborate upon that basis in its ruling.  Defendant appealed.

Holding:  (1) Trial court did not abuse its discretion in granting a new trial based upon the error of instructing the jury on contributory negligence because evidence supported trial court’s conclusion that plaintiff’s decedent was completely devoid of reason at time of incident, (2) Record did not support a finding of misconduct by defendant’s counsel to support a new trial on that basis, and (3) trial court abused its discretion in ordering new trial on damages only, rather than a new trial on all issues.

Filed in Trial Book Under: Jury Instructions, Contributory Negligence, Suicide, New Trial

Commentary:  I have to admit that when I first started reading this opinion I was mostly looking forward to learning what the misconduct was that the trial court found warranted a new trial.  The opinion does not reveal anything other than that there was some type of verbal scuffle between the lawyers that the judge instructed the jury to disregard, so there is no Real Housewives-like drama or sordid details in the opinion to gossip about.  Not surprisingly, the appellate court made short shrift of this issue and the opinion focuses instead on the contributory negligence instruction and whether the new trial should be limited to damages or on all issues.  On the contributory negligence instruction, this case seems to be pretty favorable for plaintiff’s in future cases involving suicide.  The legal standard pursuant to Hobart requires that the trial court determine that the plaintiff was completely devoid of reason that they are incapable of contributory negligence and this must be the only rational conclusion.  This is a pretty steep hill to climb, but with the facts set forth in this opinion there is some guidance to future plaintiff’s on what evidence is required to meet this difficult standard.

Leave a comment

Filed under Post Trial, Trial

Rodriguez v. Northeast Illinois Regional Commuter R.R. Corp. – Verdict for Plaintiff Awarding Pain & Suffering But No Disability Not Legally Inconsistent

Rodriguez v. Northeast Illinois Regional Commuter R.R. Corp, 1-10-2953 (Connors)

Facts:  The plaintiff is injured on her job as a conductor pulling a switch and files a FELA claim against Metra.  The plaintiff seeks damages from the jury for past and future pain and suffering, disability and lost wages.  The nature and extent of her injury is hotly contested by the defendant through cross-examination of the plaintiff’s expert.  The jury returns a verdict awarding damages for lost wages and pain and suffering, but not disability.  The plaintiff appeals arguing that the verdict is legally inconsistent and the finding of no damages for disability was against the manifest weight of the evidence.

Holding:  The verdict awarding damages for pain and suffering and lost wages relating to an injury claim but no damages for disability was not legally inconsistent because a reasonable hypothesis existed to support the finding.  Further, the trial judge did not abuse its discretion in finding that the verdict was not against the manifest weight of the evidence.

Filed In Trial Book Under:  New Trial – Inconsistent Verdict

Commentary:  The rule for inconsistent verdicts states that a verdict is not considered irreconcilably inconsistent if it is supported by any reasonable hypothesis.  One thing that stood out for me reading this case is that the opinion indicates that there was no instruction defining disability.  Also, all of the expert testimony addressing disability focused upon issues of plaintiff’s ability to work.  For this reason, the Appellate Court concluded that there was a reasonable hypothesis for the jury to award no damages for disability, namely that the award for lost wages covered disability.  This is an unfortunate result for the plaintiff.  I have always struggled with the disability element of damages because people have very different views in what disability or being disabled means.  I always worry that a juror will require a plaintiff to be wheelchair-bound or brain damaged in order to think of them as “disabled.”  Therefore, I typically opt to use the loss of normal life element instead.  There is a specific instruction defining loss of normal life that helps jurors understand the element that they are considering.  The instruction coupled with testimony from the plaintiff, and hopefully the treating physicians, should be sufficient evidence to support a finding of damages for loss of normal life as a separate element from the others.  This still doesn’t mean that a finding of no damages is against the manifest weight of the evidence.  As this opinion points out in it’s citations, the jury is free to weigh the credibility of the evidence and to accept or reject evidence that is presented at trial.  For me, this case is a reminder of how important it is to keep the jury instructions in mind while presenting evidence and to be sure to admit evidence that covers all of the elements that need to be proven and that you will be arguing to the jury during closing arguments.  There was also a discussion in this case about an issue relating to the scope of re-direct examination, where the plaintiff tried to raise issues from a report that had been barred due to Rule 213 but argued that the defendant had opened the door in its cross examination of the plaintiff’s expert.  These issues are typically very fact specific and the court, not surprisingly, found that the trial court had not abused its discretion in limiting the re-direct examination.

Leave a comment

Filed under Federal Employers Liability Act, Post Trial, Trial, Uncategorized