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Summer 2007 



Alert: Damages for family's grief 
and sorrow now allowed

By William T. Young

William T. YoungIn May, Governor Rod Blagojevich signed into law legislation that amends the Wrongful Death Act. Juries now will be able to award damages for “grief, sorrow, and mental suffering” to the surviving spouse or next of kin of the deceased. The changes apply to causes of action accruing on or after May 31, 2007. While this trend has been slowly gaining steam across the country - a total of 23 states now allow such damages - the implications will nonetheless be significant.

Even prior to this recent amendment, the limitations on recoverable damages under the Wrongful Death Act have been eroded over the last few decades. Enacted in 1853, the Wrongful Death Act limited recovery to pecuniary damages as a result of a death of a spouse or parent. Two relatively recent Illinois Supreme Court decisions, however, expanded the damages recoverable. In a 1982 decision, the high court held that loss of consortium was compensable as a pecuniary injury under the act. Two years later, the high court held that parents were entitled to a presumption of pecuniary injury from the loss of a deceased child’s society and companionship.

These Illinois Supreme Court decisions established a framework for juries to follow when assessing the damages to be awarded in wrongful death cases. These decisions further demonstrated that juries would bear the responsibility for determining the appropriate measure for those damages. Over the past few decades the high court has construed pecuniary damages liberally, thereby expanding the meaning of “pecuniary.”

Regardless, it is clear that the recent amendment is a cause of concern for the medical profession and defense attorneys. While many assert that the expansion of compensable damages under the Wrongful Death Act is beneficial for the families of decedents, some question the unfavorable impact on the health care system. Awarding damages for grief, sorrow and mental suffering of survivors may increase wrongful-death verdicts in Illinois, inject sympathy into deliberations and divert the jury’s attention from liability issues. Legislators in support of the amendment contend that disallowing such damages reduces the deceased to an economic asset, even though this view is ostensibly inconsistent with the original rationale and purpose of the Wrongful Death Act.

Notably, this recent amendment was instituted in the wake of the recently passed legislation capping the amount that a plaintiff can recover for non-economic damages in medical malpractice and personal injury cases to $500,000 per doctor and $1 million per hospital. While the impact of these caps has yet to be realized, the recent amendment to the Wrongful Death Act will likely renew the debate regarding the extent to which the legislature should intervene to limit or expand jury awards. The amendment appears to undermine the cap on non-economic damages by providing plaintiffs a new avenue to pursue damages.

The amendment begs the question as to whether the original purpose and intent of the damages available under the Wrongful Death Act have now been rendered unrecognizable by the decade’s long expansion in interpretation. The amendment is unclear with respect to its scope and applicability. It is vague, for example, on how much the next of kin, assuming that there are several, can recover individually on these damages. The amendment may result in higher verdicts and settlements in cases with limited alternative non-economic damages, but will be unlikely to affect cases in which the cap is already limiting the apparent non-economic damages. As a result of the amendment, however, the medical industry should prepare itself for the potential of higher verdicts and costlier settlements.

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Establishing standard of care testimony of 
non-physician witness through physician testimony

By Jared M. Scott

Jared M. ScottIn a recent 1st District Appellate Court decision, Petre v. Cardiovascular Consultants, S.C., after the third trial of plaintiff’s medical malpractice claim resulted in a verdict against a surgeon and his corporation, the 1st District held that the trial court erred in denying the corporation’s request for a new trial. The plaintiff’s sole evidence of the standard of care required of a non-physician employee was a statement by a surgeon that the failure to communicate lab results was a breach of the standard of care. The 1st District held this was insufficient to establish that the surgeon was familiar with the standards and procedures of staff employees regarding following up on lab cultures. Therefore a new trial was warranted.

Petre applied the rationale of the holding in Sullivan v. Edward Hospital as to when a physician may opine on the standard of care for non-physicians. In a medical malpractice action, a proffered expert must first satisfy three requirements: (1) the expert must be licensed in the defendant’s given school of medicine; (2) the expert must show that he is familiar with the methods, procedures and treatments ordinarily observed by others in the defendant’s community or a similar community; and (3) if the first two elements are satisfied, the trial court exercises discretion to determine if the proffered expert is competent to testify in the particular case.

In Sullivan, the Supreme Court held a physician cannot testify to the standard of care for nursing procedures. In Wingo v. Rockford Memorial Hospital, the Supreme Court recognized a limited exception to the licensing requirement, holding that where allegations of negligence do not pertain to a nursing procedure, but rather to a communication with a physician, the licensing requirement does not apply. However, Wingo held the party offering such testimony must first establish the second prong of the Purtill test by establishing that allegations of negligence were within the expert’s knowledge and expertise.

In Petre, the court found that plaintiff was relieved of the licensing requirement, as the theory of negligence involved a communication from a staff member to a physician. This widens the scope of Sullivan from the nursing field to staff employees. However, Petre further held that the plaintiff failed to establish the proffered expert was familiar with the methods, procedures and treatments ordinarily observed by other staff employees of the practice. Without meeting this foundational requirement the expert was unqualified to testify.

This case underscores the necessity of choosing expert witnesses carefully when the expert will be offering testimony against a party licensed in a different school of medicine, and the concomitant need to provide ample evidence of the experts familiarity with the area at issue.

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Attorney's fees awarded despite being disproportionate 
to damages in recent nursing home cases

By Sammi L. Renken 

Sammi L. Renken
The Illinois Nursing Home Care Act allows the court to award payment of attorney’s fees if the plaintiff is successful in receiving a favorable verdict. Attorney’s fees do not have to be directly proportionate to the damages sustained by a resident. Additionally, attorney’s fees are typically based on the skill of a lawyer, the nature of the case and the usual and customary charges that are accrued. Historically, the successful plaintiff may also recover costs, and this has been broadly interpretated. Regarding awarding attorney’s fees, the act provides:

“The licensee shall pay the actual damages and costs and attorney’s fees to a facility resident whose rights . . . are violated.” 210 ILCS 45/3-602 (West, 2004).

In a decision filed June 7, 2007, Illinois courts continue to hold that successful plaintiffs may receive an award of attorney’s fees under the Illinois Nursing Home Care Act. In Rath v. Carbondale Nursing and Rehabilitation Center, Inc., the appellate court upheld an award of $90,000 in attorney’s fees where the total verdict for the plaintiff was $200,000. This award was upheld despite the fact that the plaintiff had a contingency fee contract allowing for one-third of recovery in fees. The court reasoned that the fee-shifting provision of the Nursing Home Care Act is mandatory and supported attorneys’ fees valued at almost half of the amount of the total verdict. The court also reasoned that an award of attorneys’ fees is in line with the goal of encouraging private enforcement of compliance with the Act. The determination of what constitutes a reasonable fee is up to the discretion of the trial judge. The decision specifically states that a contingency fee agreement should not establish a ceiling on the award. The determination of what constitutes a reasonable fee is left to the discretion of the trial judge.

This recent decision in Rath highlights that even nursing home cases that have limited damages exposure can quickly become more expensive to resolve when taking into account the provision of attorney’s fees. If the plaintiff successfully tries the case to verdict, then the attorney will indeed be eligible for attorney’s fees. The precedent is clear that the amount of the attorney’s fees does not have to be commensurate or proportionate to the amount of the verdict. When valuing a case involving the Illinois Nursing Home Care Act, attorney’s fees should always be calculated into the exposure assessment.

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First District Appellate Court gives plaintiffs
easier road to 213 compliance

By Sean P. Hussey

Sean P. HusseyIn an opinion issued on June 22, 2007, the First District Court of Appeals in Nedvekas v. Fung held that Supreme Court Rule 213(f)(2) can be used by the plaintiff to avoid summary judgment even when the plaintiff disclosed only an independent expert witness and failed to provide not only specific disclosures as to the substance of that independent expert’s testimony but also a foundational basis for that testimony.

In Nedvekas, initial discovery was completed and the plaintiff was given numerous extensions of time to disclose her 213(f)(1)(2) and (3) witnesses. After violating the third court order requiring her to disclose her witnesses and failing to attend the status hearing regarding these violations, the court barred plaintiff from “introducing at trial all Illinois Supreme Court Rule 213(f)(2) witness testimony not previously disclosed and all Illinois Supreme Court Rule 213(f)(3) witness testimony for failure to comply with court orders.”

Seven days later the plaintiff filed and served 213(f)(1)(2) and (3) disclosures, including testimony from a retained expert who would opine that there was a deviation from the standard of care by the defendant and that the deviation was causally related to the plaintiff’s alleged injury. Defendant subsequently filed a motion for summary judgment pursuant to 735 ILCS 5/2-1005 arguing that plaintiff was unable to meet her burden of proof as she was unable to provide expert testimony regarding deviations from the standard of care. While defendant’s motion for summary judgment was pending, the plaintiff filed a motion seeking to vacate the order barring her witness disclosures. The court denied plaintiff’s motion to vacate the prior order and granted defendant’s motion for summary judgment because plaintiff had been barred from introducing expert testimony capable of establishing that the defendant deviated from the standard of care and caused plaintiff’s injuries.

On appeal, plaintiff argued two theories: 1) that the court abused its discretion in barring the plaintiff’s witnesses; and 2) that plaintiff had properly disclosed a 213(f)(2) independent expert witness who had knowledge that the defendant deviated from the standard of care and that the acts and omissions caused the injuries suffered. This bare-bones disclosure was made in response to plaintiff’s initial interrogatories and lacked any additional substance or basis.

The court summarily rejected the plaintiff’s abuse of discretion argument and upheld the long-standing precedent that it is within the discretion of the court to determine if discovery sanctions are warranted. The court then turned to the issue summary judgment and the requirements under Supreme Court Rule 213(f)(2) as it applies to meeting the threshold for maintaining a medical negligence cause of action.

The court held that a treating physician is considered a Rule 213(f)(2) independent expert witness and that a plaintiff may rely upon the testimony of a treating physician in proving her medical negligence action. Given that the plaintiff in Nedvekas disclosed a treating physician prior to the court’s order barring witnesses, that expert’s testimony was not barred. As such, the order did not entirely prevent the plaintiff from presenting expert testimony that the defendant deviated from the standard of care.

The court differentiated the disclosure requirements for 213(f)(3) (retained expert witnesses) from those for 213(f)(2) (independent expert witnesses) by stating that the basis for treating physicians and other uncontrolled experts need not be disclosed by plaintiff. The court also reiterated that 213(f)(2) requires only the subject upon which the witness will testify to be disclosed, including the opinions the party expects to elicit. Since the plaintiff in Nedvekas disclosed that the treating physician had knowledge that the defendant deviated from the standard of care and that the defendants acts caused the plaintiff’s injuries, the plaintiff’s disclosure complied with the rule even if it was a bare bones disclosure.

The appellate court also discussed the defendant’s failure to submit his own affidavit, stating that he had not deviated from the standard of care to substantiate his motion for summary judgment. Had the defendant provided such an affidavit the court may have required plaintiff to provide a more thorough disclosure or a counter-affidavit. The court ruled that the plaintiff’s limited disclosure of an independent expert who had knowledge of the defendant’s deviation from the standard of care was sufficient to avoid summary judgment where the defendant had not filed an affidavit since the defendant had not met its burden of producing evidence that there was no violation of the standard of care. The court stated that the defendant needed to do more than point out a deficiency and that an affidavit may have done more to shift the burden to the plaintiff to prove that there was a genuine issue of material fact.

Due to the restrictions imposed upon defense counsel in having ex parte communications with treating physicians, plaintiffs frequently are at an advantage in disclosingopinions of treating physicians. Unlike defense counsel, plaintiffs’ counsel is free to meet with treating physicians to discuss the merits of their case and to make only very general, non-specific disclosures with respect to those physicians’ opinions. The Nedvekas case now allows plaintiffs to overcome a motion for using information obtained through such ex parte communications with only limited disclosure to defendants.

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Healthcare Law Alert is a periodic publication of Johnson & Bell, Ltd. and should not be used or relied upon as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only and you are encouraged to consult with one of the attorneys listed above concerning this newsletter or your situation on any specific legal questions you may have. © 2007 Johnson & Bell, Ltd.