PENALTY FLAGS: CASE UPDATE HOW DO THESE CASES CHANGE THE GAME PLAN?

Transcription

1 PENALTY FLAGS: CASE UPDATE HOW DO THESE CASES CHANGE THE GAME PLAN? Presented and Prepared by: Lindsey M. D Agnolo ldagnolo@heylroyster.com Rockford, Illinois Amee Lakhani alakhani@heylroyster.com Chicago, Illinois Andrew J. Roth aroth@heylroyster.com Chicago, IL Heyl, Royster, Voelker & Allen, P.C. PEORIA CHAMPAIGN CHICAGO EDWARDSVILLE ROCKFORD SPRINGFIELD 2017 Heyl, Royster, Voelker & Allen, P.C. G-1

2 PENALTY FLAGS: CASE UPDATE HOW DO THESE CASES CHANGE THE GAME PLAN? I. COLLATERAL SOURCE RULE... G-3 II. NO REDUCTION OF JUDGMENT... G-3 III. HEALTH CARE SERVICES LIEN ACT... G-3 IV. DEAD MAN S ACT... G-4 V. INTENTIONAL ACTS HEIGHTEN DUTY... G-4 VI. NO BREACH OF DUTY, NO NEGLIGENCE... G-5 VII. AGENCY... G-5 VIII. FORUM NON CONVENIENS... G-5 IX. REASONABLENESS AND PROPORTIONALITY IN ESI... G-6 X. PETRILLO... G-6 XI. ALTERNATE JURORS... G-7 XII. JURY SIZE... G-7 XIII. TIMELY NOTICE... G-7 The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted. G-2

3 PENALTY FLAGS: CASE UPDATE HOW DO THESE CASES CHANGE THE GAME PLAN? I. COLLATERAL SOURCE RULE Klesowitch v. Smith, 2016 IL App (1st) Following a plaintiff s verdict in a case involving a motor vehicle accident, the first district issued a remitter reducing the verdict award. The issue concerned the collateral source rule and which medical bills could properly be submitted to the jury. The court acknowledged the collateral source rule in Illinois, which allows a plaintiff to submit the full amount of medical bills charged as opposed to what was actually paid. However, the court drew a distinction between the foundations required for medical bills paid versus charged. Following the Supreme Court authority in Arthur v. Catour, 216 Ill. 2d 72, 80 (2005), the first district found that the amounts paid were prima facie reasonable. However, the first district found that the trial court erred in allowing the written-off portion of the bill to be submitted to the jury. The court found that there was no such presumption of reasonableness with unpaid or written-off medical bills and that the plaintiff had failed to establish that the written off portions were fair and reasonable. The court remanded the case to the trial court to reduce the verdict award accordingly. II. NO REDUCTION OF JUDGMENT Miller v. Sarah Bush Lincoln Health Center, 2016 IL App (4th) The fourth district reversed the trial court s order allowing the medical providers to reduce a judgment against them by an amount previously written-off by the providers. In this medical malpractice action, a verdict in favor of the plaintiff included an amount for itemized medical expenses. A portion of that award was an amount that the medical providers previously wrote off from plaintiff s bills and were never paid by any party. The trial court allowed the medical providers to reduce the judgment by the amount written-off. In reversing the trial court s decision, the fourth district held that the plain statutory language of section of the Code of Civil Procedure was only intended to apply if the benefits were paid to the medical providers or paid directly to the plaintiff. The court distinguished its holding from the second district s decision in Perkey v. Portes-Jarol, 2013 IL App (2d) , because the only issue on appeal before the second district was whether the right to a recoupment prevented a reduction from the entire judgment. In Perkey, the court held any amount subject to recoupment could not be reduced from the judgment, but that other amounts paid could be (incidentally, the amount reduced included amounts written-off by medical providers). III. HEALTH CARE SERVICES LIEN ACT McKim v. Southern Illinois Hospital Services, 2016 IL App (5th) The fifth district reversed the trial court s ruling and held that Medicare, Medicare Part D and Medicaid should not be G-3

4 included in the 40 percent limit imposed by the Health Care Services Lien Act (the Act) because the Act was preempted by the Medicare Secondary Payer Act and conflicted with the Public Aid Code. Besides preemption by federal statutes and regulations, the court also noted that the Act prohibits the total amount of medical liens from any health care professional and health care provider from exceeding 40 percent of the total settlement or verdict amount. Medicare and Medicaid are public agencies that do not provide medical care, but instead, reimburse health care professionals and providers. Thus, given the plain language of the Act, the court held that Medicare and Medicaid are not health care providers or professionals within the meaning of the Act. IV. DEAD MAN S ACT Peacock v. Waldeck, 2016 IL App (2d) The second district affirmed the trial court s granting of summary judgment for a defendant estate in an auto accident case. This case addressed two main issues: (1) Whether a rear-end accident establishes prima facie evidence of negligence; and (2) How the Dead Man s Act can impact evidentiary issues even at the summary judgment stage. In this case, the defendant passed away prior to trial and prior to giving testimony. The only evidence was the defendant s answer, where he admitted rear ending the plaintiff, but denied negligence. After the defendant passed away and an administrator was substituted as the party defendant, the administrator moved for summary judgment arguing that plaintiff could not prove negligence due to the Dead Man s Act, which states that no interested party may testify on their own behalf to an event which occurred in the presence of the decedent. There are a number of exceptions to this rule, but none were argued here. In affirming summary judgment, the appellate court held that evidence of a rear-end accident was not in and of itself evidence of negligence, and that plaintiff would not be able to meet her burden of proof at trial due to the application of the Dead Man s Act. V. INTENTIONAL ACTS HEIGHTEN DUTY Libolt v. Weiner Circle, Inc., 2016 IL App (1st) Plaintiff brought an action against a wellknown late night Chicago eatery. It was undisputed that part of the restaurant s gimmick is to have the wait staff exchange banter with customers. Much of their business is after hours, and they cater to younger adults, many of whom are intoxicated. The plaintiff in this case was standing in line when another customer was bantering with the wait staff. This unknown customer then unexpectedly charged into the plaintiff, causing her to fall and break her arm. The plaintiff sued the restaurant, arguing that they had a heightened duty to customers due to the environment they created. The trial court disagreed, granting summary judgment and holding that there was no higher duty of care recognized under the law and that the restaurant was not responsible for actions of the third party who caused the injury. The appellate court reversed. The appellate court found that, generally, restaurants have a duty of reasonable care to customers lawfully on the premises. However, when the restaurant intentionally creates a rowdy G-4

5 atmosphere and caters to an intoxicated clientele, they will be liable for foreseeable occurrences such as the injuries in this case. VI. NO BREACH OF DUTY, NO NEGLIGENCE Estate of Case v. Hanneman, 2016 IL App (2d) Plaintiff brought an action against a semi-truck driver and his employer after being T-boned in her car at an intersection. Following discovery, defendants moved for summary judgment, which was granted by the trial court and affirmed on appeal. This case is remarkable because summary judgment was granted based on the breach element of the traditional negligence analysis. Whether a defendant breached a duty to the plaintiff is typically a question of fact. Plaintiff in this matter argued any number of potential breaches, including circumstantial evidence that defendant was speeding; defendant was driving too fast for conditions; defendant had a duty to slow down when approaching an intersection or other hazard; and defendant was distracted or otherwise failed to keep a proper lookout. The court held that there was no evidence to support any of these inferences and that no reasonable jury could find that defendant was negligent. VII. AGENCY Jacobs v. Yellow Cab Affiliation, Inc., 2017 IL App (1st) Plaintiffs brought an action after being injured in a high speed collision while riding in a taxi cab. The jury returned a verdict in favor of the plaintiffs for nearly $26 million. One of the issues on appeal was whether the trial court properly denied defendant s motion for directed verdict as to whether the owner of the cab was an apparent agent of Yellow Cab Affiliation, Inc. It was undisputed that the owner of the cab was an affiliate of Yellow Cab and legally an independent contractor. However, the cab in question had Yellow Cab s distinctive color, name, and logo on the side of the cab. Under Illinois law, a principal can be liable for its apparent agent if the plaintiff can show: (1) that the principal held the agent out as having authority or knowingly acquiesced in the agent's exercise of authority; (2) based on the actions of the principal and agent, the third person reasonably concluded that an agency relationship existed; and (3) the third person relied on the agent's apparent authority to his detriment. The appellate court held that apparent agency determinations are generally not questions of law, but rather, questions of fact for the jury. The appellate court rejected the numerous claims of error by Yellow Cab and upheld the plaintiffs verdict. VIII. FORUM NON CONVENIENS Foster v. Hillsboro Area Hospital, Inc., 2016 IL App (5th) Plaintiff brought a medical malpractice action in Madison County, Illinois, alleging failure to diagnose and timely treat a gastric ulcer. The main issue on appeal was whether the trial court properly denied defendant s motion to transfer the matter to Montgomery County, where the alleged malpractice occurred. G-5

6 The court performed an analysis of the relevant private and public factors and held that defendants did not meet their burden of establishing that the balance of factors strongly favored transfer and affirmed the trial court s ruling. Part of the court s rationale included advancements in technology. For example, with the internet and , medical records can easily be shared between the law offices by electronic means, rendering their actual physical location less relevant. This type of reasoning will make combating forum shopping by plaintiff s firms more challenging. IX. REASONABLENESS AND PROPORTIONALITY IN ESI Carlson v. Jerousek, 2016 IL App (2d) This matter arose out of an appeal from a contempt finding. At issue was the reasonableness and proportionality of a discovery request seeking electronically stored information (ESI) from a private citizen litigant in a civil case. The plaintiff claimed injury from a motor vehicle collision. Defendant initially served interrogatories and production requests to plaintiff for ESI, which was answered in part and objected to in part. The defendants sought to have all five of plaintiff s personal computers assessed by a forensic expert. The court allowed this discovery and plaintiff refused to comply, resulting in the contempt finding. On appeal, the second district reversed, finding that a complete forensic examination of plaintiff s computers was far too broad and intrusive into plaintiff s privacy. Specifically, the court found that while it may indeed reveal relevant information, the request was not proportional in that it would also necessarily reveal a large amount of data regarding plaintiff s personal life that have no bearing on the lawsuit. The court vacated the contempt finding and remanded the case to the trial court. X. PETRILLO McChristian v. Brink, 2016 IL App (1st) In this case, the first district s ruling modified the application of the Petrillo Doctrine. The Petrillo Doctrine prohibits ex parte communications between the plaintiff s treating physicians and defense counsel, except in certain limited circumstances, in order to preserve the sanctity of the doctor-patient relationship. The first district further modified the parameters of Petrillo by holding that an attorney for a corporate defendant and the primary defendant can have ex parte communications with the plaintiff s subsequent treating physician, when that physician is a partner who is a member of the control group of the corporate defendant. However, before any ex parte communications take place, the court qualified that the plaintiff must first be given an opportunity to depose the physician regarding nature and extent of injuries. Subsequently, defense counsel can have ex parte communications with the treating partner who is a member of the control group with regard to standard of care and causation. This ruling is important because it provides for adequate defense of a corporate defendant while protecting attorney-client communications. G-6

7 XI. ALTERNATE JURORS Bosman v. Riverside Health System, 2016 IL App (3d) The third district decided that the trial court abused its discretion when it replaced a juror with an alternate juror after deliberations had begun. In this case, the 12-person jury began deliberations and the trial court retained the two alternates with admonishments not to discuss the case. During deliberations, a juror sent the trial court a note indicating that the jury was deadlocked due to one juror. The note indicated the one juror showed significant bias which inhibited her from giving fair consideration to the evidence and both parties. After examining the juror, the court determined she was biased and unable to fairly decide. The court dismissed the juror and replaced her with the first alternate. On appeal, the third district held that the trial court erred when it replaced the juror with an alternate after deliberations had begun. The court noted that section 5/2-1106(b) of the Code of Civil Procedure indicates that alternate jurors shall replace jurors who become unable to perform their duties prior to commencing deliberations. Here, the court indicated the trial court had two options: 1) order the jury to continue deliberations; or 2) declare a mistrial. XII. JURY SIZE Kakos v. Butler, 2016 IL On June 1, 2015, Public Act limited the size of a civil jury to 6 persons as opposed to a 12-person jury. In this case, the Illinois Supreme Court held that Public Act was unconstitutional because it violated the common law right of trial by jury of 12 persons as guaranteed by the Illinois Constitution, Article I, Section 13. The Court noted that it has long included the 12-person size jury within its descriptions of the essential features of jury trials. The Court indicated that the drafters did not intend for the legislature to have the authority to reduce the size of a jury below 12 members. Prior to the Supreme Court s ruling, parties demanding a jury of 12 were incurring higher costs for the additional jurors. Further defendants and insurers, were faced with more unpredictable and inaccurate verdicts that could result from a smaller panel. XIII. TIMELY NOTICE Owens v. VHS Acquisition Subsidiary No. 3, Inc., 2017 IL App (1st) Plaintiff filed a medical malpractice action five days prior to the expiration of the statute of limitations. The emergency room physician defendant filed a motion to dismiss arguing that it was not him but his partner who actually treated the plaintiff. Plaintiff was given leave to amend the complaint to add the correct physician, who then moved for dismissal based on the expiration of the statute of limitations. Plaintiff responded that the addition of the new doctor was proper under the relation back doctrine. The court held on appeal that the critical issue in the case was not whether the plaintiff had knowledge of the proper defendant and made a mistake, but rather whether the defendant had knowledge that there was a suit pending and that they would be named, but for a mistake in identifying the proper party. The new defendant doctor stated that he had no knowledge of the pending lawsuit until he was served with process after the G-7

8 limitations period had expired. While it is undisputed that the doctor had no actual notice, the court answered the certified question stating that notice could be established through constructive notice. There are three methods of establishing constructive notice: (1) same attorney; (2) identity of interests; and (3) shared insurance carrier. The court remanded the case to the trial court to determine whether the factual record establishes that any of these three methods of establishing constructive notice applies to this case. G-8

9 Lindsey M. D Agnolo - Associate Lindsey focuses her practice on the defense of civil litigation, including medical malpractice, nursing home/long term care, workers compensation and employment and labor litigation and counseling. She has handled all aspects of litigation including initial assessment, pleading, discovery, motion practice, and trial preparation. Lindsey s practice is focused on defending physicians, healthcare workers and employers in all aspects of litigation. Lindsey received her J.D. from California Western School of Law in San Diego in While in law school, she gained significant litigation experience when she spent her last semester interning in the Winnebago County State's Attorney's Office as a 711 intern. Lindsey also gained valuable research and writing skills when she served as judicial extern for the Honorable Judge Frederick J. Kapala in the U.S. District Court, Northern District of Illinois. Lindsey received her bachelor's degree from the University of Illinois Urbana Champaign in She is a member of the Illinois State Bar Association and Winnebago County Bar Association. Lindsey is currently serving as Treasurer of the Winnebago County Bar Association, Young Lawyers Division. Publications Recent Appellate Court Decisions Provide Guidance on Analysis of Injuries Resulting from Everyday Activities, Illinois Defense Counsel Quarterly (2017) OSHA s Final Rule on Recording and Reporting Workplace Injuries, Employer s Edge, Heyl Royster Employment Newsletter (2017) The Year in Review 2016, Below the Redline, Heyl Royster Workers Compensation Newsletter (Special Edition 2016) Recent Decision Addresses What Constitutes Incidental to Employment in Arising Out Of Analysis, Workers' Compensation E-clip (2016) Guidance for Compliance: New EEOC Resource Document Aids Employers in Complying with the ADA When Leave is Requested, Employer s Edge Heyl Royster Employment Newsletter (2016) Public Speaking Drug and Alcohol Policies and Issues OrthoIllinois Occupational Health (2016) Sexual Harassment Awareness and Prevention Heyl Royster Employers' Day Seminar (2016) Drug and Alcohol Policies and Issues Heyl Royster Employers' Day Seminar (2016) Professional Associations Winnebago County Bar Association (Vice Chair, Trial/Appellate Section; Vice President, Young Lawyers Division, ) Illinois State Bar Association Workers Compensation Lawyers Association IGNITE Rockford, Young Professionals Association Court Admissions State Courts of Illinois United States District Court, Northern District of Illinois Education Juris Doctor, California Western School of Law, 2011 Bachelor of Arts-Economics, University of Illinois, 2008 G-9 Learn more about our speakers at

10 Amee Lakhani - Of Counsel Amee concentrates her practice on civil litigation defense, with a large focus on the representation of healthcare professionals and organizations in a broad range of issues. In addition to defending professional liability cases, Amee counsels healthcare clients on issues relating to risk management, contracting, accreditation and licensure, policies and procedures, regulation and compliance, and fraud and abuse. Her experience includes serving as a Director of Risk Management for an Illinois healthcare clinic. Amee s clients have included physicians, physician s assistants, nurses, mental health providers, nursing home caregivers, healthcare administrators, as well as hospitals, long-term care facilities, home healthcare services, networks, and other healthcare organizations. Amee has represented insurance companies and their insureds in various matters involving coverage disputes, premises liability, homeowners insurance, auto liability, underinsured and uninsured motorist coverage, as well as claims arising out of construction site issues. Amee's practice also includes immigration and nationality law, and she has appeared before the U.S. Citizenship and Immigration Services and the Department of Homeland Security. Amee has been actively involved with the Illinois Association of Healthcare Attorneys, the American Society for Risk Management, the Chicagoland Healthcare Risk Management Society, the Chicago Bar Association, and has conducted seminars on healthcare issues and risk prevention to professional groups and medical associations. Amee joined Heyl Royster in 2016, after spending seven years with another litigation defense firm. She received her J.D., with a Certificate in Health Law, from DePaul University College of Law, where she was a published member of law review. During law school, she clerked for the Honorable Drella Savage of the Circuit Court of Cook County. Publications Federal Judge Blocks Rule That Would Ban Arbitration in Nursing Home Disputes, Heyl Royster Medicolegal Monitor Newsletter (2016) "Timeshare Arrangements Exception to Stark Law Offers Opportunities in Rural/Underserved Communities," American Bar Association, Health Law Litigation (2016) Public Speaking Physician Employment Contracts: What Doctors Need to Know St. Alexius Medical Center (2015) Effective Risk Management Practices Northwest Community Hospital (2014) Summary of Stark Exceptions and Anti- Kickback Safe Harbors West Lake Clinic (2013) The Transition to Electronic Health Records West Lake Clinic (2012) Professional Associations Indian American Bar Association Asian American Bar Association Chicago Bar Association American Society for Healthcare Risk Management Chicagoland Healthcare Risk Management Society Illinois Association of Healthcare Attorneys Court Admissions State Courts of Illinois United States District Court, Northern District of Illinois Education Juris Doctor, DePaul University College of Law, 2007 Bachelor of Arts-Psychology and Biology (cum laude), Saint Louis University, 2003 G-10 Learn more about our speakers at

11 Andrew J. Roth - Partner Andy's practice is focused on defending toxic tort and asbestos cases, and healthcare professionals in both medical malpractice litigation and federal civil rights lawsuits. Licensed in Illinois and Wisconsin, Andy also has a wide range of experience defending civil cases involving premises, auto and product liability, trucking, construction, dramshop, and insurance coverage. Andy has tried a number of cases involving medical malpractice, personal injury, and contractual disputes. He has also represented clients in alternative dispute resolution, including mediations, settlement conferences, and arbitrations. He has deposed countless plaintiffs, experts, treating physicians, codefendants, and witnesses. Andy graduated magna cum laude from Northern Illinois University College of Law in 2003, and served as an associate editor on the school's Law Review. Andy began his career at Heyl Royster by clerking in the firm's Rockford office. Significant Cases Represented defendant cardiothoracic surgeon at jury trial in the defense of allegations that defendant doctor improperly operated on the wrong vessel during a coronary artery bypass surgery (CABG). Plaintiff, who had a prior history of CABG presented with unstable angina, and an angiogram showed a clogged obtuse marginal vessel (OM). Defendant doctor recommended CABG. A post-surgery angiogram showed that the bypass graft was on the left internal mammary artery as opposed to the intended OM. An additional surgery then proceeded placing a stent in the OM, resulting in plaintiff having little if any coronary symptoms at the time of trial. Plaintiff claimed the doctor bypassed the wrong vessel and that he was therefore required to undergo an additional surgery, that his damages included additional morbidity and mortality. The defense argued that significant scar tissue existed on the second CABG that obscured the features and vessels in the heart. The jury returned a verdict for defense on all counts. Defended pain management doctor at jury trial against claims that the doctor improperly utilized a brachial plexus injection that pierced the plaintiff's long thoracic nerve, allegedly resulting in a deformity known as a "winged scapula." Plaintiff presented to defendant doctor with a serious condition known as Reflex Sympathetic Dystrophy Syndrome (RSD). Plaintiff's theory was that when defendant doctor treated the plaintiff with brachial plexus injections, he inadvertently pierced her long thoracic nerve causing permanent injury, including a winged scapula. The defense argued that the treatment resolved the plaintiff's limb threatening RSD symptoms, and it was physically impossible for the brachial plexus needle to pierce the long thoracic nerve as alleged by plaintiff. The jury returned a verdict for defense on all counts. Certain Underwriters at Lloyd's London v. Central Mutual Insurance, 2014 IL App (1st) Representation of Central Mutual Insurance Company (Central) and its insured (Subcontractor) in a case in which the general contractor (Builder) and its insurer, Certain Underwriters at Lloyd's London (Underwriters) claimed that Central should have been the primary insurer in regard to coverage for severe personal injuries that allegedly occurred to a worker at a home construction site. The dispute arose because, although the subcontractor was contractually obligated to maintain insurance for the builder, the subcontractor agreement was silent as to whether this additional coverage was to be primary or excess. At the trial court level, the firm succeeded in getting Underwriter's declaratory action dismissed on motion for summary judgment, and Underwriters appealed. On appeal, the first district agreed with the firm in holding that Central's insurance would be considered excess and there would be no duty to defend or indemnify unless the primary limits were exceeded. G-11 Learn more about our speakers at

12 Public Speaking New Cases, New Issues? Heyl Royster's 31st Annual Claims Handling Seminar (2016) Recent Developments in Premises Liability Heyl Royster's 30th Annual Claims Handling Seminar (2015) Professional Associations Illinois State Bar Association Illinois Association of Defense Trial Counsel Defense Research Institute Winnebago County Bar Association Wisconsin State Bar Association Chicago Bar Association Court Admissions State Courts of Illinois State Courts of Wisconsin United States District Court, Northern District of Illinois United States District Court, Eastern District of Wisconsin United States District Court, Western District of Wisconsin Education Juris Doctor, Northern Illinois University College of Law (magna cum laude), 2003 Bachelor of Science-Psychology, Western Illinois University, 1996 G-12 Learn more about our speakers at