Inside this issue - SmithAmundsen LLC

S p r i n g 2 0 0 7
n e w s a n d e v e n t s o f i n t e r e s t
to SmithAmundsen clients.
Inside this issue
CONTENTS:
• Featured Article - “Wrongful Death
Awards and the Judicial Conscience”..............1
• Spotlight - Inhak Lee....................................3
• Recognitions....................................................5
• Update on Consent......................................6
• Publications & Presentations...................6
• At a Glance......................................................7
• From the Courts............................................7
• Legislative Update........................................9
• Workers’ CompensationHighlight.......10
QUARTERLY CONTRIBUTORS:
• George Kages, Editor
• Cynthia Besecker
• Carmel Cosgrave
• Donna Fernandez
• Linda Newman
• Jennifer Stuart
• William Dury
Health Care
q u a r t e r l y
Wrongful Death awards and the Judicial
Conscience: Mikolajczyk v. Ford and other
issues under the Wrongful Death Act
By Carmel M. Cosgrave and Jennifer K. Stuart
In a case that at least one defense counsel has termed “the most significant case
since Alvis v. Ribar” (the Illinois case which introduced comparative fault and
abolished plaintiff’s contributory negligence as a complete defense in negligence
cases), Justice Alan Greiman, of the First District Appellate Court, ruled that an
award of $25,000,000, for the loss of society a family experienced upon the death a
46 year old husband and father of two, “exceeds fair and reasonable compensation
and shocks the judicial conscience.” In Mikolajczyk v. Ford, the Appellate Court
reversed the award and judgment and remanded the case to the trial court for
remittitur (the reduction of the damage award by the trial judge). In guiding the
trial court, J. Greiman wrote, “we would find it difficult to deem reasonable a loss
of society award of more than seven (7) figures in this case and would certainly
find unreasonable an award of any more than one-half of the loss of society award
settled upon the jury...if the plaintiff does not consent to the reduced award...the
trial court shall order a new trial between the parties on the issue of loss of society
damages.”
Defense lawyers and claims personnel have for years bemoaned the steady escalation
in the value of wrongful death claims. (See Tables I & II) What used to be a case of
damages built on the somewhat boring and dull testimony of economists, presently
is a case based upon how well the plaintiff’s counsel can “package” the family and
evoke the jury’s emotions for the family’s loss of a loved one. While the jury is
generally instructed that its verdict must not be based upon speculation, prejudice,
or sympathy, and that in deciding for the plaintiff on the question of liability, it
must fix the amount of money which will reasonably and fairly compensate him,
it is still asked to measure the value of a loss for which there is no recognizable
market value. Pecuniary loss is not well defined in the jury instructions, but the
instructions include illustrations of pecuniary loss such as loss of money, benefits,
goods, services, society and sexual relations.
The jury in a Wrongful Death Act case may be instructed that in determining
pecuniary loss, the jury may not consider the grief or sorrow of the next of kin.
Nonetheless, “loss of society” is defined for the jury, as follows:
When I use the term “society” in these instructions, I mean the mutual
benefits that each family member receives from the other’s continued
existence, including love, affection, care, attention, companionship, comfort,
guidance, and protection.
While most of society would find it repugnant to place a dollar value on the loss
of a parent, spouse, or child, this is exactly what the law asks a jury to do in a
wrongful death case.
continued...
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w r o n g f u l d e a t h a w a r d s & t h e
j u d i c i a l c o n s c i e n c e
This point was not lost on Justice Greiman:
The testimony presented at trial showed that the…family was
very close...We agree that the evidence presented at trial
certainly revealed the close nature of the…family’s relationship
and demonstrated that the loss suffered by the family when
(decedent) died was enormous. The loss of a parent in any
family relationship is catastrophic. Gone is the guidance one
expects of a parent. Gone is the love and affection in such
relationships. Gone is the intimacy so ever-present in a close
family. Unfortunately, however, our system of justice does not
have a formula to determine the fair amount of loss of society.
Often the finder of fact relies more on the heart than the mind.
While we understand the jury’s sympathy, we must disagree
with the verdict…and find that the $25 million loss of society
award exceeds all fair and reasonable compensation and is so
large as to shock the judicial conscience. (emphasis added)
While the opinion does a good job of articulating the issue of what
is fair and reasonable compensation for loss of society, it does little
to really cure the problem. Ultimately, J. Greiman suggests that
the trial judge must be the gatekeeper, and encourages the use of
remittitur, which traditionally most trial judges have been loathe to
apply. Nonetheless, it is of little comfort to defendants that a ceiling
of $9-12.5 million has been hinted at in a case, which undoubtedly
was a solid loss of society case for the plaintiff. What about the
case where the relationships among the family members were less
than solid before the death? Defense counsel are understandably
reluctant to “beat up” on the widow and orphans. Conventional
wisdom suggests that such an approach may in fact aggravate or
inflate the verdict, as it invites anger from the jury. Are we entering
an era where the trial court may be more open to defense arguments
on limiting the recovery under the Wrongful Death Act?
Number of
Verdicts
2002 2003 2004 2005
27 19 24 18
High award $16,084,660 $14,230,000 $18,200,000 $27,000,000
Type of case
for high
award
Decedent for
high award
Malpractice
F-34, left
husband and
3 children
Not specified
M-45,
married,
father of two
Motor
vehicle
accident
M-28,
married,
father of
two
Product
liability
M-46,
married,
father of two
Low award $50,000 $40,000 $40,000 $75,000
Type of
case for low
award
Decedent for
low award
Median
average
Table 1
Wrongful Death Verdicts for Calendar Years 2002-2005*
Malpractice,
suicide
ATV
collision
Medical
malpractice
M-25 F-18, single F-fetus F-2
Medication
error
$1,212,000 $2,100,000 $2,400,000 $1,500,000
*Source: Cook County Jury Verdict Reporter
Historical justification for the Wrongful Death Act.
The idea of compensating a surviving spouse and next of kin for
the loss of a loved one is not new. The Illinois General Assembly
first enacted a wrongful death statute in 1853, creating a right of
action in the decedent’s personal representative to recover damages
sustained by the surviving spouse or next of kin resulting from the
decedent’s death. The Act provides for “fair and just compensation
with reference to the pecuniary injuries resulting from such
death.”
Despite the seemingly narrow scope of recovery allowed by the
WDA, our courts have interpreted “pecuniary injury” broadly
enough to include various intangible damages. Courts have
allowed recovery for the loss of instruction and moral, physical,
and intellectual training as pecuniary injuries, and have held that
“loss of society” encompasses the deprivation of companionship,
guidance, security, love, and affection between parent and child.
The beneficiaries in an Illinois wrongful death action are defined by
statute. The Wrongful Death Act provides for the amount recovered
in such an action to be for the exclusive benefit of the surviving
spouse and next of kin. A jury determining damages under the Act
is allowed to consider evidence of numerous factors, including the
decedent’s age, sex, health, past and future contribution of money,
benefits, and services, and the relationship between the beneficiary
and the decedent. In practical experience, however, although
the relationship between the beneficiary and decedent is expressly
noted as a factor which can be taken into consideration, it is often
difficult to get evidence of a negative or dysfunctional relationship
between a beneficiary and the decedent admitted over plaintiffs’
objections as to relevancy and unfair prejudice.
Even though the jury determines the amount of damages
awarded under the Act, the court distributes that award among
the beneficiaries based on the court’s own determination of the
proportional dependency of each individual beneficiary upon
the decedent. Therefore, in making this distribution, the court’s
determination of the qualitative and quantitative nature of the
relationship between a beneficiary and the decedent is made as a
matter of law.
Evolution of pecuniary damages under the Act.
Originally, the Act’s narrow purpose allowed parents to recover only
for the actual loss of their child’s income. It was first established
in 1857 that parents are entitled to a presumption that they have
incurred a pecuniary loss upon the death of a child, based on the
common law rule that a parent is entitled to the services and earnings
of an unemancipated minor child. This rule reflected the social
conditions of the nineteenth century, when children were valued
largely for their capacity to contribute to the family income.
continued...
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Illinois courts have recognized, however, that times have changed.
In 1984, our Supreme Court noted that modern family life no
longer supports a presumption that parents derive significant
financial benefits from their children. The court did conclude,
however, that parents are nonetheless entitled to a presumption
of pecuniary injury in the loss of a child’s society.
Ways to avoid or minimize damages under the Wrongful Death Act.
Cases arise where persons named as beneficiaries under the
Wrongful Death Act either had a negative relationship with
or were not close to the decedent. Situations involving abuse,
neglect, or estrangement between a potential beneficiary and
a decedent are, not uncommon. In these cases, public policy
should not allow such individuals to recover for the loss of a
relationship that society recognizes as having been non-existent
or even detrimental.
Although it may not be proper to challenge the named beneficiaries
under the Act, since the “beneficiaries” are defined by the statute
itself, it is possible to challenge the nature of the relationship
between a beneficiary and the decedent, thereby rebutting the
presumption of pecuniary injury and reducing or preventing an
award of damages to that beneficiary. As the distribution of
damages under the Act is left to the court’s discretion, summary
judgment motions can be used to remove from issue statutorilyeligible
beneficiaries for whom no genuine issue of material fact
exists when they are unfit to recover due to the quality of their
relationship with the decedent. Limiting distribution of recovery
under the Act to those surviving spouses and next of kin who
actually had a compensable relationship with the decedent
upholds the purpose of the Act without providing a windfall
for undeserving beneficiaries who only claim a relationship with
the decedent upon the decedent’s death. Before doing so, it is
important to understand which beneficiaries have a presumption
of pecuniary loss (i.e., lineal heirs, such as parent-child, and
husband-wife, who have the presumptions vs. collateral
heirs, such as brothers and sisters, who are not entitled to the
presumption).
The presumptions are important as they allow the plaintiff to
make a prima facie case, and generally avoid motions for summary
judgment and directed verdict on the issue of proof of damages.
However, the presumptions are rebuttable, meaning that they
can be challenged. When sufficient evidence is developed in
discovery to suggest that the presumption makes a mockery of
the statutory scheme, because it rewards a beneficiary who was
abusive to the decedent or allows a beneficiary who had been
abused by the decedent to recover, then a motion for summary
judgment may be worthwhile.
Examples
In cases where a parent is seeking damages under the Act for
the death of a child, the parent is entitled to a presumption
of pecuniary loss in the child’s society, but this presumption
may be rebutted with evidence that the parent and child were
estranged.
continued...
Spotlight
Inhak Lee, J.D.
By Linda Newman
Inhak Lee’s strong work ethic and commitment to providing quality
service to his clients has resulted in Inhak’s recent promotion to Partner at
SmithAmundsen. While he is known for his perseverence and attention to
detail, his congenial manner makes him a pleasure to work with, both for his
co-workers and his clients. He effectively uses his personality to disarm his
more belligerent opponents.
Inhak was born in Seoul, South Korea and came to the United States with
his parents and younger brother when he was ten years old. Inhak’s father
brought the family to Missouri, originally intending to stay only two years
while he attended the University of Missouri to obtain a Master’s degree in
Journalism. Upon obtaining that degree, his father decided to attend Seminary
School. As luck would have it, Inhak’s father was offered a Ministry in Iowa
City, Iowa, and the family settled there, where Inhak’s parents still reside.
Inhak attended high school in Iowa and found he quickly acclimated to Iowa
life. Inhak and his younger brother were the proverbial “preacher’s kids” in
their community, so Inhak was accustomed to having a spotlight on him from
an early age. Notably, Korean was Inhak’s first language, and he looks for
opportunities to speak it with family and friends. He has not forgotten his
roots, and makes several trips to Korea each year to see other relatives.
Inhak completed his undergraduate degree at the University of Chicago,
where he studied Political Science. During College, he also studied in England
for a year and considered a career with the State Department or in politics.
Nevertheless, the legal profession beckoned, in part because Inhak’s father
also had a legal background. To his credit, he readily admits that his father
has been a strong, positive influence in his life. Inhak returned to Iowa to
attend law school at the University of Iowa. Interestingly, he was a sports
writer while he attended law school, and has found that those communication
skills later translated well to the law.
He returned to Chicago with his law degree, interviewed at SmithAmundsen
knowing only that he wanted to be a litigator, and has steadily risen to his
current position. Inhak had no medical background when he joined the
professional liability team with Carmel Cosgrave. However, Inhak was a quick
study and has an impressive breadth and depth of knowledge in his field. He
recently second-chaired a multi-million dollar case involving the electrocution
of a young lineman, which settled during motions in limine.
It is not all hard work. Inhak takes every opportunity to have fun and
relax. The last good movie he saw was “Little Miss Sunshine.” He is also
the proud owner of an eight- year-old female Chihuahua named Happy, who
keeps him busy. Because Inhak is a doting “Dog Dad,” Happy spends many
long hours at the firm while Inhak prepares for trial. Inhak loves Chicago
and finds it culturally and ethnically diverse with many opportunities. He
knows where all the good Korean restaurants are located but also appreciates
a “good hamburger.” He is a sports car buff and also an avid sports fan,
particularly the Chicago White Sox, Detroit Pistons, and University of Iowa.
Go Hawkeyes!
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j u d i c i a l c o n s c i e n c e
This rebuttable presumption was explained in In re Estate of
Lande. In Lande, the father of the 23 year old decedent attempted
to establish his right to a portion of the proceeds from a wrongful
death settlement. The trial court made a determination after hearing
testimony from the decedent’s family members that the decedent’s
father was estranged and would receive nothing from the proceeds of
the wrongful death action. The father, who divorced the decedent’s
mother when the decedent was two years old, testified that he spoke
to the decedent on a regular basis, but other testimony demonstrated
that he never visited the decedent or knew where she lived or worked.
He did not pay any of the decedent’s college expenses, and he did not
receive any financial support from the decedent.
On appeal, the father claimed that the trial court erred in finding that
he was estranged from the decedent, and even if he was estranged, this
was insufficient to deny him a portion of the wrongful death settlement
proceeds. In affirming the Circuit Court’s order, the Appellate
Court found that the applicable standard was not abandonment,
but estrangement. Although the decedent’s father testified that he
attended her funeral and believed the decedent would have provided
financial support for him had she not died, this evidence was not
sufficient to overcome the other evidence of estrangement.
Other factors have also been considered by Illinois courts in
determining the quality of the relationship between a beneficiary
parent and their deceased child for purposes of the Act. In considering
a parent’s loss of society in the death of a child, whether the parent
was the custodial parent or would have played a significant role in the
life of the deceased is relevant to support or rebut the presumption of
lost society. Evidence as to whether siblings lived in the same house
may also be relevant.
In cases where an adult child is seeking damages for loss of society
based on a parent’s death, the same general rules are applicable. Adult
children are entitled to a presumption of a substantial pecuniary
injury in the loss of a deceased parent’s society. This presumption,
however, can also be rebutted by contrary evidence. Some Illinois
courts have even considered evidence relating to a parent’s drinking
habits to suggest a lack of closeness between the decedent and his
children.
In Adams v. Turner, the Second District upheld a trial court’s
award of $2000 each to two adult daughters who did not have a
close relationship with their decedent father. The court noted that
“there was no real dispute that the relationship between the decedent
and his daughters was far from close.” The daughters did not live
particularly close to the decedent, and never called their father or sent
him a card on his birthday. The daughters did not recognize their
father on Father’s Day, and they never spent the holidays with their
father, although they were invited to do so. Moreover, testimony
from one of the decedent’s friends revealed that the decedent was
Number of
Verdicts
High
award
Table 2
Companionship/Loss of Society Awards for Calendar Years 2002-2005
Type of
case for
high award
Decedent
for high
award
2002 2003 2004 2005
10 14 7 14
$15,000,000 $11,000,000 $19,000,000 $4,500,000
Not specified
M-36,
married with
5 children
Not specified
M-18,
parents, 2
siblings
Not
specified
M-2 wks.
old
Not specified
F-24, mother
of three
Low award $400,000 $100,000 $450,000 $100,000
Type of
case for
low award
Decedent
for low
award
Not specified
M-17,
parents
Not specified
Not
specified
Medical
malpractice
M-37,
mother and
brother
M-74 F-79
*Source: Cook County Jury Verdict Reporter
generally angry when he discussed his daughters.
In spite of this testimony, the court recognized that although
the decedent and his daughters had a troubled past colored by a
divorce which had resulted in their separation for many years, it
did appear that a reconciliation was in process. Although tensions
were still present, the court believed a real bond existed between
the decedent and his daughters and a complete denial of recovery
was inappropriate, as the daughters had suffered some compensable
loss of society when their father died.
In Simmons v. State of Illinois, the decedent’s adult children sought
damages under the Act after their father drowned in an open sewagefilled
cistern located on land owned by the State. The decedent’s
adult daughter testified that she and her family saw the decedent on
a daily basis, and the decedent’s adult son testified he saw his father
twice a week. The court acknowledged testimony that they were a
close family, and “missed the decedent’s instruction, moral training,
society, companionship, and love.”
In spite of this testimony supporting a positive and close
relationship between the decedent and his adult children, the court
also entertained testimony that the decedent drank heavily on a
daily basis, which the State argued suggested a lack of closeness
between the decedent and his family. Although the family’s expert
had testified the value of the decedent’s life was over $800,000, the
court awarded the beneficiaries only $40,000.
Recommendations and Conclusions.
As Tables I and II demonstrate, juries easily relate to loss of society
claims, and frequently respond generously to any evidence regarding
the character of the decedent and his/her relationships with family
members. When evidence is developed that suggests that one or
more of the relationships between the decedent and beneficiaries
was strained or affected by certain factors, consideration should
be given to challenging the beneficiaries’ right to recover under the
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Act as a matter of law. Certainly in situations where the legal, and
arguably the emotional relationship was broken, the defense stands
a relatively good chance of successfully barring one or more of the
beneficiaries from recovery.
Where there is evidence of alcholism, estrangement, severe
psychological disorders or other traditional family stressors,
challenging the beneficiaries’ ability to recover for loss of society
should be considered.
The use of a motion for summary judgment before trial has several
advantages:
• In some wrongful death cases, the only pecuniary loss is for
loss of society. By eliminating one or more beneficiaries from
the jury’s consideration, the value of the case has been
diminished.
• After having read the motion, the court may be more
favorably disposed to allowing the evidence of the strained
relationship into evidence.
• Even if the motion is lost, plaintiff’s counsel must consider
what effect such evidence may have on the jury.
Additionally, defense counsel may want to challenge the policy
considerations in allowing a jury to compensate beneficiaries for loss of
love, affection, comfort, and/or protection. When the Wrongful Death
Act was first enacted, familial relationships were very much based on
economics. Women married for protection and economic security;
men married for the services women provided; children were born to
help on the farm. These reasons bear only little resemblance to most
modern day relationships. While the courts in cases such as Bullard
v. Barnes, recognized how modern society has changed the nature of
familial relationships, by so recognizing the changed nature, the law
has moved away from basing wrongful death awards on objective
economic data to subjective intangible concepts. By allowing the jury
to compensate for the loss of love, affection, care, companionship, etc.,
each juror is required to quantify for him- or herself how much being
loved, cared for, or protected is worth.
While the Mikolajczyk case is a step in the right direction, it is, at
best, a small step. To the extent that the decision signals a judicial
concern about the size of awards in wrongful death cases, now may be
the time to start challenging the rationale and policy basis of allowing
compensation for loss of society.
However, the significance of the decision to medical malpractice cases
may ultimately be limited by the legislation, which went into effect in
August, 2005. This legislation will undoubtedly serve to reduce liability
for loss of society awards, because they are non-economic damages.
Specifically, the legislation puts the following caps into place, which
would likely be applied to loss of society claims:
NON-ECONOMIC DAMAGE CAPS:
• $1,000,000 cap for hospitals. The cap applies to “a hospital
and its personnel or hospital affiliates” and is applicable
to “all plaintiffs in any civil action.”
• $500,000 cap for physicians. The damage cap applies to “an
award against a physician, and the physician’s business
or corporate entity and personnel or healthcare personnel.”
• The cap appears to apply per defendant so that if an award is
entered against a hospital and a physician or three (3) separate
physicians, the non-economic damages would be capped at
$1.5 million.
Look for plaintiffs’ counsel to revert back to the use of economists to
build their economic damages in some wrongful death cases. Indeed,
certain aspects of loss of society are arguably suspectible to an economic
evaluation. “Care, attention, companionship, guidance, and protection”
can be provided to anyone for a price. Look for clever plaintiff’s counsel
to include an economic cost of providing for these services particularly
in cases involving the death of parents leaving minor beneficiaries, the
death of older individuals leaving elder spouses, or the death of an adult
single child leaving elderly parents. Like it or not, it looks like it’s time
to bring back the economists!
REFERENCES
Alvis v. Ribar 85 Ill. 2d 1; 421 N.E.2d 886; (1981)
Mikolajczyk v. Ford Motor Company, et al, 2006 Ill. App. LEXIS 1057
(2006)
Goddard v. Enzler, 222 Ill. 462 (1905)
Gabriel v. Illinois Farmers Ins. Co., 171 Ill. App. 3d 663 (1st Dist.
1988)
Bullard v. Barnes, 102 Ill. 2d 505 (1984)
In re Lande, 209 Ill. App. 3d 55 (4th Dist. 1991)
Johnson v. Provena St. Therese Medical Center, 334 Ill. App. 3d 581
(2d Dist. 2002)
Adams v. Turner, 198 Ill. App. 3d 353 (5th Dist. 1990)
Cooper v. Chicago Transit Authority, 153 Ill. App. 3d 511 (1st Dist.
1987)
Simmons v. State of Illinois, 50 Ill. Ct. Cl. 269 (Ill. Ct. Cl. 1995).
Recognitions - Health Care Super Lawyers
Carmel Cosgrave and Rita Gitchell were two of the ten attorneys at SmithAmundsen who were once again named
Super Lawyers, by their peers, as published by Law & Politics magazine. This is Carmel’s third year on the list and
Rita’s second. Super Lawyers are identified during a multi-step evaluation process incorporating peer recognition and
professional achievement. Factors considered during the evaluation include: verdicts and settlements, experience, honors
and certifications, professional activity, pro bono and community service, and scholarly lectures and writing. Rita will also
be recognized as a distinguished alumni at St. Francis High School’s Heritage Ball on February 24, 2007.
5

Update
o n c o n s e n t
Update on Consent Issues;
Does Schroeder change anything?
By George Kages
In the last edition of the Health Care Quarterly, we featured an article on
the current state of the law regarding consent and a hospital’s vicarious
liability for independent doctors. Later that month, on December 12,
2006, the First District Appellate Court delivered an opinion in the case
of Schroeder v. Northwest Community Hospital, which, at first blush,
appears to upset all past precedent regarding consent.
Before Schroeder, Illinois case law had come to rely on the principle that
“if a patient knows, or should have known, that the treating physician is an
independent contractor, then the hospital will not be liable.” This was the
principle seen in the case of Gilbert v. Sycamore Municipal Hospital, and
revisited again last year in York v. Rush Presbyterian-St. Luke’s Medical
Center (see the Winter 2006 Health Care Quarterly). The main instrument
in presenting this knowledge to a patient was seen as the hospital’s consent
form.
However, in Schroeder, the Court ruled that a hospital’s consent form, used
to communicate the independent-employment status of various doctors
mattered little, if at all, if a patient simply claimed to be “confused.”
Mr. Schroeder was treated for rheumatoid arthritis during three separate
admissions at the defendant hospital. During the first two admissions,
the patient, and on the third admission, his wife, signed consent forms
which explained that the physicians were not agents of the hospital.
During the third admission, Mr. Schroeder was administered a drug which
was contraindicated for a patient with his additional comorbidities. This
unfortunately led to Mr. Schroeder’s death.
Mr. Schroeder’s estate filed the medical malpractice lawsuit against the
doctors and the hospital. The hospital brought a motion for summary
judgment, based upon the signed consent forms, relying on the principles
seen in Gilbert and its progeny, and that motion was granted by the trial
court. The plaintiffs subsequently appealed, leading the First District
Appellate Court to render its decision reversing the trial court’s decision,
and further remanding this case for trial.
In focusing its opinion on the consent form, the Appellate Court stated
that,“we believe the issue is not whether plaintiff was confused or led
to believe by any actions on the part of Northwest that the physicians
were its agents or employees but whether the decedent was confused or
misled by the disclosure forms and whether he perceived or believed the
physicians were the agents or employees of Northwest.” The Court went
on, stating that, “if, however, there is evidence that decedent reasonably
believed his personal care physician and the consulting physicians were
agents or employees of the hospital, a triable issue of fact exists and should
be presented to a jury.”
This decision is being appealed. Nonetheless, this case does illustrate
that a defendant hospital cannot be guaranteed a successful summary
judgment motion based on what appears to be a well-drafted consent
form (for a consent form check list, please see the Winter 2006 Health
Care Quarterly). It now appears that no effort should be spared to
ensure that a patient truly understands the information which is
presented on the consent form. Every effort should be made to leave
no question unanswered, and no room for a patient to claim that he
was “confused” by the language on the consent form.
REFERENCES:
Schroeder v. N.W. Cmty. Hosp., 2006 Ill. App. LEXIS 1142 (2006)
Gilbert v. Sycamore Muni. Hosp., 156 Ill. 2d 511 (1993)
York v. Rush-Presbyterian St. Luke’s Med. Ctr., 222 Ill. 2d 147
(2006)
Publications &
Presentations
Carmel Cosgrave and Cindy Besecker recently addressed
mental health providers regarding legal issues in mental
health. In December 2006, Carmel spoke at an Evanston
Northwestern Healthcare symposium about mental health
treatment, consent, and advance directives. In January
2007, Cindy spoke to physicians and nurses at Glenbrook
Hospital about the Mental Health Treatment Preference
Declaration Act and Medical Record Documentation. In
addition, Cindy, a member of the Academy of Certified
Social Workers, published three articles about medical
malpractice litigation in the Illinois Social Work Newsletter
in 2006. Cindy also participated in a panel discussion titled,
“Revisiting Mental Health,” during the 2006 NASW Illinois
State Symposium.
Liz Wakeman recently spoke to doctors and nurses at Advocate
Good Shepherd Hospital regarding how to respond to attorney
inquiries, including appropriate responses to requests for
interviews and records; subpoenas for depositions, trials, and
arbitrations; and pleadings. Linda Newman continues to enhance
her expertise in corporate compliance and recently participated
in the Corporate Compliance and Ethics Seminar in Chicago
sponsored by the Society for Corporate Compliance. Also during
2006, Rita Gitchell, on behalf of The Dentist Insurance Company
and sponsored by the Illinois State Dental Society on Charting
the Course, spoke to dentists as part of their continuing dental
education. She explored, from a legal perspective for dentists,
how record keeping and new technology impacts dental cases.
Carmel Cosgrave was also part of a panel at the Chicago Bar
Association in September 2006, discussing trial preparation. 6

From the
Courts
i n h e a l t h c a r e L A W
Dentists Cannot be Found in Violation
of the Illinois Consumer Fraud and
Deception Business Practices Act - At
Least For Now
The Illinois Appellate Court has recently affirmed the fact that dentists
cannot be sued under the Illinois Consumer Fraud and Deceptive
Business Practices Act (“the Act”), but a concurring opinion by Justice
Greiman calls into question whether the law should remain this way.
In Tkacz v. Weiner, the plaintiff filed a two count complaint against
her dentist alleging that the dentist was professionally negligent
(Count I) and that he violated the Act (Count II). Specifically, Count
II claimed that the dentist knowingly and deliberately engaged in a
pattern and practice of falsely informing patients of their dental needs
in order to improperly increase charges and billing patients for work
never performed. The court granted the dentist’s motion to dismiss
Count II of plaintiff’s complaint, arguing that the Act did not apply to
plaintiff’s allegations of professional negligence because dental services
do not fall within the meaning of “trade or commerce” as defined by
the Act.
In her appeal, the plaintiff argued that the term “trade or commerce”
is broad enough to include the business aspects of dentistry. In order
to establish a claim under the Act, a plaintiff must prove:
1) A deceptive act or practice by the defendant;
2) The defendant’s intent that plaintiff rely on the act or
practice; and
3) The occurrence of the deception in the course of conduct
involving trade or commerce.
At issue in this case is the third requirement. The Act defines “trade and
commerce” as “the advertising, offering for sale, sale, or distribution
of any services and any property, tangible or intangible, real, personal
or mixed, and any other article, commodity, or thing of value wherever
situated, and shall include any trade or commerce directly or indirectly
affecting the people of this State.”
In making its decision, the Illinois Appellate Court relied heavily on
a history of case law which has interpreted the “trade or commerce”
definition as excluding medical, dental, and legal services. In addition,
the court found that the plaintiff’s allegations related to the “actual
practice” of dentistry and not the “business aspects” of dentistry.
Accordingly, the court held that plaintiff’s allegations in Count II were
a mere reiteration of her allegations for professional negligence under
Count I, and therefore dismissal of Count II was appropriate.
Interestingly, Justice Greiman chose to author a concurring opinion, in
which he expresses his dissatisfaction with the law as it stands on this
issue. He asserts that doctors and dentists are no different than other
business people since they are a part of the stream of commerce and
are engaged in the sale of services. He also points out the fact that
the Act does no specifically provide for an exception for doctors and
dentists.
REFERENCES:
Tkacz v. Weiner, 2006 Ill. App. LEXIS 997 (1st Dist. 2006)
44
$1.12
million
$1.58
million
11
5
$19,134
$150,000
At a Glance
Settlements & Verdicts in
Nursing Home Litigation in
Cook County, Chicago, Illinois
Average number of months a nursing
home case remains pending in Cook
County from 2004 through 2006.*
Average amount of reported
settlements in nursing home cases
in Cook County.
Average amount of reported
verdicts in nursing home cases
in Cook County.
SmithAmundsen
Statistics in Nursing
Home Litigation
Average number of months SmithAmundsen
took to get a nursing home case resolved in
Cook County in 2006.
Number of voluntary dismissals of nursing
home cases obtained by SmithAmundsen
from 2004 through 2006.
Average amount of fees SmithAmundsen
charged to resolve a nursing home case
in Cook County in 2006.
Average amount of settlement
SmithAmundsen negotiated in nursing
home cases from 2004 through 2006.
* Based on the reported verdicts and settlements of nursing
home cases in Cook County from 2004 through 2006. 7

From the
Courts
i n h e a l t h c a r e L A W
Plaintiffs Must Provide a Factual
Basis, Rather Than Mere Speculation,
that a Physician’s Treatment Caused
Their Injuries to Survive Summary
Judgement
In Hussung v. Patel, the Illinois Appellate Court remained firmly
against plaintiffs who try to prove their medical negligence claim
by asserting that a mere temporal relationship between a physician’s
treatment and the plaintiff’s injury is enough for a jury to conclude that
the physician was at fault. In Hussung, the physician administered an
epidural steroid injection into plaintiff’s back in order to treat her
lumbar pain. Immediately afterwards, plaintiff began experiencing
neurological defects, such as numbing, tingling, and the inability
to walk, which continued over the next several days. Plaintiff filed
her complaint against the physician after she was diagnosed with
meningoencephalitis and continued to suffer the same symptoms.
During depositions, plaintiff’s subsequent treating physicians testified
that they would be speculating to say that plaintiff’s symptoms began as
a result of the defendant physician’s treatment of plaintiff. Specifically,
one of plaintiff’s subsequent treaters explained that there were several
possible explanations for plaintiff’s condition, and after listing the
possibilities, admitted, “Frankly, I can’t tell you which of those is true,
and I don’t think anybody else can.” Accordingly, defendant’s motion
for summary judgment was granted with the trial court holding that,
“no testimony provides any foundational support to establish that
any act or omission of [the physician] was the proximate cause of the
plaintiff’s injuries.” Plaintiff appealed.
In reviewing the trial court’s decision, the Illinois Appellate Court
noted that to survive a motion for summary judgment, the nonmoving
party must present a factual basis that would arguably entitle her to
a judgment in her favor. Even though issues of proximate cause are
generally questions of fact for the jury to decide, the plaintiff must
present “affirmative evidence” that the defendant’s negligence was
arguably a proximate cause of the plaintiff’s injuries. Importantly, the
existence of proximate cause cannot be based on “mere speculation,
guess, or conjecture.” In this case, none of the plaintiff’s experts
could point to any affirmative evidence linking the steroid injection
to plaintiff’s injuries. It was not enough for plaintiff to argue that the
timing between the injection and the plaintiff’s injury is so close to
establish a causal relationship. When there is no factual support for
the expert’s conclusions, other than mere speculation, the conclusions
alone do not create a question of fact, and summary judgment in the
physician’s favor is appropriate.
REFERENCES:
Hussung v. Patel, 2007 Ill. App. LEXIS 19 (2nd Dist. 2007)
Physician-Patient Privilege Protects
Disclosure on Nonparty Patients
Who Underwent Same Procedure as
Plaintiff
An Illinois Appellate Court has recently ruled that a plaintiff is
not entitled to the names and addresses of nonparty patients of the
defendant doctor who underwent the same procedure as the plaintiff.
In Defilippis v. Gardner, the defendant doctor revealed during his
deposition that the Burch procedure (for the treatment of urinary
incontinence) he had performed on the plaintiff was a procedure
he previously performed on approximately twenty other patients.
Following the plaintiff’s unanswered discovery request, the trial court
ordered the defendants to produce the names and addresses of these
twenty nonparty patients. The defendants refused to comply with the
order asserting that this information is protected by the physicianpatient
privilege.
In determining its ruling, the trial court relied heavily on the rationale
set forth in House v. Swedish American Hospital. In House, the
plaintiff filed her negligence action after she was attacked by another
patient in the hospital’s lounge. During discovery, she sought
production of the attacker’s medical records. The House court held
that, while the plaintiff was not entitled to attacker’s medical records,
the plaintiff was entitled to the attacker’s identity so that the plaintiff
could contact and depose the attacker. The House court further
determined that revealing the patient’s identity, in and of itself, does
not result in disclosure of confidential communications.
The Illinois Appellate Court disagreed with the trial court’s application
of House to the instant case and reversed. The physician-patient
privilege, codified in the Illinois Code of Civil Procedure, provides
that, “[n]o physician or surgeon shall be permitted to disclose any
information he or she may have acquired in attending any patient in a
professional character, necessary to enable him or her professionally
to serve the patient.” In House, disclosing the identity of the attacker
did not result in revealing anything about the attacker’s medical
conditions. However, in the instant case, by releasing the names of
the twenty patients who also underwent a Burch procedure performed
by the defendant doctor, one could make the obvious inference that
the named patients suffered from urinary incontinence. Because
disclosing the names of these nonparty patients would also disclose
the medical treatment these patients received, the court in Defilippis
held that disclosure was in “clear contravention” of the physicianpatient
privilege.
REFERENCES:
Defilippis v. Gardner, 2006 Ill. App. LEXIS 1068 (2nd Dist. 2006)
House v. Swedish Am. Hosp., 206 Ill. App. 3d 437 (2nd Dist. 1990)
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From the
Courts
i n h e a l t h c a r e L A W
Verdict in Favor of Hospital &
Physicians Reversed Because
Attorneys Did Not Have Legitimate
Race-Neutral Reasons for Dismissing
African-American Jurors
The First District, in Mack v. Anderson, made it clear to three
attorneys, representing a hospital and two physicians, that they
cannot violate the equal protection clause of the 14th Amendment by
having African-American’s stricken from the jury without a justified
race-neutral reason. In Mack, Eloise Warren was admitted to the
hospital to have a laparoscopic Nissen fundoplication performed
to help alleviate her acid reflux condition. After experiencing
swelling in her neck and tightness in her chest, a laparotomy was
performed to correct the initial procedure. Following an x-ray
which revealed extensive subcutaneous emphysema and another
operation in attempt to relieve the problems, Ms. Warren suffered a
cardiac arrest and died. The administrators of her estate filed their
lawsuit against the two physicians performing the procedures and
the hospital.
At trial, the plaintiff and each of the three defendants were given five
peremptory challenges, which allow them to strike a potential juror
from becoming a member of the jury. After a verdict in favor of
the defendants, the plaintiff appealed, arguing that the defendants
should not have been allowed to use three of their peremptory
challenges to exclude African-Americans from the jury.
Whenever a party makes an allegation such as the plaintiff in this
case, a separate hearing takes place according to the procedure
set forth in Batson v. Kentucky. Under Batson, the party being
challenged is required to provide the court with a race-neutral reason
for striking each of the African-American jurors. The court must
then review the explanations and determine whether a potential
juror was excluded solely on the basis of his or her race.
In the instant case, the defendants provided several reasons for
choosing to strike the African-American jurors. As to all three
potential jurors, the defendants stated that they were seen nodding
their heads when plaintiff’s counsel asked them if they would be
willing to award damages. The court held that this was not a valid
race-neutral reason because, while non-verbal communication can
be a legitimate ground for dismissing a juror, in this case both black
and white jurors nodded their heads to that question, and none of
the white jurors were dismissed. The defendants also argued that
one of the potential jurors was excluded because she appeared to
be disinterested in the proceedings. However, the court determined
that, while this could be a legitimate reason to dismiss a juror,
in this case the defendants did not clearly explain what the juror
did to make them perceive her as being disinterested. Finally, the
defendants stated that they dismissed one of the jurors because she
had previously been involved in a worker’s compensation claim
and they perceived her to be a “litigious person.” Because the
defendants presented no evidence that this juror took pride in her
workers compensation claim, this was also considered by the court
not to be a legitimate race-neutral reason. Since it was determined
that the defendants could not provide race-neutral reasons for
striking each of the three jurors, the court held that these jurors
were denied equal protection under the 14th Amendment, and the
verdict in favor of the Hospital and two physicians was reversed.
REFERENCES:
Mack v. Anderson, 2006 Ill. App. LEXIS 1226 (1st Dist. 2006)
Batson v. Kentucky, 476 U.S. 79 (1986)
Legislative Update
e f f e c t s o f 2 0 0 5
t o r t r e f o r m
Healthcare professionals are aware that on August 25, 2005
Governor Blagojevich signed into law the Illinois 2005 Medical
Malpractice Bill. The bill most notably provided caps on noneconomic
damages (“pain and suffering”) of $1 million for
hospital defendants and $500,000 for physician defendants. It
also provided expansion of the Section 2-622 “certificate of merit”
that must accompany a newly filed action. A 2-622 reviewer must
now meet expert witness standards (trained in the same profession
and hold same class of license as individual defendants). There are
also “Patient’s Right to Know” provisions regarding patient access
to IDFPR records for physicians, among other reforms. It also
changes underwriting practices to publish rate data from industry
peers. The intention of the bill was to help stem the rising cost of
malpractice insurance for physicians and health care providers.
Has it worked? Governor Blagojevich certainly thinks so. In
an article dated October 14, 2006, the Telegraph newspaper
(“Serving the Illinois River Bend Area since 1836”) reported on
the Governor’s appearance in Alton at St. Anthony’s Hospital. The
Governor signed the Tort Reform bill into law at St. Anthony’s the
year before. He used the occasion in October to announce that
Medical Protective (Medpro) a Berkshire Hathaway company based
in Fort Wayne, Indiana, is reducing rates for medical malpractice a
whopping 39 percent in the Metro East and Chicago areas.
continued...
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The Tort Reform Act and a concurrent administrative order
issued by the Illinois Division of Insurance regulators in March
2006 required ISMIE Mutual Insurance to publicly file rate
related information. Medpro is using that information to set its
own rates. The article quotes Medpro vice president Mark Wittel
to the effect that the ISMIE information allows Medpro to set
competitive premium rates.
The Governor is not the only one impressed with the early effects
of the tort reform legislation. ISMIE Mutual Chairman Harold
L. Jensen, M.D. announced on January 15, 2007 that, due to the
improving medical liability climate in the state, it will begin an
annual dividend plan to distribute to policyholders “the costsavings
reaped to date from recent medical litigation reforms.”
ISMIE is also lifting its moratorium on new policyholders, in
place since January 2003, and will accept 400 new policyholders
in April of this year. “We see very positive signs that things are
improving here, that the litigation reforms are really beginning to
work,” said Dr. Jensen. For the 2005-2006 the number of clams
reported to ISMIE dropped over 25 percent.
An interesting analysis of the medical malpractice insurance
market appears in the Plus Journal dated January 2007. Drs.
Yu Lei and Joan Schmidt in “Entry and Exit in the Malpractice
Insurance Market from 1994 to 2003-Part II” note the relative
size, compared to other insurers, of medical malpractice insurers.
Medical malpractice insurers account for approximately 20% of
all insurers, relative to the total number of property and liability
insurers. They also find the medical malpractice market to have
much higher volatility than the professional liability market
overall. Despite that, funds in the market stay about the same
even though there is rapid entry and exit of insurers from the
market. They find that insurers seem to have a continued interest
in providing capital to that market. Drs. Lei and Schmidt quote
Paul McKeon, senior vice president of Transatlantic Reinsurance:
“There are no barriers to the reinsurance side. A lot of reinsurers
are very bullish on this business…There’s so much competition
that flows into this business so quickly that it doesn’t justify a
long-term approach. The market doesn’t seem to allow that.”
Insurance business aside, the first plaintiff’s lawsuit to challenge
the tort reform legislation was filed on November 20, 2006. On
that day the Law Offices of Jeffrey M. Goldberg filed suit in the
Circuit Court of Cook County on behalf of Abigaile LeBron.
The Complaint alleges that Gottlieb Memorial Hospital did not
respond properly when Abigaile’s mother experienced difficulties
during labor, causing Abigaile to suffer birth-related injuries.
Count V of the complaint is entitled “Declaration of
Unconstitutionality.” It asserts that Abigaile has suffered noneconomic
damages greatly exceeding the applicable limitations on
non-economic damages as encoded in the recent legislation and
that this legislation is in violation of the Illinois Constitution. The
violation, according to Mr. Goldberg, provides limited liability
to a “select group of health care provider defendants,” as well
as violating the Plaintiff’s right to trial by jury, due process, and
equal protection, among other rights provided to the plaintiff by the
Illinois Constitution.
Illinois has gone through other tort reform cycles. In 1995, Public Act
89-7 provided tort reform in Illinois. In a decision dated December 18,
1997, in Best v Taylor Machine Works, the Illinois Supreme Court struck
it down. The case arose from two personal injury tort actions filed in the
Circuit Court of Madison County. The court found that (1) limitations
on compensatory damages for non-economic injury, (2) section 3.5 of
the Joint Tortfeasor Contribution Act, (3) the abolition of joint and
several liability, and (4) the discovery statutes mandating unlimited
disclosure of plaintiffs’ medical information records, all violated the
Illinois Constitution. Finding it could not sever these unconstitutional
provisions from the remainder of the act, the court struck down the
act as a whole. SmithAmundsen’s own Michael Resis was one of the
Amicus Curiae authors in the Best case.
Our Workers’ Compensation
Practice Group
With over 80 years of trial experience at the Workers’ Compensation
Commission, our workers’ compensation group is well acquainted
with the issues hospitals and other health care organizations face as
employers. Partner Anita Sense-Johnson was a leader in the field of
latex anaphylaxis exposure litigation, successfully defending against
claims of employees across the board, from housekeeping through
medical and technological staff.
Gail Galante pursued a successful career in hospital human resources/
employee relations while attending law school. She has handled many
successful appeals through the Appellate Court from decisions against
the Respondent by the Illinois Workers’ Compensation Commission.
Two recent cases Gail successfully pursued involve the issues of whether
an unwitnessed lifting accident actually took place, and allegations
of vexatious conduct by a third party administrator in the delay of
paying an award. The Appellate Court in the first case reversed a
finding for Petitioner on compensability at all other levels and found
it was against the manifest weight of the evidence to find that the
accident occurred. In the second case, the Appellate Court reversed
the finding of penalties and reinstated the Commission’s decision in
favor of the Respondent denying the penalties and finding that the
conduct was not vexatious.
The latest crises in workers’ compensation involve issues of causation
coupled with repetitive trauma, and Illinois’ minority status among
other states, in not requiring a specific injury. This can result in
employees claiming injuries, which “float” around the body, giving
rise to a myriad of diagnoses, surgeries, extended therapy and
injections. To minimize the impact of these claims, employers should
first pinpoint the correct or most precise diagnosis and then analyze
the physical job requirements and their relationship or lack thereof in
affecting that condition. Too many times the cart is placed before the
horse in questioning whether the job is “repetitive” without reference
to the specific diagnoses involved.
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SmithAmundsen Health Care Team Members
Carmel Cosgrave
Chair, SA Health Care Team
Attorneys Nurse Medical Analysts Legal Assistants
Cynthia Besecker Linda Newman Betsy Ballek Sharon Blaszak
Donna Fernandez Patrick Lubenow Maryellen Jachimowski Dee Morales
Rita Gitchell Ruth Robinson Kelly Wolf
George Kages Jennifer Stuart Paralegal
Inhak Lee Elizabeth Wakeman William Dury
About
SmithAmundsen
SmithAmundsen LLC offers experienced, efficient
and proactive counsel on a wide range of legal and
business issues. Our goal is to become our clients’
primary source for legal services and business
advice, the lawyers you turn to when you need to
“get it done right.” In addition to litigation, we also
practice non-traditional means of resolving cases.
We understand the importance of “bottom line”
analysis in our legal advice to clients.
SmithAmundsen combines litigation expertise
with a practical business approach to offer
client-centered services in an efficient manner.
Trial work is our litigators’ craft. Our trial
experience and courtroom knowledge has built
a loyal clientele, leading many clients to request
our services on a regional and national basis
in all aspects of legal representation. SA is
experienced in the matters most vital to business
and is committed to providing ongoing counsel
to support and protect the growth of our clients’
organizations.
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This newsletter is intended to provide information of general interest in a summary manner and should not be construed as providing
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