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New Developments - Law Firm News

Ed Walsh Addresses Illinois Trial Lawyers at the 2009 Annual Update and Review Seminar

The Illinois Trial Lawyers Association presents an annual October seminar in Chicago to provide its members with an update and review of major developments in Illinois trial practice. This year the Association invited Ed Walsh to share his expertise and experience on the specialized practice area of medical malpractice.

Ed provided those trial lawyers in attendance with an update of the significant medical malpractice appellate court decisions issued in 2009. Most importantly, he also provided his fellow ITLA members with guidance and recommendations on the benefits and advantages of including doctors and hospitals as "respondents in discovery" in medical malpractice lawsuits.

Ed and his partners at Walsh, Knippen & Cetina, Chartered take great pride in sharing their expertise and experience with their professional colleagues. Ed's written paper entitled "Expediting Discovery & Accelerating Your Case: Divide and Conquer the Defendants With Section 2-402" is provided here for your review.

Preservation of the Constitutional Right to Trial by Jury

The Illinois Supreme Court recently issued its opinion in Lebron vs. Gottlieb Memorial Hospital and declared unconstitutional the 2005 “tort reform” legislation that attempted to diminish and take away the rights of people injured or killed as the result of medical negligence.

The Trial Lawyers at Walsh, Knippen & Cetina, Chartered extend their sincere gratitude and thanks, personally and on behalf of their clients, to the Illinois Trial Lawyers Association and those members of the Constitutional Challenge Committee who fought to promote the safe practice of medicine and preserve the rights of those people injured or killed as the result of medical negligence.

Filing Medical Malpractice Lawsuits

What To Do Regarding Illinois Code of Civil Procedure Section 2-622

Two questions which come up frequently these days are: (1) Should the Section 2-622 report for a medical malpractice case against a nurse be by a nurse or a doctor? (2) Does the health care provider report filed with the complaint have to identify the health care provider?

Nurse or Doctor for a Nurse Case?

Some attorneys have found themselves confused or uncertain about what kind of a health care consultant should be retained to provide the physician report (sometimes called a certificate of merit) required in order to file a medical malpractice case, especially when a nurse is the negligent actor or a hospital is to be a defendant. A question comes up at least once every month or so on the ITLA internet list serve, and when it does, some of the answers demonstrate that that the problem exists for more than a few attorneys.

The confusion and uncertainty usually stems from the fact that 735 ILCS 2-622, governing the physician report requirement, was significantly amended, effective August 25, 2005, with respect to what kind of health care provider must make the report. Because of that change in the law, it is now necessary to take into account when the cause of action accrued in order to know which rule to apply. To make matters even more complicated, the new law was held unconstitutional at the trial level in Cook County on November 13, 2007, and is still on appeal before the Illinois Supreme Court. Lebron v. Gottlieb Memorial Hospital, Supreme Court Docket No. 105741.

Our firm, on an extremely selective meritorious basis, files many medical negligence complaints each year. Therefore, compliance with Section 2-622 is critical. Our suggestion is this: if the cause of action accrued before August 25, 2005, the situation is simple. The report must be by a qualified doctor regardless of whether the defendant is a doctor, nurse, or hospital. And there must be a separate report for each defendant; although if a hospital is being sued only on a theory of vicarious liability, no additional report for the hospital is needed. Schroeder v. Northwest Community Hosp., 371 Ill.App.3d 584, 862 N.E.2d 1011 (1 Dist.,2006).

If, as is becoming much more often the case, the cause of action accrued on or after August 25, 2005, and the defendant is a nurse, the new law is that a qualified nurse must provide the report. If the defendant is a hospital, the report must be by a doctor, as it was under the old law.

However, because the new law has been held unconstitutional and is on appeal, in a nurse case accruing on or after August 25, 2005 we think that the best course, during this Limbo period, is to submit two reports, one from a doctor and one from a nurse. If you use only a doctors report and the Supreme Court decides that the new section 2-622 is constitutional, there is a significant possibility that the complaint will be dismissed. On the other hand, if you use only a nurses report and the Court affirms the decision of the trial court that the new law is unconstitutional, there is good chance the complaint will be dismissed. In either event, the dismissal would be without prejudice, but would nonetheless constitute a significant disruption and expense in the development of the case.

While no one likes to spend money unnecessarily, the fact is that in most cases against a nurse, both a doctor and a nurse expert will ultimately be necessary anyway. Typically a doctor will be needed at trial in order to prove that the nurses negligent conduct was proximate cause of the injury or death, and under 735 ILCS 5/8-2501(c), a nurse will be necessary to testify at trial concerning the standard of care for nurses. So getting both reports at the outset will usually not be a significant extra expense, and it solves the problem.

Must the Report Identify the Health Care Provider?

The issue of whether to identify the 2-622 consultant in the physician report is closely related to the issue of whether to use a nurse or a doctor for a health care provider report where a defendant is a nurse. The new law clearly requires that the identity, the address and the license number of the consultant be included in the report. Under the old law, the consultant could be anonymous.

From a strategic standpoint, many plaintiffs attorneys seem to prefer keeping their consultants anonymous until the expert witness discovery phase of the case. However, the strategic pros and cons of that approach are definitely debatable anyway, and unless and until the Illinois Supreme Court affirms the unconstitutionality of the new law, the trial courts may well dismiss complaints that do not comply with the identity requirements. Some Cook County judges, however, are allowing plaintiffs attorneys to file the 2-622 report with the health care providers identity under seal pending the Illinois Supreme Courts ruling in the Lebron case. We are simply identifying our 2-622 consultants, at least for now. Frankly, we think that an on-point, somewhat specific report from a health care provider who is especially well-credentialed, may increase the likelihood that those making the decision whether to defend or settle the case will put it in a settlement posture.

*We plan to do this In a Nutshell series from time-to-time to share our ideas on issues that we think may be of interest to many of us. We know everyone has a lot to read, so we will try to make these short and to a specific point. Like this one, the Nutshell series are not meant to be comprehensive articles, but we will be happy to entertain your related questions or alternative ideas. Just email or call us.

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Wheaton, IL 60187 | 630-462-1980
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Chicago, IL 60601 | 312-372-1980
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