In a Medical Malpractice lawsuit it is incumbent upon the plaintiff to prove that the physician deviated from the necessary standard of care. However, that standard of care can be different depending on where the physician works. In many states, including Illinois, the “locality rule” reigns supreme. Originally designed to protect the physician working in rural areas, the locality rule compares a defendant physician’s conduct against the recognized practices and customs of that locality or similar localities. At the time, he impetus for the locality rule was the fact that a rural physician had less education and less access to proper equipment, etc. It was seen as unfair to compare their conduct to a physician practicing in urban areas.

In Illinois, experts are required to testify as to the standard of care that should have been applied in that particular case. In past Illinois decisions, courts held that the testifying expert had to be a physician who was aware of that locality’s specific standards. However, reflecting advancements in technology, communication, and transportation, Illinois, as well as many other states, has modified the applicability of the locality rule. Although the locality rule is still prevalent in Illinois, especially in situations where there is inequality between medical facilities, the testifying expert often does not need to be aware of that locality’s particular standards. Today in Illinois, an expert may testify as to national standards that form the baseline minimum standards related to certain diagnosis, treatments, and procedures. However, with the advancements in technology and education it must be noted that in many situations the minimum national standards will be aligned with the locality’s standards.

Although in some situations it is still seen as unfair to judge a rural physician by the standards of an urban physician, many states have rejected the locality rule althogether. Illinois has modified its applicability, but it is still a relevant consideration in many medical malpractice suits.

The Illinois Appellate Court recently upheld the dismissal of a medical malpractice complaint, with prejudice, against two Illinois-licensed podiatrists, pursuant to Section 2-622 (Illinois Code of Civil Procedure). Section 2-622 requires that a plaintiff, or plaintiff’s attorney, file an affidavit of merit, with a medical malpractice complaint, stating that the affiant has consulted and reviewed the facts of his case with a healthcare professional who, in a written medical report, has determined that there is a “reasonable and meritorious cause” for filing an action.

The decedent in Christmas v. Hugar died, two weeks after undergoing foot surgery performed by the defendant podiatrists. Ill.App.Ct., 1st Dist. (2nd Div. 2011). Her estate alleged medical malpractice that resulted in her death. The expert who supported the plaintiff’s medical malpractice claim was not licensed to practice podiatry in the State of Illinois when the suit was filed. He was, however, licensed to treat feet under his Wisconsin physician’s license. The expert witness had graduated as a doctor of podiatric medicine in 1986, and although he had been licensed to practice podiatry at one time, he had allowed his license to lapse, without renewal, in 1990.

Section 2-622 requires that the medical report be authored by a health-care professional licensed in the same profession as the accused healthcare professional. The majority in this case strictly interpreted the term “licensed,” within the context of a medical malpractice, to mean licensed in the same profession and same class as the defendant. The Court in Christmas held that the expert report was not a “mere technical error,” and warranted dismissal, with prejudice.

Unfortunately, the defective expert report in this case was only discovered several months prior to trial, after four years of litigation. Medical malpractice attorneys should take care to ensure that their Section 2-622 reports comply with all requirements, to avoid undesirable results down the road, after significant time and costs have already been expended. Attorneys must be especially cautious in choosing out of state expert witnesses, as it will be more difficult to qualify an out of state expert in a medical malpractice action in light of this recent ruling.

In Iaccino v. Anderson, the Illinois Appellate Court recently held that a medical expert in a medical malpractice case can be impeached with the use of the physician’s Section 2-622 (Illinois Code of Civil Procedure) report as a prior inconsistent statement. 940 N.E.2d 742 (1st Dist. 2010). This issue was one of first impression.

Section 2-622(a)(1) requires that a plaintiff file an affidavit of merit, with the complaint, stating that the affiant has consulted and reviewed the facts of his case with a healthcare professional who, in a written medical report, has determined that there is a “reasonable and meritorious cause” for filing an action.

The plaintiffs in Iaccino brought suit against two doctors and a hospital for a brain injury suffered by their son, allegedly caused by oxygen deprivation during birth. The medical expert had provided the necessary report and testified as one of the plaintiff’s experts. In his report, the expert interpreted decelerations that he saw on a fetal monitor strip as “variable decelerations.” At trial, he testified on cross-examination that the same fetal monitor strip was “late deceleration” or “variable deceleration with a late component.” Defense counsel used the Section 2-622 report as a prior inconsistent statement for impeachment purposes, when plaintiff’s expert provided his contradictory testimony at trial.

On appeal, it was held that the impeachment was permissible, so long as a proper foundation was laid, and so long as the report’s content was materially consistent with the expert’s trial testimony. The appellate court stated, “Section 2-622 does not prevent … the author of such a report from qualifying his opinions to make clear that they are preliminary opinions subject to amendment or supplementation upon the acquisition of additional information such as additional medical records or deposition testimony.” It would, however, be up to the jury to assess the explanation and the credibility of the doctor’s testimony.

If a medical expert’s opinion as to cause of injury has changed after the Section 2-622 report was prepared, it is imperative that an attorney prepare the medical expert to explain this change of opinion in his testimony at trial.

Imagine walking into a hospital for neck pain, and not walking out. Instead, your body has lost movement in both your upper and lower extremities. This nightmare became a reality for Francisco Contreras.

Contreras initially hurt his neck while working at a Walgreen’s store, when he was moving a printer from a shelf. The pain persisted for at least a year, including shooting pain down his arms. Approximately, a year after the initial injury, June 14, 2006, Contreras had cervical disk surgery at Thorek Memorial Hospital. Contreras was initially able to move his extremities, both upper and lower after the surgery. Within the hour though, Contreras’ condition had worsened and their were signs that he was losing motor functions. The loss of movement started in his legs and moved to his arms within seven hours after surgery. No one passed along the information that Contreras could not move his legs from June 14 at 11:45 a.m. til June 15 at 11:00 p.m.

There was a build up of blood on his spinal cord that had gone undiagnosed, despite Contreras having lost feeling in his extremities. When discovered, the neurosurgeon rushed him into surgery, but it was too late, and Contreras became a permanent quadriplegic. The lawsuit that ensued, Francisco Contreras and Sandra Contreras v. Thorek Memorial Hospital et al, resulted in a $18.75 million dollar settlement. Plaintiffs alleged that Francisco Contreras’ quadriplegia could have been avoided, if it had been communicated to the neurosurgeon earlier. Two different nurses noticed that he could not move his legs, but never verbally told the operating neurosurgeon or the anesthesiologist who was in the room at the time it was noted. The anesthesiologist discharged him to the ICU, even though it was noted Contreras couldn’t moved his legs. Again, he was seen by two nurses who both noticed Contreras couldn’t move his legs and was beginning to lose feeling in his arms, but neither advised a physician. Clearly, there was a continuous chain of non-communication

In this settlement, the hospital contributed $18 million dollars and Holistic Nursing, Inc, which employed an agency nurse, contributed $750,000.00. This settlement provides for the acquisition of various annuities to try to take of Contreras’ future needs.

Sixty years ago, the U.S. Supreme Court ruled that the federal government could not be held liable under the Federal Tort Claims Act (FTCA) for injuries to members of the armed forces arising from activities incident to military service. Feres v. United States, 340 U.S. 135 (1950). What is now known as the Feres Doctrine, remains in force today, despite numerous attempts to over-rule the decision.
The FTCA allows persons wronged by a government employee to sue the government for their injuries. In fashioning the Feres Doctrine, an exception to the government’s waiver of sovereign immunity under the FTCA, the Supreme Court reasoned that the government already had a no-fault statutory compensation plan for military personnel under the Veterans’ Benefit Act, and later noted that the doctrine was necessary to maintain and protect military discipline.

Long criticized as unfair to servicemen, the Feres Doctrine was challenged in two cases decided by the Supreme Court in 1987. In Johnson v. United States, 481 U.S. 681 (1987), the United States was sued for injuries sustained by a service member due to the negligence of air traffic controllers (federal government employees). On a 5–4 decision, the Court reaffirmed the application of the Feres Doctrine. The Supreme Court again refused to overturn the doctrine in Stanley v. United States, 483 U.S. 669 (1987).

The Feres Doctrine also extends to actions brought by servicemen for medical malpractice actions against military hospital personnel. This may very well be the doctrine’s undoing because the Supreme Court is currently deciding whether it will review a case brought by the widow of a now deceased military serviceman, Sergeant Dean Witt. Witt was hospitalized for appendicitis at a medical center at the Travis Air Force Base where he was stationed. Mrs. Witt alleges various acts of medical malpractice caused Witt to suffer severe brain damage. He was taken off of life support after spending three months in a vegetative state.

Bound by Supreme Court precedent, the wrongful death action was recently dismissed by a three-judge panel in the 9th Circuit Federal Court. If this case is heard and overturned by the Supreme Court, the federal government could find itself suddenly exposed to a significant number of liability claims. Although many are championing this case as the best opportunity in years to overturn the unpopular doctrine, there may be far reaching negative consequences for the federal government.