June 23, 2024

What is Discovery?

When an accident happens, the first thing parties should do in a personal injury claim is to investigate. Then, engage an experienced Chicago personal injury attorney who knows about discovery. Discovery is not a substitute for investigation. Without proof, an accident plaintiff will not have enough to get to trial.

In investigation, the plaintiff needs to look over the accident scene, and talk to witnesses. Once investigation is complete, the plaintiff can hand over the data to the attorney for discovery to begin. Discovery translates facts into admissible evidence during trial. An injury plaintiff who understands discovery knows the tricks a defendant may use to dismiss a case.

In a Complaint, a plaintiff seeks admissions by the defendant. The defendant’s Answer will provide some hints on discovery, but the defendant who pleads every possible defense may confuse the plaintiff into thinking the Answer is boilerplate. This leads the plaintiff to overlook the defenses. Then the defendant moves for entry of default or dismissal because the affirmative defenses were not contested. To combat this trick, the plaintiff should reply to affirmative defenses and move to strike those that do not apply. This protects the plaintiff from inapplicable defenses and gets rid of non-issues early.

Another defendant trick is to make a motion to dismiss when the plaintiff does not answer the defendant’s interrogatories submitted at the same time as the Answer. To combat this trick, serve interrogatories with the Complaint or as soon as the rules of civil procedure allow. This makes the defense answer discovery first so the plaintiff gets a leg up on the facts.

Requests for admissions ask a party to admit to whether a statement is true or false. When the defendant responds to requests for admissions in a personal injury case, the defendant may provide long responses that do not answer the questions. To get rid of this, file a motion to deem the admitted the facts the plaintiff wants because responses that do not answer the questions usually do not follow the rules of civil procedure.

Sometimes the defendant does not believe the plaintiff is really injured and makes the plaintiff go to an independent medical exam. This is when the defendant pays for a doctor to examine the plaintiff in the body part claimed to be hurt. The doctor may demean the treating doctor in the medical report like saying the treatment was not necessary or not attributed to the accident. The plaintiff should have someone taking notes at the doctor session to observe what actually takes place. Also, send the medical report to the treating physician. Doctors who insult other doctors will find out they will not have long lasting careers by insulting other doctors.

In a personal injury case, trial makes up perhaps 10% of the game. Trial starts with investigation and then discovery. To navigate through a personal injury action with confidence, engage an experienced Chicago personal injury lawyer.

Explaining The Personal Injury Claim Process

From a client’s perspective, a personal injury claim may seem to be a matter of simply filing a complaint and setting a trial date. In reality, it’s a lengthy procedure requiring many different steps, a skillful, experienced attorney, and a committed client. By breaking down the process into five stages, you the client will better understand the time and energy which is required to litigate a personal injury claim, and to understand how to assist your attorney with pre-suit investigation.

Investigation:  The personal injury lawyer’s first task is to obtain as much information as possible from the client. A good attorney will be sure to question the client closely about the circumstances giving rise to the case. In some instances, it will be important for the attorney to conduct legal research, either because the legal questions presented are complex, or to confirm her understanding of the applicable law. Additional pre-suit investigation may include the use of private investigators or experts to better understand complex non-legal issues or professional standards. Although it is common for surprises to arise later in a case, they can be avoided for the most part with a thorough pre-suit investigation.

Pleading: Once the investigation is complete, your attorney will likely commence legal proceedings by preparing a complaint which sets forth your allegations. The complaint is filed with a clerk of court, and the defendant is notified of the pending lawsuit, and given a certain amount of time to respond to the complaint.

Discovery: During discovery the plaintiff and the defendant will exchange information either through documents, or by way of depositions. At this point, attorneys for both sides may dispute the admissibility of evidence, seeking to have it either included or excluded.  At a deposition, both attorneys can question the deponent who must respond under oath. Depositions have many purposes, from collecting or confirming information from witnesses, to finding inconsistencies. Many lawsuits settle during the discovery stage, as both parties weigh the costs and benefits of going to trial.

Trial: At trial, both parties will present their case before a judge or jury, who will then render a judgment based on the evidence and argument presented. In a personal injury lawsuit, the judgment will usually be in the form of a monetary payment, should the plaintiff win the case.

Appeal: If either party is dissatisfied with the judgment rendered, that party may usually appeal the decision to a higher court. In an appeal, the higher court will reveal the lower court’s actions to determine if any material errors were made. The higher court will affirm, reverse, or remand that decision.


In the aftermath of Hurricane Katrina, negligence lawsuit arises

Tenet Healthcare Corporation is now part of a class-action suit—with a jury set to decide whether or not this corporation should be held accountable for the injuries and deaths at Memorial Medical Center in New Orleans.  The hospital was in desperate need for help after it was inundated with flood-water by Hurricane Katrina.  Memorial Medical Center, housed 1800 people during the storm, begged Tenet Healthcare Corporation for supplies and an airlift.  Email exchanges between Memorial Medical Center and Tenet Healthcare Corporation will be used in this lawsuit to show the desperate situation.  One email exposes the plea for help and the lack of reaction by the parent corporation.

The negligence suit, brought on behalf of the people that were at the hospital during the Hurricane, claims that insufficiencies in Memorial’s backup electrical system, along with failing to properly plan for patient care and evacuation resulted in personal injury and death.  After Hurricane Katrina, 45 bodies were discovered at Memorial, many more than other hospitals. In fact, doctors admitted that they had given patients drugs to hasten their deaths.  No criminal charges were brought against the doctors.  One civil claim of euthanasia was brought against a memorial doctor.  It was dismissed and is now being appealed.

Tenet and Memorial plan to argue the city’s failed levees, the huge hurricane and poor government response created the deadly environment.  However, Memorial may have had notice to make changes long before Hurricane Katrina; Memorial did not take a recommendation given in 2004 to move components of its electrical system above the bottom floor.  Memorial’s air conditioning shut down, first, by design, as the hospital emergency power system is not required to support air conditioning or heating.  Once the air conditioning shut off, the temperature in Memorial rose to over 100 degrees.  The increase in temperature created unlivable conditions and this caused numerous deaths, especially in elderly patients.


Negligence Suit Goes Beyond the Hospital

In Smith v. West Suburban Medical Center, et al, a patient fell off a stool in an x-ray room. Filed in 2006, the negligence suit also named Triton College [Triton] and a Triton student who was assisting the patient.

West Suburban brought a counterclaim against Triton arguing that the clinical agreement it had with the hospital indemnified them if a student’s actions led to a lawsuit against the hospital. The hospital sought summary judgment on the issue, and Triton argued that summary judgment wasn’t proper because the lawsuit named the student as an “apparent agent” and that was a question of material fact. Triton contended the other issue of material fact was whether or not the hospital maintained the x-ray room in a safe manner.

Cook County Circuit Judge Lynn M. Egan granted summary judgment in favor of the hospital. In doing so, Judge Egan determined that there was no issue of material fact. When there is no issue of material fact, the only question is how to apply the law to those specific facts. In this case, Judge Egan determined that the applicable law meant that Triton agreed to indemnify the hospital. Triton appealed the decision, but the First District Appellate Court affirmed the lower court’s decision, noting that the agreement clearly states that Triton will indemnify West Suburban for claims arising out of activities of its students. Triton College will be defending this lawsuit.

Clearly, this case shows that colleges are much more susceptible to litigation arising from their clinical students than one may have realized. The case is silent as to the language in the Agreement regarding the Hospital’s duty to supervise the student. We’ll just have to watch future trends in litigation to see if hospitals continue to pass on lawsuits to colleges based on language in clinical agreements.

Medical Malpractice: Locality Rule

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.

Defining the Term “Licensed” for Section 2-622 Purposes

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.

Using Section 2-622 Reports as a Prior Inconsistent Statement for Impeachment

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.

Medical Malpractice: Lack of Communication Causes Great Harm

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.

Proving Loss of Consciousness In Brain Injury Cases

Loss of consciousness is an important factor in brain injury cases, as loss of consciousness often accompanies serious head injuries. Although it is entirely possible for a brain injury to occur without a loss of consciousness, it is more likely that a loss of consciousness has occurred but not documented. Emergency room records often note “no reported loss of consciousness,” but as a rule, emergency personnel are not at the scene of the accident. Such a report, which may simply be inaccurate, can hinder a brain injury claim due to the above misconception. This means the attorney must look for signs of a loss of consciousness that may not be readily apparent to others.

In some cases the plaintiff may have been alone at the time he suffered a loss of consciousness, in which case there would be no witnesses and no record. For this reason, the plaintiff himself will typically be the best source in determining whether there was a loss of consciousness. A detailed interview with the plaintiff with particular attention to time sequence will provide clues, such as a gap in memory. If an interview does not reveal an unexplained gap in memory, it may very well reveal a change in mental state, such as forgetfulness or confusion. Family members may also lend insight: Was the plaintiff confused when they returned home? Did they repeat themselves? Sometimes a loss of consciousness will not reveal itself until hours after the injury occurred.

Similar information can also be gleaned from ambulance and emergency room reports. References to certain symptoms such as disorientation, nausea, or the need for oxygen could indicate a loss of consciousness occurred. Some common physical symptoms are fatigue, seizures, difficulty with speech, loss of motor control and coordination, sensory problems, difficulty sleeping, headaches, dizziness, nausea, vomiting, and balance difficulties. Common cognitive symptoms include loss of short-term or long-term memory, slowed thinking, difficulty concentrating, impaired judgment, reduced organizational skills, difficulty completing tasks, short attention span and lack of initiative.

A loss of consciousness can manifest itself in many ways, and a diligent attorney can use these symptoms and behaviors to support the argument that an otherwise undocumented loss of consciousness did occur. In doing so, the attorney can better persuade the jury that a loss of consciousness, and therefore, a brain injury, was sustained.

Outliving the Settlement….

On October 26, 1986, Dan Crews was three years old, in a booster seat riding in his mom’s car. His mother lost control of the car and hit another vehicle. Crews suffered a spinal cord injury. The booster seat he was strapped into was deemed defective, and he received a $6 million personal injury settlement in 1992, $4.2 million after attorneys fees were paid. This money was put into a trust fund. When the settlement was reached the doctors projected Crews to live 20 years. He’s already 27, has outlived the settlement money, and now doctors say that he might live to be 40.

Crews cannot move his body from his neck down, and needs a mechanical respirator to breathe for him. He can speak and eat, but is completely dependent on 24 hour supervision. With his mother as his primary caregiver, he has to be turned every two hours, can’t go to the bathroom, and can’t wash himself.

Crews spends $300,000 a year on nursing care and has at least that much in unpaid medical bills. In addition, he pays the sate $500 a month for Medicaid for a program which will qualify him for a nursing home after he loses/sells his property. Crews custom built his home for $350,000.00 and still owes $190,000.00 on the house. It is clear that in addition to the other expenses in his life, the mortgage is not being paid. With help from Freddie Mac, he reached an agreement to pay half of the mortgage until the house is sold.

Who should be held responsible for the inadequate settlement amount? What remedies will be available to future plaintiffs. These are questions the legal system will only need to address more and more in the future, as medical technology improves, plaintiffs will keep outliving their projected life expectancy.