MEDICAL MALPRACTICE / RES JUDICATA
Where a Plaintiff has been granted leave to file an amended complaint, but has not filed an amended complaint, he retains the ability to voluntarily dismiss his suit without reaching final judgment on the merits of those claims for purposes of res judicata.
Where the party seeking to invoke the doctrine of res judicata is relying on a prior dismissal of a claim against another party, the test is that the prior dismissal must have caused the defendant to prepare to address the actual merits of the plaintiff's claim before the dismissal will be deemed on the merits.
Williams v. Ingalls Memorial Hospital , (Ill. App. 1st Dist., February 17, 2011)
-Plaintiff filed medical malpractice, negligent spoliation, and intentional spoliation suit in 2003. In 2007, the negligent and intentional spoliation counts were involuntarily dismissed pursuant to 735 ILCS 5/2-615 with right to re-plead. Later in 2007, partial summary judgment was granted in favor of the hospital on the issue of the apparent agency of the defendant doctor. In 2008, before re-pleading the negligent and intentional spoliation counts, Plaintiff voluntarily dismissed the remaining counts of his complaint without prejudice. In 2009, Plaintiff refilled the instant action, which was identical to the complaint that was dismissed in 2008. Defendants moved to dismiss the re-filed action based on res judicata, which the trial court denied, but certified for review. The two certified questions were: (1) Does abandonment occur, for purposes of res judicata, where a plaintiff brings Counts for spoliation of evidence; the Counts are involuntarily dismissed with leave to re-plead, and the Counts are not re-pled prior to plaintiff's voluntary dismissal of the cause of action on the morning of trial? (2) Where summary judgment is entered against plaintiff on an allegation that the defendant physician is the apparent agent of the defendant hospital, and plaintiff then voluntarily dismisses the remainder of the case, does that order of summary judgment act as a res judicata bar to re-filing the case against the hospital and the defendant doctor? "Three requirements must be satisfied for res judicata to apply: (1) a final judgment on the merits has been rendered by a court of competent jurisdiction; (2) an identity of causes of action exists; and (3) the parties or their privies are identical in both actions. Hudson v. City of Chicago, 228 Ill. 2d 462, 467 (2008). As to the first certified question, the Appellate Court answered it in the negative because "where a Plaintiff has been granted leave to file an amended complaint, but has not filed an amended complaint, he retains the ability to voluntarily dismiss his suit without reaching final judgment on the merits of those claims for purposes of res judicata." As to the second certified question, the Appellate Court answered it in the positive in part and the negative in part. Specifically, the Plaintiffs were barred by res judicata from maintaining an apparent agency claim and any other claim that could have been raised against the Hospital, expect the claim for respondeat superior based on employment or actual agency. Relying on Leow v. A&B Freight Line, Inc., 175 Ill. 2d 176 (1997) and DeLuna v. Treister, 185 Ill. 2d 565 (1999) and applying Illinois Supreme Court Rule 273, which states, "Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits," the Appellate Court determined that the granting of summary judgment on the issue of apparent agency was on the merits and operated as a res judicata bar prohibiting re-litigating against the Hospital. The Plaintiff was, however, permitted to maintain an action against the Hospital solely on a respondeat superior theory based on employment or actual agency because it was alleged in the original complaint and the granting of summary judgment was only on the issue of apparent agency. On the other hand, the final judgment on the merits of the apparent agency claim did not act as a res judicata bar as to any claims against the other defendants. " Where the party seeking to invoke the doctrine of res judicata is relying on a prior dismissal of a claim against another party, the test is that the prior dismissal must have caused the defendant to prepare to address the actual merits of the plaintiff's claim before the dismissal will be deemed on the merits." Here, the lack of apparent authority of the doctor as agent of the Hospital was personal to the Hospital and, therefore, did not cause the other defendants to prepare to address the merits of Plaintiff's case against them. Thus, there was not res judicata bar against the remaining defendants.
Appeals / Jurisdiction / Pleadings
Court is without Jurisdiction Where Notice of Appeal is filed More Than 30 Days after Entry of Final Judgment
Manning v. The City of Chicago, No.1-09-1561 (February 25, 2011) Cook Co., 5th Div. (FITZGERALD SMITH) Appeal dismissed.
- Plaintiff's decedent filed suit against the City of Chicago for injuries sustained when a detective shot him in a police interview room, during a police interview. The jury rendered a verdict in favor of the Defendant, and the decedent died during pendency of his appeal. Although the decedent had timely obtained initial extension of time to file post trial motion after judgment on verdict, decedent failed to timely file post trial motion or obtain another extension of time to do so. Therefore, under Section 2-1202(c) of Code of Civil Procedure, the court was precluded from later granting requests for an extension of time, and decedent's post trial motion was a nullity, and his notice of appeal was also therefore untimely. The revestment doctrine was inapplicable, as the parties did not actively participate in proceedings inconsistent with the merits of judgment on verdict.
Immunity / Premises
Park District's Failure to Discover/Repair Defective Seesaw Did Not Constitute Willful and Wanton Conduct
Tagliere v. Western Springs Park District, No. 1-09-2633 (February 25, 2011) Cook Co., 5th Div. (HOWSE) Affirmed.
- Plaintiff's daughter, age 7, suffered a broken ankle when playing on allegedly defective seesaw owned and maintained by the Park District. Plaintiff alleged that Park District's failure to discover seesaw defects upon routine inspection and to make repairs constituted willful and wanton conduct. Additionally, the manufacture of the seesaw provided instructions to the Park District on how to inspect and maintain the seesaw. The Appellate Court ruled that the trial court did not err in finding there was no evidence that the Park District's conduct showed an utter indifference to or conscious disregard for safety of others or that the Park District had actual or constructive notice of the dangerous condition of the seesaw, or that the Park District had intentionally removed a safety device or feature from the seesaw. Therefore, the trial court properly granted summary judgment based on the District's immunity under the Tort Immunity Act, Section 3-106. This section provides that neither a local or nor a public entity or public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, building or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury. Importantly, Section 1-210 of the Tort Immunity Act defines willful and wanton conduct as follows: "A course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property. This definition shall apply in any case where a "willful and wanton" exception is incorporated into any immunity under this Act." In this case, the evidence established that the Park District had made repeated inspections of the seesaw prior to the Plaintiff's injury but failed to discover the defect. The Court ruled that based upon the record before it, it could not say that the Park District's failure to discover the defect, even after repeated inspections, constituted actual or deliberate intention to cause harm or showed an utter indifference to or conscious disregard for the safety of others. The Park District's failure to discover the defect may be arguably negligent. However, the conduct of the Park District was not willful and wanton as defined by Section 1-210.
Government / Immunity / Schools / Dismissal
Governmental Entities Enjoy Total Immunity for Failure to Provide Police Protection or Failure to Provide Adequate Police Services
Green v. Chicago Board of Education, No. 1-09-2313 (February 22, 2011) Cook Co., 2d Div. (HARRIS) Affirmed.
- Plaintiff's decedent, a high school student, was fatally shot during a violent altercation after the school dismissal bell rang, and outside the school where a dozen people were waiting, armed with golf clubs and other weapons. The Court ruled that dismissing the students from school was not a supervisory act, under Section 3-108 of the Tort Immunity Act. This section provides an exception to immunity for willful and wanton conduct. Section 4-102 provides absolute immunity for failure to provide police protection or adequate police protection. There is no exception for willful and wanton conduct or negligence. In this case, Plaintiff's allegations focused on the school's failure to provide police protection, not supervision. Section 2-202 provides an exception to the immunity for willful and wanton conduct where there is an execution or enforcement of a law. Here again, the Court ruled the action of dismissing students was not executing or enforcing a law. Moreover, any special duty exception did not override the immunities of the Tort Immunity Act. It never does.
Experts / Discovery
Federal Rules of Evidence 702 Defines "Expert" As a Person Who Possesses "Specialized Knowledge" Due to His "Skill, Experience, Training, or Education" That "Will Assist the Trier of Fact to Understand the Evidence or to Determine a Fact In Issue."
Physician's Competence to Testify to Opinio0n That Is Within Expertise of Any Physician
No Need to Disclose Expert's Report For Treating Physician Under FRCP 26 (a)(2)(b) Unless Testimony Exceeds the Scope of Treatment and Ventures Into More General Expert Opinion Testimony
A New Trial For Failure to File Rule 26 (a)(2)(b) Report of Physician Is Only Required If the Error Was Harmful
Banister v. Burton, No. 10-1484 (February 14, 2011) N.D. Ill., E. Div. Affirmed
- In this prosecution of a section 1983 action, the plaintiff alleged that defendants-police officials violated plaintiff's civil rights when they shot and arrested plaintiff on robbery charge during Plaintiff's attempted drug buy with an undercover police officer. There were two completely contrary versions of the facts of the transaction by the parties in the underlying criminal trial. Plaintiff had testified he was unarmed at the time of the occurrence, while the arresting officer claimed that Plaintiff had pulled a gun on him and that he shot him 13 times in fear of his getting shot himself. A gun was found about 40 feet from the arrest scene. The plaintiff was eventually acquitted of the charges, and brought the 1983 action, but the District Court held in favor of the defendant, City. At the civil trial, Plaintiff's treating physician, a trauma surgeon, testified on behalf of the City defendants that plaintiff could have thrown gun found at arrest scene in spite of several gunshot wounds. Plaintiff asserted several arguments for error on appeal that the trial court had improperly admitted testimony of Plaintiff's treating physician. Plaintiff claimed that there was inadequate disclosure and that the physician wasn't competent in his expertise to give the opinion. Affirming the defense verdict, the Court held that the physician's testimony did not violate Rule 26(a)(2) where the defendants had disclosed their intention to call said witness, and where the witness, as a trauma surgeon, had sufficient knowledge to inform jury on issue of plaintiff's ability to throw gun or crawl at arrest scene. The defendants were not required to file expert witness report under Rule 26 (a)(2)(B) because said physician was plaintiff's treating physician and was not retained by defendants, but even if a report had been required, the Court held that the error would have been harmless, as Plaintiff knew of the physician's testimony from the criminal case..
The Federal Rules of Evidence define an "expert" as a person who possesses "specialized knowledge" due to his "skill, experience, training, or education" that "will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993), the Supreme Court explained that it is the district court's role to act as a gatekeeper before admitting expert scientific testimony in order to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." See also Happel v. Walmart Stores, Inc., 602 F.3d 820, 824 (7th Cir. 2010). When a district judge applies Rule 702 and Daubert, we will only reverse a ruling if it is "manifestly erroneous." General Electric Co. v. Joiner, 522 U.S. 136, 142 (1997).
The plaintiff cited several cases in which the court found that a doctor's experience and training did not fulfill the criteria of Rule 702 and Daubert. See Wilson v. City of Chicago, 6 F.3d 1233, 1239 (7th Cir. 1993) (holding that the opinion testimony of a pathologist was properly excluded because a "pathologist, which is to say an expert on postmortems" is not an expert on the effects of electroshock treatments on the human body and psyche); Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996) (affirming the exclusion of a doctor's opinion on the grounds that it was a mere "hunch" and "lack[ed] scientific rigor"), but here the physician's testimony was found to be within the competence of any physician.
Plaintiff then argued that the judge committed reversible error by allowing Dr. Fishman to testify because the City had failed to file an expert witness report under Rule 26(a)(2)(B). The rule requires that a party must file a written report "if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The Court has interpreted this rule to require that "allwitnesses who are to give expert testimony under the Federal Rules of Evidence must be disclosed under Rule 26(a)(2)(A)" while "only those witnesses 'retained or specially employed to provide expert testimony' must submit an expert report complying with Rule 26(a)(2)(B)." 356 F.3d at 756-57 (emphasis in original). Accordingly, the City argues that it was not required to file a report because Dr. Fishman was the treating physician and he was not retained by the City. If the Rule 26(a)(2)(A) testimony exceeds the scope of treatment and ventures into more general expert opinion testimony, a report may be necessary." 356 F.3d at 758 n.3. Recently, we held that: a treating physician who is offered to provide expert testimony as to the cause of the plaintiff's injury, but who did not make that determination in the course of providing treatment, should be deemed to be one "retained or specially employed to provide expert testimony in the case," and thus is required to submit an expert report in accordance with Rule 26(a)(2).Meyers v. National Railroad Passenger Corp., 619 F.3d 729, 734-35 (7th Cir. 2010).
Even if the City was required to file a report for Dr. Fishman, a new trial is only required if the error was harmful. a district court: need not make explicit findings regarding a justification or the harmlessness of the Rule 26 violation, but the following factors should guide the district court's discretion: (1) the prejudice or surprise to the party against whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing the evidence at an earlier date. 422 F.3d 570, 585 n.21 (7th Cir. 2005) (citing David v.Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003)). In this case, the judge was correct that even if a report was necessary, the failure to file one was clearly harmless because Banister wasn't surprised by the doctor's testimony-he heard it before in the state trial. Also, the plaintiff had provided no evidence that the failure to file the report was in bad faith. The City reasonably believed that Dr. Fishman was not covered by the rule: he was the treating physician and was not "retained or specially employed to provide testimony."
NEGLIGENCE / TORT IMMUNITY / WILLFUL AND WANTON
A statute that is particular and relates to only one subject will prevail over one that applies to cases generally; therefore, Section 4-106(b) of the Tort Immunity Act trumps Section 2-202.
When a provision of the Tort Immunity Act contains no exception for willful and wanton conduct, the courts will not read one in.
Ries v. The City of Chicago, (Ill. Sup Ct., February 25, 2011)
-Plaintiffs were injured when a man, who had been placed in the back of a police car for suspicious activity, stole the police car, ran a red light, and collided with Plaintiffs' vehicle. Plaintiffs sued the city over the officer's conduct. The Appellate Court held that the city was immune from liability pursuant to Section 4-106(b) of the Tort Immunity Act. The Illinois Supreme Court affirmed. Section 4-106(b) provides for immunity for injuries inflicted by an escaped or escaping prisoner. There is no willful and wanton exception. An escaping prisoner is defined as "a person held in custody" and it is not restricted to imprisoned persons. The man who stole the police car that he was placed in was clearly an "escaping prisoner." Thus, the city was immune. The Plaintiffs argued that the willful and wanton exception found in Section 2-202 applied. Section 2-202 provides, "[a] public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct." The Supreme Court ruled that Section 4-106(b) trumps Section 2-202. The court reasoned that while both sections apply in this case, "a statute that is particular and relates to only one subject will prevail over one that applies to cases generally." In this case, Section 4-106(b) deals specifically with immunity for injuries inflicted by escaping prisoners, whereas Section 2-202 is a general section applying to immunity for acts or omissions in the execution or enforcement of any law. Since Section 4-106(b) is more particular that Section 2-202, Section 2-202's willful and wanton exception does not prevail over 4-106(b)'s absolute immunity. Finally, the Plaintiff argued that the willful and wanton exception in Section 2-202 is a general exception to all of the other sections in the Tort Immunity Act. The Illinois Supreme Court obviously rejected that argument. "[W]hen a provision of the Tort Immunity Act contains no exception for willful and wanton conduct, [the courts] will not read one in." Since 4-106(b) does not contain a willful and wanton exception, the city has absolute immunity.
MEDICAL MALPRACTICE / STATUTE OF LIMITATIONS / TORT IMMUNITY ACT
For purposes of Section 8-101(b) of the Tort Immunity Act, an injury "arises out of patient care" if the injury is casually connected to the patient's medical care and treatment; the injury has to originate from, stem from, or result from the patient's medical care or treatment.
Kaufmann v. Schroeder , (Ill. Sup. Ct., February 25, 2011)
-Plaintiff filed suit against a doctor and municipal hospital for injuries she sustained when the doctor allegedly sedated her for an unnecessary exam that did not require sedation, and after she was sedated, sexually assaulted her. The Plaintiff filed suit after the one year mark, but before the two year mark. The trial court dismissed the municipal hospital on statute of limitation grounds. The Appellate Court affirmed. The issue in this case was whether the one year limitations period in Section 8-101(a) of the Tort Immunity Act or the two year limitations period in Section 8-101(b) of Tort Immunity Act applied. Section 8-101(a) provides, "No civil action other than an action described in subsection (b) may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued." Section 8-101(b) provides "No action for damages for injury or death against any local public entity or public employee, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of those dates occurs first, but in no event shall such an action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in the action to have been the cause of the injury or death." Thus, the question was whether the Plaintiff's injuries "arouse out of patient care." Citing Brucker v. Mercola, 227 Ill. 2d 502, 523 (2007), "an injury arises out of patient care if the injury is casually connected to the patient's medical care and treatment." Although "arising out of patient care" is to be construed broadly, the interpretation is not so broad as to encompass "but for" causation. Id. Similarly, in Orlak v. Loyola University Health System, 228 Ill. 2d 1, 14-15 (2007), the court reiterated that "arising out of patient care" did not encompass "but for" causation. Rather, it meant that the injury had to originate from, stem from, or result from the patient's medical care or treatment. In this case, the Plaintiff did not allege that she was injured because of the medical treatment she received. In other words, she did not claim that the unnecessary exam and sedation she received harmed her in any way. Rather, the harm resulted from the sexual assault. The unnecessary exam and sedation were not part of the doctor's medical treatment, but simply a means by which the doctor was able to accomplish his sexual assault on the Plaintiff. Therefore, the Plaintiff's injury arose out of the doctor's sexual assault and not out of any medical care she received. Thus, the one year statute of limitations in Section 8-101(a) applied rather than the two year statute of limitations in Section 8-102(b). As such, the Illinois Supreme Court affirmed both the trial and appellate court dismissal of Plaintiff's complaint against the municipal hospital.
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