Justia Professional Malpractice & Ethics Opinion SummariesArticles Posted in Supreme Court of Illinois
Zander v. Carlson
Fox Lake patrol officer Zander was charged with misconduct arising from multiple job-related incidents. The chief recommended termination. Zander's union, FOP, assigned Attorney Carlson, an FOP employee. Zander had no input into the choice of an attorney, had no retainer agreement with Carlson, and was not charged for Carlson’s services. Under the Illinois Municipal Code (65 ILCS 5/1-1-1), police officers who face removal or discharge are entitled to a hearing before the local board of fire and police commissioners unless a collective bargaining agreement (CBA) provides for arbitration. The CBA between Fox Lake and FOP gave officers the option of pursuing either avenue. On Carlson’s advice, Zander chose arbitration. The arbitrator upheld the termination. Zander sued, alleging legal malpractice and that FOP has no right to employ attorneys to furnish legal services under its direction to FOP members, and cannot control what attorneys assigned to help FOP members may do and “should be vicariously liable.”The circuit court dismissed, citing the U.S. Supreme Court’s "Atkinson" holding, which immunizes union members and officers against personal liability for actions taken while acting as a union representative in the context of the collective bargaining process. The court noted the parallels between federal labor law and the Illinois Public Labor Relations Act. The Illinois Supreme Court agreed. But for the collective bargaining agreement. FOP would have owed Zander no duty. Zander’s claim against the union fell within the exclusive jurisdiction of the Illinois Labor Relations Board. View "Zander v. Carlson" on Justia Law
People v. Green
Green, was convicted of two counts of the first-degree murder for the gang-related shooting death of Lewis and was sentenced to 35 years’ imprisonment on one of those convictions. The conviction was affirmed on direct appeal. The trial court rejected a post-conviction petition alleging that Green’s trial counsel, Ritacca, labored under a per se conflict of interest because his trial counsel had previously represented Williams, the intended victim of the murder, who was in the vehicle with Lewis at the time of the shooting. Green neither knew about the conflict nor waived the conflict was rejected.The appellate court and Illinois Supreme Court affirmed, finding no per se conflict of interest. Only three situations establish a per se conflict of interest: where defense counsel has a prior or contemporaneous association with the victim, the prosecution, or an entity assisting the prosecution; where defense counsel contemporaneously represents a prosecution witness; and where defense counsel was a former prosecutor who had been personally involved with the prosecution of the defendant. Ritacca’s representation of both defendant and Williams did not fit within any of those three per se conflict situations. View "People v. Green" on Justia Law
Robert R. McCormick Foundation v. Arthur J. Gallagher Risk Management Services, Inc.
In 2010, the Foundations and their insurance broker, Gallagher, discussed the renewal of the Foundations’ $25 million directors and officers (D&O) insurance coverage. The Foundations wanted to obtain the same coverage with a reduced premium. Gallagher offered renewal of the existing Chubb policy or the purchase of a $25 million Chartis policy, stating that the Chartis policy provided the same coverage with a premium that was $3400 lower. Unbeknownst to the Foundations, the Chartis policy contained a broad exclusion of claims related to securities transactions; the Chubb policy contained a narrower exclusion. In 2007, the Foundations sold their Tribune stock for $2 billion during a leveraged buyout. A year later, the Tribune filed for bankruptcy. The Foundations were named in suits filed by aggrieved shareholders, alleging fraud. The Foundations tendered the litigation to Chartis, which denied coverage. The Foundations, asserting that Chubb would have defended and indemnified them, sued Gallagher for breach of contract and professional negligence. Gallagher’s defenses asserted that the Foundations’ conduct was fraudulent and uninsurable and that the Foundations knew of “an ongoing, progressive loss” before changing insurers. Gallagher subpoenaed the Foundations and their attorneys, seeking communications related to the Tribune bankruptcy and the litigation. The Foundations asserted attorney-client privilege. The circuit court applied an exception, finding that Gallagher had a “common interest” with the Foundations because it was “standing in the insurer’s shoes for the purposes of this malpractice issue and may bear the ultimate burden of payment of the underlying claims and defense costs.”The Illinois Supreme Court reversed. The common-interest exception to the attorney-client privilege does not extend to these circumstances, where there is no insured-insurer relationship between the parties and the party claiming the privilege is bringing suit based on the defendant’s negligence in failing to procure appropriate insurance as a broker. View "Robert R. McCormick Foundation v. Arthur J. Gallagher Risk Management Services, Inc." on Justia Law
Ward v. Decatur Memorial Hospital
In December 2007, the decedent had gastric bypass surgery and developed a bed sore that became infected. The Hospital discharged him four days after the procedure. In January 2008, the decedent died from complications associated with a bacterial infection. Ward's initial nine-count complaint was dismissed for failure to comply with the Code of Civil Procedure. First and second amended complaints were also dismissed. The Hospital filed its answer to a third amended complaint. Four years later, in December 2015, the judge issued a pretrial conference order. A jury trial was set for January 2016. On December 31, 2015, the Hospital moved to bar Ward’s disclosure of a rebuttal witness the day before, 20 days before the start of the trial, noting that the case had been pending for six years. Ward unsuccessfully sought leave to file a fourth amended complaint, alleging a survival claim against the Hospital under a theory of respondeat superior and a wrongful death claim against the Hospital under a theory of respondeat superior. Ward successfully moved to voluntarily dismiss the action without prejudice. In May 2016, Ward initiated another lawsuit against the Hospital, nearly identical to the proposed fourth amended complaint. The Illinois Supreme Court ruled in favor of Ward, overturning summary judgment in favor of the Hospital. None of the orders dismissing counts of the various complaints in the initial action were final. The lack of finality renders the doctrine of res judicata inapplicable. View "Ward v. Decatur Memorial Hospital" on Justia Law
Stanphill v. Ortberg
Keith's estate filed a wrongful death and survival action against Ortberg, a licensed clinical social worker and employee assistance program counselor, and her employer Rockford Memorial Hospital, alleging that, on September 30, 2005, Keith had an initial appointment with Ortberg; that it was Ortberg’s duty to evaluate Keith’s mental health condition; that Ortberg breached her duty by performing an inadequate assessment and failed to recognize that Keith was at high risk for suicide, and failed to refer him to an emergency room or a psychiatrist for immediate treatment. Keith died by suicide on or about October 6, 2005. The circuit court submitted an instruction, over plaintiff’s objection, asking the jury to respond “Yes” or “No”: Was it reasonably foreseeable to Ortberg on September 30, that Keith would commit suicide on or before October 9? The jury entered a general verdict in favor of the plaintiff, awarding damages of $1,495,151, but answered “No” on the special interrogatory. The circuit court ruled that the special interrogatory answer was inconsistent with the general verdict and entered judgment in defendants’ favor. The appellate court found, and the Illinois Supreme Court affirmed, that the special interrogatory was not in proper form and should not have been given to the jury; it did not apply the objective “reasonable person” standard for determining foreseeability and, therefore, misstated the law, Because the special interrogatory was ambiguous, the jury’s answer was not necessarily inconsistent with its general verdict. View "Stanphill v. Ortberg" on Justia Law
Palm v. Holocker
Defendant struck Plaintiff, a pedestrian with his vehicle. Plaintiff filed a personal injury suit. Defendant filed an answer with an affirmative defense. Defendant answered an interrogatory about his drivers' license by stating that he had diabetes and required medical approval to drive, but refused to answer follow-up questions about his medical condition, stating that the question violates HIPAA, doctor-patient privilege; the Defendant has not placed his medical condition at issue. The court found that Plaintiff had legitimate cause to believe that Defendant had sight problems that could have been related to the accident and held Defendant’s attorney in contempt. The court found the attorney was not entitled to assert the physician-patient privilege, 735 ILCS 5/8-802. The Illinois Supreme Court affirmed the appellate court’s reversal of the contempt order. A plaintiff may not waive a defendant’s privilege by putting the defendant’s medical condition at issue. Neither the plaintiff nor the defendant asserted anything about defendant’s physical or mental condition. If these allegations put a defendant’s medical condition in issue, then it will be at issue in most traffic accident cases. The court urged the legislature to clarify the meaning of “at issue” and noted that, when a patient obtains a physician’s report to maintain his driving privileges, he is not seeking treatment so the privilege does not apply to the record filed with the Secretary of State. View "Palm v. Holocker" on Justia Law
Gonzalez v. Union Health Service, Inc.
The administrator of the decedent’s estate brought a wrongful death and survival action against Union Health Service based on alleged negligence in providing medical treatment the decedent. UHS moved to dismiss on the grounds that it is immune from suit under the Voluntary Health Services Plans Act (215 ILCS 165/26), as a “health services plan corporation”. The Act provides: A health services plan corporation incorporated prior to January 1, 1965, operated on a not for profit basis, and neither owned or controlled by a hospital shall not be liable for injuries resulting from negligence, misfeasance, malfeasance, nonfeasance or malpractice on the part of any officer or employee of the corporation, or on the part of any person, organization, agency or corporation rendering health services to the health services plan corporation’s subscribers and beneficiaries.” The circuit court denied the motion, reasoning that a 1988 amendment to section 26 was unconstitutional because it left intact UHS’s statutory immunity while eliminating that immunity for all other similarly situated entities. The Illinois Supreme court reversed. UHS was also immune under the prior version of the law. The former version of the law has been upheld by our appellate court against constitutional attack. addressing the constitutionality of the 1988 amendment is not necessary for resolution of this case. View "Gonzalez v. Union Health Service, Inc." on Justia Law