Justia Professional Malpractice & Ethics Opinion SummariesArticles Posted in Supreme Court of Illinois
Midwest Sanitary Service, Inc. v. Sandberg, Phoenix & Von Gontard, P.C.
Crane filed a complaint for retaliatory discharge, alleging that his employment with Midwest was terminated after he reported numerous health and safety violations to the Illinois Environmental Protection Agency. Crane was awarded $160,000 in compensatory damages and $625,000 in punitive damages. The appellate court affirmed. After losing the underlying action and paying damages to its former employee, Midwest filed a legal malpractice complaint against its attorneys and the Sandberg law firm, alleging that the attorneys failed to list all witnesses intended to be called at trial in compliance with Illinois Supreme Court Rule 213(f), resulting in six defense witnesses being barred from testifying, and several other errors.The circuit court denied the defendants’ motion to dismiss but certified a question for immediate appeal: Does Illinois’ public policy on punitive damages and/or the statutory prohibition on punitive damages [in legal malpractice actions, 735 ILCS 5/2-1115] bar recovery of incurred punitive damages in a legal malpractice case where the client alleges that, but for the attorney's negligence in the underlying case, the jury in the underlying case would have returned a verdict awarding either no punitive damages or punitive damages in a lesser sum?” The appellate court and Illinois Supreme Court answered the question in the negative and affirmed the judgment. View "Midwest Sanitary Service, Inc. v. Sandberg, Phoenix & Von Gontard, P.C." on Justia Law
Johnson v. Armstrong
Johnson suffers from severe, permanent nerve damage, which he alleges was caused by a negligently performed hip replacement surgery. He sued his surgeon, Dr. Armstrong, citing specific negligence and the doctrine of res ipsa loquitur. He also brought a res ipsa loquitur claim against a surgical technician who participated in the surgery. Johnson provided one expert witness, also a surgeon, to establish the elements of res ipsa loquitur. The court granted the technician summary judgment, stating that Johnson failed to present an expert witness to establish the standard of care for a technician, that the control element of res ipsa loquitur was not met, and that there was no evidence of negligence on the technician’s part. The court subsequently granted Armstrong summary judgment on the res ipsa loquitur count, leaving the count of specific negligence remaining. The appellate court reversed. The Illinois Supreme Court dismissed and vacated in part. The effect of the summary judgment in favor of Armstrong is to preclude Johnson from proving that Armstrong was negligent under the unique proofs of res ipsa loquitur, but the claim for negligence remains outstanding. The summary judgment order with respect to Armstrong was not a final judgment; the appellate court lacked jurisdiction. With respect to the other defendants, the elements of res ipsa loquitur were met at the time of the decision; no further expert testimony on the standard of care was required. Given that the Armstrong summary judgment was pronounced after the technician was orally dismissed from the res ipsa loquitur count, the circuit court was directed to reconsider that order in light of this opinion. View "Johnson v. Armstrong" on Justia Law
Suburban Real Estate Services, Inc. v. Carlson
In 2006, Suburban, owned by Barus, and ROC formed ROC/Suburban LLC, which acted as a vendor to Suburban. In 2010, Barus retained attorney Carlson for legal advice in unwinding that relationship. ROC sued Suburban, alleging breach of fiduciary duty. The Gaspero Law Firm defended Suburban in the ROC litigation. In June 2015, the court entered judgment for ROC and ordered Suburban to pay 50% of the fair value of the assets that Barus had improperly transferred out of ROC/Suburban.In May 2016, Barus and Suburban filed a legal malpractice action against Carlson, who allegedly recommended or approved the self-help actions that resulted in the breach of fiduciary duties. The circuit court held that the claim was barred by the two-year statute of limitations (735 ILCS 5/13- 214.3(b)) because the injury began when the plaintiffs retained new counsel and that the plaintiffs knew they were injured in 2013 at the latest when the judge stated that Carlson had committed malpractice.The appellate court reversed; the Illinois Supreme Court agreed. The plaintiffs did not suffer a realized injury until the court found a breach of fiduciary duty and entered a judgment against them. Although plaintiffs may have been alerted in 2013 that counsel misadvised them, the possibility of damages was not actionable until the ROC litigation ended and plaintiffs became obligated to pay damages as a result of Carlson’s advice. View "Suburban Real Estate Services, Inc. v. Carlson" on Justia Law
Bailey v. Mercy Hospital and Medical Center
Jill, age 42, died two days after seeking treatment at Mercy’s emergency department. A postmortem examination by the medical examiner indicated that Jill died from myocarditis resulting from sepsis; Jill’s blood cultures showed that MRSA bacteria was present in Jill’s blood. At the request of Jill’s family, Bryant performed a second autopsy and concluded that Jill’s cause of death was acute and chronic congestive heart failure due to dilated cardiomyopathy. Bryant’s report did not indicate that Jill had myocarditis or sepsis. Her estate sued for wrongful death and medical negligence, arguing that Jill died of toxic shock syndrome and sepsis caused by a retained tampon, which could have been treated by antibiotics if timely diagnosed. A jury returned a verdict in favor of all defendants.The Illinois Supreme Court affirmed, rejecting an argument that the circuit court abused its discretion and denied the plaintiff a fair trial by refusing to issue a nonpattern jury instruction on the loss of chance doctrine and a pattern jury instruction on informed consent. When a jury is instructed on proximate cause through a pattern jury instruction, the lost chance doctrine, as a form of proximate cause, is encompassed within that instruction. The plaintiff never alleged that Jill consented to medical treatment without being adequately informed and that the treatment injured her. The plaintiff’s proposed jury instruction did not identify any treatment Jill received or any injury she received from that treatment. View "Bailey v. Mercy Hospital and Medical Center" on Justia Law
Ittersagen v. Advocate Health and Hospitals Corp.
Ittersagen brought a medical malpractice action against Advocate Medical and Dr. Thakadiyil, alleging that the defendants negligently failed to diagnose him with sepsis and treat him appropriately. A jury was sworn. More than halfway through the trial, the court received a note from a juror, who reported that he had a business relationship with “the Advocate Health Care System Endowment.” The juror, a partner in a company that handles investments, said he believed the endowment was affiliated with but separate from Advocate Medical. He explained that his connection to Advocate Medical was so attenuated that he forgot to mention it during jury selection. The juror insisted that the outcome of the trial would not affect him financially and that he could remain fair and impartial. The trial court denied Ittersagen’s request to remove the juror for actual bias or implied bias and to replace him with an alternate juror. The jury returned a verdict for the defendants.The appellate court and Illinois Supreme Court affirmed, rejecting an argument that the juror’s business relationship with the endowment created a presumption of bias that cannot be rebutted by claims of impartiality. The court noted the lack of evidence of the affiliation between the endowment and Advocate. The juror did not owe Advocate a fiduciary duty and did not have any other direct relationship with the defendants that would create a presumption of juror bias as a matter of law. View "Ittersagen v. Advocate Health and Hospitals Corp." on Justia Law
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