The plaintiffs in two recent Illinois medical malpractice cases sought to set new precedents, or at a minimum, ignore statutory requirements for proving their cases. Ultimately in both cases the Illinois Supreme Court confirmed well established precedents regarding the minimal requirements to prevail in Illinois malpractice and medical battery cases. The first case, Radwill v. Manor Care of Westmont, IL, LLC, 2013 IL App (2d) 120957, involved a plaintiff who sought to move forward with her case despite the statute of limitations. The second case, Holzrichter v. Yorath, 2013 IL App (1st) 110287, involved a plaintiff who sought to set his own standard for who can serve as an expert witness in a medical malpractice case.
Radwill v. Manor Care of Westmont
Radwill v. Manor Care of Westmont involves alleged negligence by Manor Care of Westmont in the care of the plaintiff’s deceased husband, Richard Radwill. In January 2007, while a patient at Manor Care, Richard Radwill developed pneumonia. Manor Care staff did not diagnose or treat the pneumonia. Radwill ultimately was transferred to Advocate Good Samaritan Hospital where he died on February 19, 2007. In February 2011 plaintiff Violet Radwill, as administrator of Richard Radwill’s estate, sued Manor Care. The plaintiff contended that but for Manor Care’s inaction, Richard Radwill would not have died.
The defendant Manor Care moved to dismiss the case as the statute of limitations had expired. Under Illinois law, 735 ILCS 5/13-212(a), plaintiff was required to file her case within two years of when Richard Radwill died. Plaintiff did not file the case until almost 4 years after Richard Radwill’s death. Plaintiff countered by arguing that the two year statute of limitations did not apply to the defendant because Manor Care is not a health care provider, but a nursing home. Plaintiff also contended that the defendant is also liable under a breach of contract theory in that when Richard Radwill was admitted to Manor Care, Manor Care agreed to provide him with “competent and adequate” care. In failing to do so, plaintiff contends that Manor Care was in breach of contract. A breach of contract claim would not be subject to a 2 year statute of limitations, but subject to a 5 or 10 year limitation that applies to oral or written contracts.
The Illinois Second District Appellate Court sided with defendant Manor Care, upholding the lower court’s decision to dismiss plaintiff’s complaint. The Second District found the 2 year statute of limitations rule does indeed apply to nursing facilities. Furthermore, the court concluded that the essence plaintiff’s claim was not about a breach of contract but about a failure to provide adequate medical care.
The decision in Radwill is a reminder that the 2 year statute of limitations rule for medical malpractice cases established by the Illinois legislature has little flexibility. Merely recasting a medical malpractice claim into another type of claim will not likely pass judicial scrutiny if the case is at its core a medical malpractice case.
Holzrichter v. Yorath
Holzrichter v. Yorath involved a medical malpractice claim for injuries that the plaintiff Holzrichter alleges he suffered after a surgical procedure on his toe. The plaintiff chose to represent himself. The original lawsuit was filed against Dr. Martin Yorath and several medical facilities and association. In addition to medical malpractice, the suit also alleges medical battery, negligence and antitrust violations.
The plaintiff injured his toe while jogging in 1995. However, he did not see a doctor until 2002- 7 years after the injury. From 2002-2004, Plaintiff consulted with defendant Yorath and other foot specialists regarding pain in the toe. Ultimately, Dr. Yorath performed surgery to repair plaintiff’s damaged toe. After the surgery, plaintiff complained of lingering issues that he felt resulted from Dr. Yorath failing to perform the surgery according to accepted medical standards. In February 2005, the plaintiff filed a claim pro se against Dr. Yorath and others. Against Dr. Yorath, plaintiff, alleged medical malpractice and medical battery. The circuit court eventually dismissed all of the claims against Dr. Yorath and the other defendants, except the medical battery claim. When requested to provide expert witnesses to provide evidence to support the medical battery claim as required by law, the plaintiff listed himself. The plaintiff felt that even though he was not a medical doctor, he believed that his education and research qualified him to be an expert in this case. The defendant moved for summary judgment, arguing that the plaintiff failed to disclose any expert testimony regarding causation and damages. The court granted summary judgment. The First District agreed with the lower court, finding that a plaintiff filing a medical malpractice claim must follow the statutory requirement of including an affidavit from a healthcare professional.
Holzrichter is another example of how important it is to understand the requirements for filing a medical malpractice case that will survive a motion to dismiss. Holzrichter is no less instructive because the plaintiff represented himself. Ultimately, when trying to set precedent or offer a novel interpretation of existing law, it is important to understand the reasoning behind the status quo and the challenge of setting new precedent.
This article was contributed by the law offices of Salvi, Schostok & Pritchard P.C.