CM Report of Recent Decisions – 2021 Volume 4

No Chance For A Non-IPI Instruction On The Lost Chance Doctrine In Medical Malpractice Actions After Gretencord-Szobar v. Kokoszka, 2021 IL App (3d) 200015 and Bailey v. Mercy Hospital and Medical Ctr., 2021 IL 126748

In Gretencord-Szobar, 2021 IL App (3d) 200015, this author defended a medical malpractice defense verdict in the Illinois Appellate Court, Third District, against plaintiff’s argument that a new trial should have been ordered because the trial court refused to give a non-IPI jury instruction explaining the lost chance doctrine to the jury.

The Seventh Circuit Warns That Appellate Practice Is A Minefield With Traps For The Unwary

The Seventh Circuit’s decision in Association of American Physicians and Surgeons, Inc. v. American Board of Medical Specialties, 15 4th 831 (7th Cir. 2021), is not remarkable for its ruling on the merits of the dispute. The Court affirmed the dismissal of a complaint alleging restraint of trade because it failed to meet the Iqbal/Twombly pleading standard.           

California Appellate Court Rules COVID-19 Death Suit May Proceed Against Widow’s Employer

A California appellate court recently ruled that plaintiff’s employer must face a lawsuit alleging that plaintiff contracted COVID-19 at work and infected her husband, causing his death. See’s Candies, Inc. v. Superior Court, 2021 Cal. App. LEXIS 1076; 2021 WL 6015641 (2d Dist.).

Cook County Uses HIPAA To Further Limit Discovery And Use Of Litigants’ Medical Records

On November 5, 2021, Cook County courts amended the standard HIPAA order used in cases throughout its divisions. The order is known as the HIPAA Qualified Protective Order (“QPO”), and it governs litigants’ ability to get an injured plaintiff’s medical records from treating physicians.

Federal And State Appellate Tribunals Continue To Rule For Insurers On COVID-19 Business Interruption Claims

In Volume 3 of our 2021 CM Report, I reported on a growing body of federal appellate precedent holding that first-party property policies do not cover COVID-19 business interruption losses. That body of federal appellate precedent keeps growing, as discussed below. And significantly, the state reviewing courts have begun speaking on the issue too and, following the federal precedent, these state reviewing courts are likewise holding that there is no coverage for these pandemic related losses.

Illinois Supreme Court Permits Fetal Wrongful Death Claims Against Physicians Where The Death Resulted From A Subsequent Lawful Abortion

The Illinois Supreme Court held in Thomas v. Khory, M.D. et al., 2021 IL 126074, that section 2.2 of the Wrongful Death Act, 740 ILCS 180/2.2, does not bar parents from pursuing a wrongful death claim against a physician when the alleged malpractice resulted in a non-viable fetus that died as a result of a subsequent lawful abortion.     

Seventh Circuit Finds A Private Cause Of Action Under FNHRA. Will SCOTUS Grant Certiorari?

Nursing homes and insurers beware: the Seventh Circuit recently held in Talevski v. Health & Hosp. Corp., 6 F.4th 713 (7th Cir. 2021), that residents and their families can pursue claims for monetary damages under 42 U.S.C. § 1983 and the Federal Nursing Home Amendments Act of 1987 (“FNHRA”), 42 U.S.C. § 1396r. This will undoubtedly impact nursing home litigation in Indiana, Illinois, and Wisconsin, the states that comprise the Seventh Circuit.   

Pain-killer: Oklahoma Limits Public Nuisance Liability

Some adages can use refinement. There’s the one about the only certainties in life being death and taxes. Right with them is pain, which for most people comes sooner than the other two. It can be so cruelly relentless that its victims will do most anything to rid themselves of it.