CM Wins Defense Verdict In Cook County Medical Malpractice Case

On August 10, 2016, a Cook County jury rejected Plaintiff’s wrongful death claims against an internal medicine physician and his practice group, both represented by Robert L. Reifenberg and Kathleen M. Klein.  The doctor and his group were the sole defendants.

Plaintiff, a registered nurse herself, brought suit on behalf of her husband, who was admitted as a hospital inpatient for unrelated respiratory complaints.  The patient had been followed for several years for an abdominal aortic aneurysm, which by the time of the admission had grown to over six centimeters.  On the third day of the hospital admission, the patient began to complain of abdominal pain.  The aneurysm ruptured, which was detected via CT scan that evening.  However, the patient died while a vascular surgeon was en route to the hospital.  Plaintiff asked for $3 million in damages for the patient’s death, including grief and loss of society on behalf of the widow and their eight children.

Plaintiff claimed that the diagnosis was delayed in the face of classic symptoms of rupture, including back pain.  Once a CT was ordered, it was documented as a “routine” study rather than “STAT,” or ASAP.  Plaintiff contended that the defendant physician ordered the CT scan routine, which delayed diagnosis and treatment of the rupture.

The defense successfully argued that the physician ordered the CT on a STAT basis, and notwithstanding of the documentation of the CT as “routine” in the chart, the CT was actually carried out as a STAT study.  The defense also established that an open aneurysm repair could not have been completed in the time that plaintiff proposed, and that due to many comorbidities, the decedent had virtually no chance of surviving an open surgery, regardless of when it was performed.  Counsel obtained key testimony throughout discovery from the treating physicians, and was able to elicit testimony from the treating witnesses, over and above retained expert testimony, to establish these defenses.

A novel issue in the case was Plaintiff’s pursuit of a “lost chance of survival” legal theory, which does not have model Illinois Pattern jury instructions.  However, the jury did not reach the issue of damages, as they returned a unanimous verdict in favor of the defendant physician and his group.