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List of Forms by Chapter - Chapter 1 — Initial Client Contact
- I. [1.1] Introduction — Scope of Chapter
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II. [1.2] Preinterview Considerations for Plaintiff - III. [1.8] Initial Case Assessment — Defense Considerations
- IV. Client Contact
- [1.9] Initial Telephone Contact
- [1.10] Plaintiff’s Initial Medical Research
- [1.11] Timing of Initial Meeting with Defendant Physician
- [1.12] Initial Interview with Plaintiff
- [1.13] Initial Interview with Defendant Physician
- [1.14] Plaintiff’s Determination of Whether To Proceed
- [1.15] Acceptance of Plaintiff’s Case
- V. [1.16] Preparation of Defendant’s Initial Responsive Pleadings
- VI. Medical Records
- VII. [1.21] Plaintiff’s In-Office Review
- VIII. [1.22] Obtaining an Expert — Plaintiff’s Perspective
- IX. [1.25] Appropriate Expert Review — Defense Perspective
- X. [1.26] Plaintiff’s Medical Malpractice Statutory Requirements
- XI. [1.29] Formulation of Defense Discovery Plan
- XII. [1.30] Conclusion
- XIII. Appendix
- Sample Forms
- [1.31] Attorney Retainer Agreement in Medical Malpractice Action (Plaintiff)
- [1.32] Medical Malpractice Referral Agreement (Plaintiff)
- [1.33] Authorization for Release of Plaintiff’s Medical Record Information
- [1.34] Complaint Seeking Production of Medical Records (Plaintiff)
- [1.35] Cook County HIPAA Protective Order
- [1.36] Defense Motion for Qualified Protective Order
- [1.37] Order To Disclose Protected Health Information Pursuant to HIPAA
- [1.38] Authorized Relative Certification Pursuant to 735 ILCS 5/8-2001.5(d)
- Additional Resources
- [1.39] Bibliography
- [1.40] Internet Resources
- Chapter 2 — Medical Records: Tangible Evidence and Bills
- I. [2.1] Introduction
- II. Statutory Basis for Creating, Maintaining, and Obtaining Medical Records
- [2.2] Statutes Governing Creation of Medical Records
- [2.3] Obtaining Medical Records
- [2.4] Authorization
- [2.5] Subpoena
- [2.6] Notice To Produce — Supreme Court Rule 214
- [2.7] Mental Health Records
- [2.8] Health Insurance Portability and Accountability Act of 1996
- [2.9] Medical Studies Statute
- [2.10] Retention of Medical Records
- III. [2.11] Content and Organizational Structure of Medical Records
- [2.12] Physicians’ Records
- [2.13] Hospital Records
- [2.14] Admission Form
- [2.15] Consent Form(s)
- [2.16] History and Physical
- [2.17] Physicians’ Progress Notes
- [2.18] Physicians’ Orders
- [2.19] Nurses’ Notes
- [2.20] Graphic Flow Sheet
- [2.21] Consultants’ Reports
- [2.22] Laboratory/Radiology/Pathology Reports
- [2.23] Operative Reports
- [2.24] Anesthesia Records
- [2.25] Pharmacy Records
- [2.26] Discharge Summary
- [2.27] Patient Discharge Instructions
- Other Sources of Medical Records
- [2.28] Social Security/Medicare
- Employment Sources
- [2.29] Workers’ Compensation Records
- [2.30] Pension and Disability Benefit Plans
- [2.31] Attendance Records and Performance Evaluations
- [2.32] Department of Transportation Physical Exams
- [2.33] Insurance Applications and Examinations
- [2.34] Military Records
- [2.35] Financial Records
- IV. Use of Medical Records at Trial
- [2.36] Admissibility of Medical Records as Evidence
- [2.37] Admission as Business Records
- [2.38] Disclosures from Medical Records by Witnesses
- [2.39] Refreshed Recollection
- [2.40] Past Recollection Recorded
- [2.41] Use of Medical Records as Demonstrative Evidence
- [2.42] Admission of Medical Bills into Evidence
- V. [2.43] Appendix — Authorization for Release of Health Information
- Chapter 3 — Claim Evaluation
- Chapter 4 — Duty
- Chapter 5 — Expert Testimony
- I. [5.1] Introduction
- II. Expert Testimony in Medical Negligence Cases — Requirements and Admissibility
- [5.2] The Need for Expert Testimony
- [5.3] Professional Standard of Care
- [5.4] Proximate Cause
- Exceptions to Requirement of Expert Testimony
- [5.5] Institutional Standard of Care
- [5.6] Grossly Negligent Conduct or Common Treatment
- [5.7] Requirements of 735 ILCS 5/2-622
- Expert Witnesses
- [5.8] Competency and Qualification
- [5.9] Defendant as Expert Witness
- [5.10] Treating Physician as Expert Witness
- III. Foundation and Bases of Expert Testimony
- IV. [5.15] Conclusion
- Chapter 6 — Breach
- I. [6.1] Illinois Pattern Jury Instruction — Civil No. 105.01
- II. [6.2] Patients’ Right to Know Act (Physician Profile)
- III. [6.3] Res Ipsa Loquitur
- IV. [6.4] Lack of Informed Consent
- V. Negligence Theories of Liability
- Physician Liability
- [6.5] Prescription and Administration of Medication
- [6.6] Off-Label Use
- Mistreatment
- [6.7] Failure To Diagnose
- [6.8] Failure To Treat
- [6.9] Contamination
- [6.10] Nurses and Technicians
- [6.11] Pharmacy Standard of Care
- [6.12] Hospitals
- [6.13] Vicarious Liability
- [6.14] Actual Agency
- [6.15] Apparent Agency
- [6.16] Institutional Negligence
- VI. Battery
- VII. [6.20] Health Maintenance Organization Liability
- VIII. [6.21] Emergency Medical Treatment and Active Labor Act
- IX. [6.22] Wrongful Birth
- X. [6.23] Negligent Spoliation of Evidence
- XI. [6.28] Consumer Fraud and Deceptive Business Practices Act
- XII. [6.29] Pleading Concerns
- XIII. [6.36] Respondents in Discovery
- XIV. [6.41] Written Reports
- Chapter 7 — Proximate Cause
- I. [7.1] Proximate Cause Is an Element of the Plaintiff’s Prima Facie Case
- II. [7.2] Actual Cause or Cause in Fact and Legal Cause
- III. Expert Testimony To Establish Probability
- IV. [7.7] Better Result Is Not Required
- V. [7.8] The Lost-Chance Doctrine
- VI. [7.9] Risk of Future Injuries
- VII. [7.10] Sole Proximate Cause
- VIII. Jury Instruction Issues Concerning Proximate Cause
- Chapter 8 — Damages in Medical Malpractice
- I. [8.1] Introduction — Scope of Chapter
- II. [8.2] Damages Defined
- III. [8.3] Proving Damages
- IV. Recoverable Damages That Are Separately Compensable
- [8.7] Itemized Damages
- [8.8] Special Issues
- [8.9] Disability and Loss of a Normal Life
- [8.10] Emotional Distress as an Element of Damages
- [8.11] Increased Risk of Future Harm
- [8.12] Medical Expenses for Minors
- [8.13] Wrongful Death
- [8.14] Pecuniary Injuries Defined
- [8.15] Survival Action — Conscious Pain and Suffering
- [8.16] Jury Instructions
- V. Recoverable Damages That Are Not Separately Compensable
- VI. Non-Compensable Damages
- VII. Damages-Reducing Factors
- Chapter 9 — Defenses
- I. [9.1] Lack of Diligence in Serving a Defendant
- II. [9.5] The Requirement of a Healthcare Professional’s Report
- III. [9.9] The Statute of Limitations
- [9.10] Retroactive Application of Prior Amendments
- [9.11] Analysis Under 735 ILCS 5/13-212
- [9.12] The Absolute Bar of the Statute of Repose
- [9.13] Analysis Under the Two-Year Discovery Rule
- [9.14] The Relation-Back Doctrine in Medical Actions
- [9.15] The Interplay with Fraudulent Concealment
- [9.16] Application of Equitable Estoppel
- [9.17] The Continuing Course of Treatment Analysis
- [9.18] The General Tolling Provision
- [9.19] The Discovery Doctrine Applied to the Local Governmental and Governmental Employees Tort Immunity Act
- [9.20] The Discovery Doctrine Applied to Wrongful-Death Actions
- [9.21] 735 ILCS 5/13-212 Applied to Contribution Actions
- IV. [9.22] Medical Malpractice Respondents in Discovery
- V. [9.23] Venue
- VI. [9.24] Forum Non Conveniens
- VII. [9.25] Immunity Under the Good Samaritan Act
- VIII. [9.26] Comparative Negligence and Joint and Several Liability
- IX. [9.27] The Impact of the Dead-Man’s Act
- X. [9.28] The Potential Effects of Voluntary Dismissals
- XI. [9.29] The Sole Proximate Cause (Empty-Chair) Defense
- Chapter 10 — Fact Discovery
- I. Pre-Suit Discovery
- II. [10.3] Scope of Discovery
- [10.4] Statutory Authority for Discovery — Supreme Court Rule 201(a)
- [10.5] Full Disclosure Required
- [10.6] Privileges
- [10.7] Attorney-Client Privilege
- [10.8] Control-Group Test
- [10.9] Work Product
- [10.10] Insurer-Insured
- [10.11] Physician-Patient Privilege
- [10.12] Psychotherapist-Patient Privilege — The Mental Health and Developmental Disabilities Confidentiality Act
- [10.13] Consultants — Supreme Court Rule 201(b)(3)
- [10.14] Protective Orders
- [10.15] Filing Materials with the Clerk of the Circuit Court — Supreme Court Rule 201(m)
- [10.16] Privilege Logs — Supreme Court Rule 201(n)
- [10.17] Discovery Requests to Nonparties — Supreme Court Rule 201(o)
- [10.18] Subpoenas — Supreme Court Rule 204
- [10.19] Sanctions for Noncompliance — Supreme Court Rule 219(c)
- III. [10.20] Written and Oral Discovery — Supreme Court Rules 213 and 214
- [10.21] General Provisions — Supreme Court Rule 213
- [10.22] Scope of Supreme Court Rule 213 Interrogatories
- [10.23] Persons Receiving Interrogatories
- [10.24] Attorney Duty
- [10.25] Number of Interrogatories
- [10.26] Interrogatory Responses
- [10.27] Answer by Reference to Records
- [10.28] Identity and Testimony of Witnesses — Supreme Court Rule 213(f)
- [10.29] Limitation on Testimony and Freedom To Cross-Examine — Supreme Court Rule 213(g)
- [10.30] Use of Answers to Interrogatories
- [10.31] Duty To Supplement
- [10.32] Approved Forms — Supreme Court Rule 213(j)
- [10.33] Depositions
- [10.34] Discovery Depositions
- [10.35] Evidence Depositions
- Rules Governing Depositions
- [10.36] Duration
- [10.37] Termination
- [10.38] Depositions of Physicians — Supreme Court Rule 204(c)
- [10.39] Video Depositions/Remote Electronic Depositions — Supreme Court Rules 206(g), 206(h)
- [10.40] Review and Certification
- [10.41] Depositions on Written Questions
- IV. Documentary and Tangible Evidence
- V. Demonstrative Evidence
- VI. Physical and/or Mental Examinations — Supreme Court Rule 215
- VII. Medical Studies Statute
- VIII. The Petrillo Doctrine and the Hospital Licensing Act
- IX. Standard Interrogatories Under Supreme Court Rule 213(j) — Medical Malpractice
- Chapter 11 — Expert Discovery
- Chapter 12 — Trial
- I. [12.1] Scope of Chapter
- II. In Limine Matters
- III. Frye/Daubert
- IV. Developing a Theme
- V. [12.17] Jury Selection
- [12.18] General Issues in Questioning Prospective Jurors
- [12.19] Juror Profile Chart
- [12.20] Topics and Questions
- [12.21] “Tort Reform” Issues
- [12.22] Knowledge of Relevant Medical Issues
- [12.23] Experience with Defendant Hospital
- [12.24] Challenges During Jury Selection
- [12.25] Excuses for Cause
- [12.26] Peremptory Challenges
- [12.27] Final Objections to the Composition of the Jury
- [12.28] Objections During Jury Selection
- [12.29] Questions That Misstate the Law
- [12.30] Questions That May Embarrass Prospective Jurors
- [12.31] Hypothetical Questions
- [12.32] Jurors Conducting Internet Research
- VI. [12.33] Opening Statements
- [12.34] Making the Most of the Opening Statement
- [12.35] Presenting a Theory and Compelling Story
- [12.36] Demonstrative Exhibits in Opening Statements
- [12.37] Objections During Opening Statements
- [12.38] Unsupported by the Evidence
- [12.39] Statements Referring to Inadmissible Evidence
- [12.40] Argumentative
- [12.41] Personal Beliefs
- [12.42] Misstatements of Law
- [12.43] Admissions of Fact
- VII. Direct Examination
- [12.44] Essential Goals of Direct
- [12.45] Selecting Witnesses
- [12.46] Preparing Plaintiff for Direct; Checklist
- [12.47] Preparing Lay Witnesses for Direct; Checklist and Sample Questions
- [12.48] Preparing Expert Witnesses for Direct; Checklists and Sample Questions
- [12.49] Common Objections During Direct Examination of Expert Witnesses
- [12.50] Preparing Treating Physician for Direct; Checklist and Sample Questions
- [12.51] Preparing Defendant Physician for Direct; Checklist
- [12.52] Preparing Witnesses for Cross-Examination
- [12.53] Redirect Examination
- [12.54] Closed Doors
- VIII. Cross-Examination
- IX. Demonstrative Evidence
- X. [12.64] Documentary and Nontestimonial Evidence
- XI. Closing Arguments
- XII. Damages
- XIII. Jury Issues
- [12.77] Questions by Jurors
- [12.78] Instructions
- [12.79] Use of Non-Pattern Jury Instructions for Lost Chance and Future Injury
- [12.80] Use of Jury Instructions During Closing Arguments
- [12.81] Copy of Instructions to Jury
- [12.82] Special Interrogatories
- [12.83] Aggravation of Preexisting Condition
- [12.84] Missing-Witness Instruction
- [12.85] Future Pain and Suffering
- [12.86] Mitigation of Damages
- [12.87] Contributory Negligence
- Delay in Seeking Treatment
- [12.88] Before Seeking Initial Treatment
- [12.89] During Course of Medical Treatment
- [12.90] After Discharge from Medical Treatment
- [12.91] Failure To Follow Physician’s Advice
- [12.92] Failure To Report Symptoms
- [12.93] Refusal of Treatment
- [12.94] Leaving hospital prematurely
- [12.95] Refusing to return for further treatment
- [12.96] Failing to submit to corrective surgery
- [12.97] Failure To Obtain a Second Opinion
- [12.98] Consumption of Alcoholic Beverages
- [12.99] Suicide
- [12.100] Negligence Before Treatment at Issue
- [12.101] Contributory Negligence by Next of Kin in a Death Case
- [12.102] I.P.I. — Civil No. 105.01, Professional Negligence — Duty
- [12.103] Former I.P.I. — Civil No. 105.02, Duty of Specialist — Professional Negligence
- [12.104] Verdict Forms
- Jury Deliberation Issues
- [12.105] Deadlocked Jury
- [12.106] Requests for Exhibits During Deliberations
- [12.107] Juror Research
- XIV. [12.108] Conclusion
- XV. Appendix — Motions, Jury Instructions, and Closings
- [12.109] Example of Plaintiff’s Motions in Limine
- [12.110] Example of Defendant’s Motion in Limine
- [12.111] Example of Motion in Limine Order
- [12.112] Example of Plaintiff’s Motion in Limine Regarding Specific Syndrome
- Plaintiff’s Jury Instructions
- [12.113] Plaintiff’s Instruction No. 1, I.P.I. — Civil No. 1.01, Preliminary Cautionary Instructions
- [12.114] Plaintiff’s Instruction No. 2, I.P.I. — Civil No. 2.01, Evaluation of Deposition or Prior Testimony
- [12.115] Plaintiff’s Instruction No. 3, I.P.I. — Civil No. 3.02, Witness Who Has Been Interviewed by Attorney
- [12.116] Plaintiff’s Instruction No. 4, I.P.I. — Civil No. 3.04, Circumstantial Evidence
- [12.117] Plaintiff’s Instruction No. 5, I.P.I. — Civil No. 3.08, Opinion Testimony
- [12.118] Plaintiff’s Instruction No. 6, I.P.I. — Civil No. 15.01, Proximate Cause — Definition
- [12.119] Plaintiff’s Instruction No. 7, I.P.I. — Civil No. 20.01, Issues Made by the Pleadings — Negligence — One or More Defendants
- [12.120] Plaintiff’s Instruction No. 8, I.P.I. — Civil No. 21.01, Meaning of Burden of Proof
- [12.121] Plaintiff’s Instruction No. 9, I.P.I. — Civil No. 21.02, Burden of Proof on the Issues — Negligence — One Plaintiff and One Defendant — No Contributory Negligence
- [12.122] Plaintiff’s Instruction No. 10, I.P.I. — Civil No. 30.01, Measure of Damages — Personal and Property
- [12.123] Plaintiff’s Instruction No. 11, I.P.I. — Civil No. 30.21, Measure of Damages — Personal Injury — Aggravation of Pre-Existing Condition — No Limitations
- [12.124] Plaintiff’s Instruction No. 12, I.P.I. — Civil No. 34.01, Damages Arising in the Future — Extent and Amount
- [12.125] Plaintiff’s Instruction No. 13, I.P.I. — Civil No. 34.04, Damages Arising in the Future — Mortality Tables as Evidence of Damages — Injury Case
- [12.126] Plaintiff’s Instruction No. 14, I.P.I. — Civil No. B45.01, Instruction on Use of Verdict Forms — Negligence Only — Single Plaintiff and Defendant
- [12.127] Plaintiff’s Instruction No. 15, I.P.I. — Civil No. B45.01.A, Verdict Form A — Single Plaintiff and Defendant — No Contributory Negligence Pleaded (Modified)
- [12.128] Plaintiff’s Instruction No. 16, I.P.I. — Civil No. 50.01, Both Principal and Agent Sued — No Issue as to Agency
- [12.129] Plaintiff’s Instruction No. 17, I.P.I. — Civil No. 105.01, Professional Negligence — Duty
- Defendant’s Jury Instructions
- [12.130] Defendant’s Instruction No. 1, I.P.I. — Civil No. 12.05, Negligence — Intervention of Outside Agency
- [12.131] Defendant’s Instruction No. 2, I.P.I. — Civil No. 36.01, In Absence of Liability — No Occasion To Consider Damages
- [12.132] Defendant’s Instruction No. 3, I.P.I. — Civil No. B45.01.C, Verdict Form C — Single Plaintiff and Defendant — Contributory Negligence — More Than 50%
- [12.133] Defendant’s Instruction No. 4, Non-I.P.I.
- [12.134] Defendant’s Instruction No. 5, I.P.I. — Civil No. 20.01, Issues Made by the Pleadings — Negligence — One or More Defendant’s
- [12.135] Example of Plaintiff’s Closing
- [12.136] Example of Defendant’s Closing
- [12.137] Example of Plaintiff’s Rebuttal
- Chapter 13 — Preserving the Record, Posttrial Motions, and Appeals
- I. Making a Record
- II. [13.13] Posttrial Motions
- [13.14] Necessity of a Posttrial Motion
- Types of Motions
- [13.15] Motion for Judgment Notwithstanding the Verdict
- [13.16] Motion for New Trial on All Issues
- [13.17] Motion for New Trial on Damages or Liability Only
- [13.18] Motion for Remittitur/Additur
- [13.19] Motion for Reduction Under 735 ILCS 5/2-1205
- [13.20] Detail Required
- [13.21] Page Length
- [13.22] Supporting Brief
- [13.23] Adding to the Record
- [13.24] Extensions of Time
- [13.25] Conditional Rulings
- III. [13.26] Notice of Appeal
- IV. [13.34] Staying Execution of Judgment
- V. [13.35] Ordering and Filing the Record
- VI. Special Appeal Issues in Medical Negligence Cases
- Chapter 14 — Liens
- I. [14.1] Introduction
- II. [14.2] Healthcare Provider Liens
- [14.3] Health Care Services Lien Act
- [14.4] Healthcare Professionals and Providers
- [14.5] Lien Created Under the Health Care Services Lien Act
- [14.6] Caselaw Construing Heathcare Provider Liens
- Liens on Medical Expenses of Minors
- [14.7] Health Care Services Lien Act
- [14.8] Insurance Subrogation
- [14.9] Common Fund Doctrine
- III. Medicare Liens
- IV. ERISA Liens
- V. Workers’ Compensation Liens
- VI. [14.26] Illinois Department of Healthcare and Family Services Liens
- VII. [14.35] Attorneys’ Liens
- VIII. Miscellaneous
- IX. [14.39] Conclusion
- Chapter 15 — Ancillary Concerns
- I. [15.1] Introduction
- II. [15.2] Guardianship
- [15.3] Appointment of Guardian Prior to Filing a Lawsuit
- [15.4] When Appointment of Guardian Is Unnecessary
- [15.5] Guardianship of an Adult with a Disability
- [15.6] Venue
- [15.7] Who May Serve as Guardian
- [15.8] Type of Guardianship
- [15.9] Notice of Rights of Respondent
- [15.10] Physician’s Report
- [15.11] Checklist of Documents To Establish an Adult Guardianship
- [15.12] Duties of a Guardian
- [15.13] Annual Account
- [15.14] Guardianship of a Minor
- [15.15] Venue
- [15.16] Who May Serve as Guardian
- [15.17] Appearance and Consent
- [15.18] Oath and Bond
- [15.19] Checklist of Documents To Establish a Minor Guardianship
- [15.20] Duties of Guardian
- [15.21] Guardianship After Majority
- [15.22] Inventory and Accounts
- III. Wrongful Death/Survival
- IV. [15.27] Special-Needs Trusts
- V. [15.32] Structured Settlements
- VI. Medicare Set-Aside Arrangements
- VII. [15.43] Minors’ Estates
- VIII. [15.47] Divorce and Personal Injury Actions
- IX. Bankruptcy
- [15.52] Plaintiff in Bankruptcy
- [15.53] Trustee in Bankruptcy Authority
- [15.54] Defendant in Bankruptcy
- [15.55] Notice of Claim
- [15.56] Insurance Coverage as an Asset of the Estate
- [15.57] Bankruptcy Stay of Proceedings
- Defendant’s Insurer’s Insolvency
- [15.58] Liquidation
- [15.59] Illinois Insurance Guaranty Fund
- [15.60] Stay of Proceedings
- [15.61] Plaintiff’s Options
- [15.62] Requirements of the Illinois Insurance Guaranty Fund Statute
- X. Appendix — Sample Forms
- Chapter 16 — Legal and Financial Planning Considerations in Anticipation of a Large Financial Settlement
- I. [16.1] Introduction
- II. Financial Planning Process
- III. Financial Plan
- IV. [16.10] Settlement Options — Lump-Sum or Structured Settlement
- [16.11] Lump-Sum Settlement (Cash Settlement)
- [16.12] Structured Settlement
- [16.13] Pros and Cons of Lump-Sum vs. Structured Settlement
- [16.14] Integrating the Decision Process of a Lump-Sum vs. Structured Settlement in the Financial Plan
- [16.15] Selecting the Correct Structured Settlement Vehicle
- [16.16] Fallacy That the Disclosure of the Cost of a Structured Settlement Deprives the Beneficiary of Its Tax-Free Benefit
- [16.17] Duty of an Attorney To Advise the Client of the Possibility of Obtaining a Structured Settlement
- V. [16.18] Taxation of Litigation Payments in Medical Malpractice Cases — Tort Exclusion to Taxation
- VI. [16.19] Medicare Liens Against Recoveries in Medical Malpractice Cases
- VII. [16.23] Supplemental- or Special-Needs Trust (SNT)
- VIII. [16.24] Preservation of Medicaid Benefits
- IX. [16.25] Other Considerations: How To Select a Financial Advisor
- X. [16.26] Conclusion
- Chapter 17 — Satellite Issues Attendant to Medical Malpractice Litigation
- I. [17.1] Introduction
- II. [17.2] Insurer Bad-Faith Refusal To Settle Within Policy Limits
- [17.3] Early History of Bad Faith
- [17.4] Bad Faith Comes to Illinois
- [17.5] Statutory Preemption
- [17.6] Cramer v. Insurance Exchange Agency and the Insurer’s Duty of Good Faith
- [17.7] When the Duty Arises
- [17.8] Duty Between Insurers or with Insured
- [17.9] Bringing a Bad-Faith Action
- [17.10] The Versatile “Plaintiff” Label
- [17.11] Establishing the Elements of a Bad-Faith Claim
- [17.12] Availability of Punitive Damages in a Bad-Faith Claim
- [17.13] Defenses to a Bad-Faith Claim
- [17.14] Bona Fide Dispute as to Coverage
- [17.15] No Actual Opportunity To Settle Within Policy Limits
- [17.16] Comparative Bad Faith
- III. [17.17] Monitoring Malpractice Litigation
- IV. Federal Reporting Requirements — The Health Care Quality Improvement Act of 1986 and the Healthcare Integrity and Protection Data Bank
- [17.18] The History of the HCQIA
- [17.19] The HCQIA’s Legislative Intent
- [17.20] The HCQIA’s Basic Provisions
- [17.21] Reporting and Querying Obligations Under the HCQIA
- [17.22] Basic Reporting Requirements
- [17.23] Required Reports on Medical Malpractice Payments and the Dispute Process
- [17.24] Individual Exception to Malpractice Reporting
- [17.25] Immunity for Disciplinary and Reporting Entities and No Private Cause of Action for Physicians
- [17.26] Further Protection for Peer Review Activities
- V. [17.27] Illinois State Reporting Requirements — The Medical Practice Act of 1987
- VI. [17.31] Actions Against Expert Witnesses for Frivolous or Negligent Testimony
- [17.32] Witness Immunity Doctrine and the Illinois Courts
- [17.33] Policy Goals
- [17.34] Absolute Privilege for Suits Brought by Party Opponent
- [17.35] Absolute Privilege for Suits Brought by Party That Retained Expert
- [17.36] Actions by Professional Organizations Against Negligent Expert Witnesses
- [17.37] Legal Challenges to Disciplinary Actions by Professional Organizations
- [17.38] Peer Review by a Professional Organization of Expert Medical Testimony
- [17.39] Illinois’ Medical Studies Statute and Expert Medical Testimony
- [17.40] Other Jurisdictions
- [17.41] Duty to Party Retaining Expert
- [17.42] Duty to Party Opponent
- [17.43] Nonjudicial Disciplinary Proceedings
- VII. [17.44] Disclosure of Medical Records Under the Health Insurance Portability and Accountability Act of 1996
- [17.45] HIPAA Privacy Rule
- [17.46] Disclosure of Protected Health Information
- [17.47] Written Patient Authorization and Business Associate Responsibilities
- [17.48] Subpoena or Discovery Request
- [17.49] Relationship Between HIPAA Requirements and 735 ILCS 5/8-802
- [17.50] Disclosure of Medical Information in Disciplinary Actions by Professional Organizations Against Expert Witnesses
- VIII. [17.51] Medical Malpractice Legislation
- IX. [17.57] The Patient Protection and Affordable Care Act
- X. [17.58] Conclusion
- Chapter 18 — Nursing Home Litigation
- I. The Nursing Home Care Act
- II. Causes of Action Under the Nursing Home Care Act
- III. Damages Under the Nursing Home Care Act
- IV. [18.11] Standard of Care Issues in Nursing Home Litigation
- V. [18.12] Illinois Department of Public Health Surveys
- VI. [18.13] Long-term Care Review and Quality Assessment and Assurance Protection Act
- VII. [18.14] Nursing Home Care Act Jury Instructions
- VIII. Enforceability of Binding Arbitration Agreements
- IX. False Claims Act Liability
- X. Cameras in Nursing Homes — the Authorized Electronic Monitoring in Long-Term Care Facilities Act
- [18.20] Background and Purpose
- [18.21] Formal Consent Requirements
- [18.22] Roommate Consent Requirements
- [18.23] Miscellaneous Issues with Consent
- [18.24] Costs and Installation of the Electronic Monitoring Device
- [18.25] Notice to Visitors of Electronic Monitoring Devices
- [18.26] Access to Electronic Monitoring Recordings and Use in Litigation
- [18.27] Impact on the Nursing Home Care Act
- XI. Appendix — Sample Forms
- Chapter 19 — Mediation in Medical Malpractice Cases
- I. Introduction
- II. The Rush University Medical Center Program — A Model for Mediation
- [19.3] Introduction
- [19.4] Goals of the Program — Were the Objectives Met?
- Role of the Hospital’s Representative in the Process
- [19.5] The Decision To Mediate a Case
- [19.6] Selecting the Mediators
- [19.7] Adopting a Mediation Strategy
- [19.8] Bringing Closure to the Dispute
- [19.9] Recommendations Based on the Rush Model
- III. The Mediation Process
- [19.10] When To Consider Mediation
- [19.11] Anticipating an Outcome
- [19.12] Preparing a Client To Make a Decision
- The Conduct of the Process
- [19.13] Whom To Select as Mediators
- [19.14] The Mediation Agreement
- [19.15] The Setting of the Conference
- [19.16] The Use and Value of the Preconference Submission
- How the Conference Is Conducted
- [19.17] Introduction by the Mediators
- [19.18] Opening Statements
- [19.19] Breakout Sessions
- [19.20] Bridging the Gap — The Demand and Offer
- [19.21] Closure
- [19.22] The Role of Mediators
- [19.23] Preliminary Defense-Only Mediation Cases
- [19.24] Recommendations to Advocates in the Healthcare Field
- IV. [19.25] The Uniform Mediation Act
- V. [19.26] Mediator’s Ethical Obligation
- VI. [19.27] Conclusion
- VII. [19.28] Sample Mediation Agreement
- Chapter 20 — Reporting Requirements in Settlements
- I. [20.1] Introduction
- II. [20.2] Reporting to the National Practitioner Data Bank
- III. [20.3] Reporting to the Illinois Department of Financial and Professional Regulation
- IV. [20.4] Reporting to Hospitals
- V. [20.5] Reporting to Healthcare Entities
- VI. [20.6] Reporting to Professional Insurers
- VII. [20.7] Reporting in the Media
- VIII. [20.8] Conclusion
- Ian R. Alexander
Ian R. Alexander
Ian R. Alexander is the Managing Partner at Goldberg & Goldberg in Chicago, where he concentrates his practice in the representation of plaintiffs in medical malpractice. He is a member of the Illinois Trial Lawyers Association and the American Association for Justice. Alexander received his BA from the University of Illinois and his JD from Tulane Law School.
- Gary P. Annes
Gary P. Annes
Gary P. Annes is a Founder and Partner with Abels & Annes, P.C., in Chicago, where he concentrates his practice in personal injury and medical malpractice. He has frequently written and spoken on issues related to medical malpractice and litigation in general. He is a member of the Illinois Trial Lawyers Association, the American Association for Justice (formerly ATLA), the Public Justice Foundation, the State Bar of Arizona, and the Illinois State and Chicago Bar Associations. Mr. Annes is licensed in Illinois and Arizona and maintains offices in both Chicago and Phoenix. Mr. Annes received his B.A. from the University of Illinois and his J.D. from Loyola University Chicago School of Law.
- Joseph W. Balesteri
Joseph W. Balesteri
Joseph W. Balesteri is a Partner at Power Rogers, LLP, in Chicago, where he focuses his practice on representing plaintiffs in medical malpractice cases. He has been recognized as one of the Best Lawyers in America (22d ed. 2022), the Top Ten Leading Lawyers for Medical Negligence — Plaintiff, and the 2022 Lawdragon 500 Leading Consumer Lawyers. Mr. Balesteri received his B.S. from Indiana University and his J.D. from the DePaul University College of Law.
- Courtney M. Beemer
Courtney M. Beemer
Courtney M. Beemer is Of Counsel to Wise Morrissey Kaveny LLC in Chicago, where she concentrates her practice in personal injury and medical malpractice. She is a member of the Chicago and Federal Bar Associations. Ms. Beemer received her undergraduate degree from Georgetown University Edmund A. Walsh School of Foreign Service and her J.D. from the University of Chicago Law School.
- Douglas Belofsky
Douglas Belofsky
Douglas Belofsky is the owner of Law Offices of Douglas Belofsky, P.C., in Northbrook, where he concentrates his practice in the areas complex commercial litigation, commercial law matters, probate, estate planning, and arbitration. He is a member of the American Health Law Association, the Illinois Association of Healthcare Attorneys, and the Greater Shore Estate and Financial Planning Council. Mr. Belofsky received his B.A. from the University of Chicago and his J.D. from Washington University School of Law, where he was honored as a member of the Order of the Coif.
- Christian D. Biswell
Christian D. Biswell
Christian D. Biswell is a Shareholder and President of Drake, Narup & Mead, P.C., in Springfield, where he concentrates in the areas of civil litigation, insurance and medical malpractice defense, contracts, civil rights, and subrogation. Mr. Biswell received his B.A., M.A., and J.D. from Southern Illinois University.
- Amelia S. Buragas
Amelia S. Buragas
Amelia S. Buragas is an assistant professor and director of legal studies at Illinois State University. She received her BS from the University of Illinois Urbana-Champaign, her MA from the University of Wisconsin–Madison, and her JD from the University of Wisconsin Law School.
- Roger R. Clayton
Roger R. Clayton
Roger R. Clayton is a Shareholder of Heyl, Royster, Voelker & Allen, P.C., in Peoria, where he focuses his practice on healthcare. He is Past President of the Illinois Association of Healthcare Attorneys, Past President of the Illinois Society of Healthcare Risk Management, and the author of the healthcare column in the Illinois Defense Counsel Quarterly. Mr. Clayton received his B.A. from Bradley University and his J.D. from Southern Illinois University School of Law.
- Richard H. Donohue
Richard H. Donohue
Richard H. Donohue is a Partner at Donohue Brown Mathewson & Smyth LLC in Chicago, where he concentrates his practice in the defense of professional liability cases and in mediation and arbitration. He is a Fellow of both the American College of Trial Lawyers and the International Society of Barristers and is a member of the Defense Research Institute. Mr. Donohue received his A.B. cum laude from Dartmouth College and his J.D. cum laude from Northwestern University School of Law.
- Cole D. Garrett
Cole D. Garrett
Cole D. Garrett is Deputy General Counsel for the Illinois Workers’ Compensation Commission in Chicago. Mr. Garrett received his J.D. at Chicago-Kent College of Law.
- Geoffrey L. Gifford
Geoffrey L. Gifford
Geoffrey L. Gifford is a Partner and Founder of Pavalon & Gifford in Chicago. His practice is focused on medical negligence, products liability, and general negligence cases. He is Past President of the Illinois Trial Lawyers Association; a Fellow of the American College of Trial Lawyers and of the International Society of Barristers; a Life Fellow of the American Bar Foundation; and a member of the Missouri, Michigan, and Illinois Bar Associations as well as the Federal Trial Bar. He is a former member of the IICLE Board of Directors and is listed in THE BEST LAWYERS IN AMERICA. He also served as an Adjunct Professor at IIT Chicago-Kent College of Law. Mr. Gifford received his B.A. from the University of Missouri and his J.D. from the University of Michigan Law School.
- Jeffrey M. Goldberg
Jeffrey M. Goldberg
Jeffrey M. Goldberg is the Founder of Jeffrey M. Goldberg Law Offices in Chicago, where he focuses his practice on medical malpractice and personal injury cases. He is a member of the American Association for Justice Birth Trauma Litigation Group, a Past Chair of the Illinois Trial Lawyers Association Medical Malpractice Committee, and a Past President of the Trial Lawyers for Public Justice. Goldberg received his BS from Bradley University and his JD from the University of Illinois Chicago School of Law.
- Hugh C. Griffin
Hugh C. Griffin
Hugh C. Griffin is Of Counsel to Hall Prangle LLC in Chicago. He is a member of the American Academy of Appellate Lawyers, the Illinois Appellate Lawyers Association, and the Illinois State Bar Association. Griffin received his BA from Loyola University Chicago and his JD from Notre Dame Law School.
- Jeffrey R. Hanes
Jeffrey R. Hanes
Jeffrey R. Hanes is an associate at Barker & Castro, LLC, in Chicago, where he focuses his practice on medical malpractice defense. He has been recognized by Illinois Rising Stars (Super Lawyers) and is a member of the Chicagoland Healthcare Risk Management Society (CHRMS). Hanes received his BS from the University of Wisconsin–Madison and his JD cum laude from the Northern Illinois University College of Law.
- Mark D. Hansen
Mark D. Hansen
Mark D. Hansen is a Shareholder at Heyl, Royster, Voelker & Allen, P.C., in Peoria, where he concentrates on commercial litigation, professional liability, and other areas of civil litigation. He is a member of the International Association of Defense Counsel, the Litigation Counsel of America, and the Society of Trial Lawyers. Mr. Hansen received his B.S. cum laude from Northern Illinois University and his J.D. cum laude from the University of Illinois College of Law.
- Keith A. Hebeisen
Keith A. Hebeisen
Keith A. Hebeisen is a Partner at Clifford Law Offices in Chicago, where he concentrates his practice in medical negligence. He is a member and Past President of the Illinois Trial Lawyers Association, a member of the International Academy of Trial Lawyers, and a member of the American College of Trial Lawyers. Mr. Hebeisen received his B.A. from the University of Illinois Urbana-Champaign and his J.D. with honors from the DePaul University College of Law.
- Michael J. Hennig
Michael J. Hennig
Michael J. Hennig is a Partner at Cassiday Schade LLP in Chicago, where he focuses his practice on medical malpractice defense and is Cochair of the Medical Malpractice Department. He is rated AV Preeminent by Martindale-Hubbell, the highest possible rating. He has been selected as a Leading Lawyer by the Law Bulletin Publishing Company in the area of Medical Malpractice Defense. Mr. Hennig received his J.D. with high distinction from The John Marshall Law School, where he received the Order of John Marshall and was a member of The John Marshall Law Review.
- Monica J. Henning
Monica J. Henning
Monica J. Henning is an associate at Smith Blake Hill LLC in Chicago, where she concentrates her practice in medical malpractice defense. She is a member of the Chicago, American, and Illinois State Bar Associations. Ms. Henning received her B.A. with distinction from McGill University and a dual J.D. cum laude from Michigan State University and the University of Ottawa.
- Richard J. Hickey
Richard J. Hickey
Richard J. Hickey is a Managing Partner at Hickey & Associates, LLC, in Chicago, where he concentrates in medical malpractice defense, aviation, and commercial litigation. He is a recipient of the Law Bulletin Media Lifetime Achievement Award and Outstanding Defense Verdict, is President of the Society of Trial Lawyers, has been a Client Counseling Competition Representative at Regional, and has been recognized for Outstanding Excellence in Teaching (1978 – 1979, 1979 – 1980). Hickey received both his BA summa cum laude and JD cum laude from the University of Illinois.
- Thomas R. Hill
Thomas R. Hill
Thomas R. Hill is a Partner at Smith Blake Hill LLC in Chicago, where he focuses his practice on defense of healthcare institutions and providers. He received his J.D. from the Loyola University Chicago School of Law.
- Richard K. Hunsaker
Richard K. Hunsaker
Richard K. Hunsaker is a Shareholder of Heyl, Royster, Voelker & Allen, P.C., in St. Louis, where he concentrates his practice in medical malpractice. He is a member of the Illinois Association of Defense Trail Counsel, the Missouri Organization of Defense Lawyers, and the American Board of Trial Advocates. Hunsaker received both his BA and his MA from the University of Illinois and his JD from the Washington University School of Law.
- John M. Lagattuta
John M. Lagattuta
John M. Lagattuta is HR/Labor Relations Director of the Illinois Workers’ Compensation Commission in Chicago. Mr. Laguttuta received both his B.S. and J.D. from DePaul University.
- Steven B. Levy
Steven B. Levy
Steven B. Levy is an attorney in Naperville, focusing his practice on plaintiff’s medical malpractice, personal injury, and wrongful death. He is a past member of the Illinois Supreme Court Rules and Professional Responsibility Committees and has authored Chapter 6 of this handbook since 2006. Levy received his BA from the University of Illinois and his JD from the Chicago-Kent College of Law.
- Edward (Ted) McNabola
Edward (Ted) McNabola
Edward (Ted) McNabola is a Partner at McNabola & Associates, LLC, in Chicago, where he concentrates his practice in personal injury. He is a member of the Society of Trial Lawyers, the Board of Governors of Loyola University Chicago School of Law, and the Board of Directors of the 100 Club Chicago Charity. He has also taught trial techniques at Northwestern University School of Law. Mr. McNabola received his Master’s degree from Loyola University Chicago and his J.D. from Loyola University Chicago School of Law.
- Francis (Frank) P. Morrissey
Francis (Frank) P. Morrissey
Francis (Frank) P. Morrissey is the Founder of Morrissey Legal Group, LLC, in Chicago, where he focuses his practice on medical malpractice and catastrophic injury. He is a Past President of the Illinois Society of Trial Lawyers, a Past President of the Celtic Lawyers Society, and a member of the Board of Managers of Illinois Trial Lawyers Association. Morrissey received his BA from College of the Holy Cross in Massachusetts and his JD from the Loyola University Chicago Schoof of Law, where he was a member of the Law Review.
- Terrance M. Nofsinger
Terrance M. Nofsinger
Terrance M. Nofsinger is a Partner at McNabola & Associates, LLC, in Chicago, where he focuses his practice on plaintiff personal injury and wrongful death. He is a member of the American Association for Justice, the Illinois Trial Lawyers Association, and the Illinois Bar Association. Mr. Nofsinger received his B.F.A. from Bradley University and his J.D. from Creighton University School of Law.
- Robert L. Nora
Robert L. Nora
Robert L. Nora is Managing Partner of Nora & Partners, LLP, in Chicago, where he concentrates his practice in medical malpractice defense. He has been recognized by Illinois Super Lawyers and Illinois Leading Lawyers (both 2005 – present) and is a member of the Illinois Society of Trial Lawyers. Mr. Nora received his B.A. with honors from Northwestern University and his J.D. from DePaul University College of Law.
- Zachary R. Pancoast
Zachary R. Pancoast
Zachary R. Pancoast is a Partner at Crompton Pancoast Law in St. Louis, Missouri, where he focuses his practice on plaintiff’s personal injury, medical malpractice, and mass torts. He is a member of the Illinois Trial Lawyers Association and the Missouri Association of Trial Attorneys. Pancoast received his BA from DePauw University and his JD from the Saint Louis University School of Law.
- Robert B. Patterson
Robert B. Patterson
Robert B. Patterson is President of the Law Offices of Robert B. Patterson in Chicago, where he focuses his practice on plaintiffs’ personal injury litigation. He is a member of the Chicago and Illinois State Bar Associations, the Association of Trial Lawyers of America, the Illinois Trial Lawyers Association, Omicron Delta Kappa (leadership), and Lawyers of Distinction. Patterson received his BA with distinction, Phi Beta Kappa, from Penn State University and his JD cum laude from the Northwestern University School of Law.
- Emily Perkins
Emily Perkins
Emily Perkins is an associate at Heyl, Royster, Voelker & Allen, in Peoria, where she concentrates on employment/labor law, governmental law, Section 1983 civil rights litigation, and medical malpractice. Ms. Perkins was named to the Law Bulletin Publishing Company's list of Illinois Emerging Lawyers (2018) and has won the Winter National Law Review 2014 Writing Competition. She is received her J.D. from Northern Illinois University College of Law, her M.B.A. from Bradley University, and her B.S. from Illinois State University.
- Matthew A. Reddy
Matthew A. Reddy
Matthew A. Reddy is an associate at Pretzel & Stouffer, Chartered, in Chicago, where he focuses his practice on medical malpractice. He has been selected an Illinois Super Lawyers Rising Star. Mr. Reddy received his undergraduate degree from the University of Michigan and his J.D. from Boston University School of Law.
- Tyler Robinson
Tyler Robinson
Tyler Robinson is a Partner at Heyl, Royster, Voelker & Allen, P.C., in Springfield, where he focuses his practice on medical malpractice defense, long-term care/nursing homes, qui tam (whistleblower), and healthcare. He was named an Illinois Super Lawyers Rising Star in 2017 and 2018 and an Illinois Emerging Lawyer by the Law Bulletin Publishing Company in 2018. He is a member of the Management and Professional Liability Community and Committee Member of the Medical/Healthcare (Medical Malpractice) Group in the Claims and Litigation Management Alliance. Mr. Robinson received his J.D. from Southern Illinois University School of Law.
- Ila S. Rothschild
Ila S. Rothschild
Ila S. Rothschild is in private practice in Highland Park, where she focuses her practice on healthcare law and alternative dispute resolution. She is a member of the American Health Lawyers Association and American Society for Health Care Risk Management, the Chicagoland Healthcare Risk Management Society, and the Illinois State Bar Association. Ms. Rothschild received her B.A. with honors from the University of Wisconsin, her M.A. from the University of Chicago, and her J.D. from Chicago-Kent College of Law.
- Susan J. Schwartz
Susan J. Schwartz
Susan J. Schwartz is a Partner at Corboy & Demetrio, P.C., in Chicago, where she is a trial lawyer focusing on medical negligence cases on behalf of patients and their families. She serves on the Advisory Board for Coordinated Advice and Referral Program for Legal Services and previously served as an officer and on the Board of Directors for the Women’s Bar Foundation and the Board of Governors for Loyola University Chicago School of Law. She is a member of the American Board of Trial Advocates and has served on the Board of Managers for the Illinois Trial Lawyers Association. Ms. Schwartz received her B.S.F.S. from Georgetown University and her J.D. from Loyola University Chicago School of Law.
- Allen N. Schwartz
Allen N. Schwartz
Allen N. Schwartzis a Partner at Kralovec, Jambois & Schwartz in Chicago, where he concentrates his practice in medical malpractice and personal injury. He is a member of the American College of Trial Lawyers and the American Board of Trial Advocates and is a Fellow of the American Bar Association. Mr. Schwartz received his B.A. from the University of Illinois and his J.D. with honors from the Chicago-Kent College of Law.
- Thomas G. Siracusa
Thomas G. Siracusa
Thomas G. Siracusa is a Partner at Power Rogers, LLP, in Chicago, where he focuses his practice in medical negligence and product liability. He is a member of the Illinois Trial Lawyers Board of Managers, the American Board of Trial Advocates, and the Society of Trial Lawyers. Siracusa received his undergraduate degree from Loyola University and his JD with honors from the Chicago-Kent College of Law.
- Nancy M. Spain
Nancy M. Spain
Nancy M. Spain is a Partner at Hahn Loeser & Parks LLP, in Chicago, and concentrates her practice on estate planning and settlement and trusts. Spain is a Chicago Volunteer Legal Services pro bono legal services volunteer, a charter member of the Academy of Special Needs Planners, and a member of the Illinois Chapter of the National Association of Elder Law Attorneys. She received her B.A. from Connecticut College and her J.D. from Case Western Reserve University School of Law.
- Michael T. Trucco
Michael T. Trucco
Michael T. Trucco is a Partner at Stamos & Trucco LLP in Chicago, where he concentrates his practice in civil litigation defense, professional liability defense, and healthcare law. He is a member of the Society of Trial Lawyers and the American Board of Trial Advocates. He has also been named an Illinois Super Lawyer in Civil Litigation Defense. Trucco received his BS from Bradley University and his JD from the DePaul University College of Law, where he was Editor-in-Chief of the DePaul Law Review.
- Kevin J. Vedrine
Kevin J. Vedrine
Kevin J. Vedrine is a Founding Partner at Cunningham Meyer & Vedrine, P.C., in Warrenville, where he focuses his practice on insurance defense in areas of medical malpractice. He is a member of the Illinois State and DuPage County Bar Associations. Vedrine received his BA from the University of Illinois and his JD from the DePaul University College of Law.
- Miles J. Zaremski
Miles J. Zaremski
Miles J. Zaremski is the Founding Partner of the Zaremski Law Group in Highland Park, where he concentrates his practice in healthcare, professional medical liability, alternative dispute resolution, and appeals. He is a member of the Illinois State Bar Association and Who’s Who in American Law and has been named an Illinois Leading Lawyer and an Illinois Super Lawyer in healthcare. Mr. Zaremski received his B.S. from the University of Illinois and his J.D. from Case Western Reserve University School of Law.
Medical Malpractice (ARCHIVED 2018 EDITION)
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