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Chapter 1 — Initial Client Contact - Chapter Summary
- I. [1.1] Introduction — Scope of Chapter
-
II. [1.2] Preinterview Considerations for Plaintiff - III. [1.8] Initial Case Assessment — Defense Considerations
- IV. Client Contact
- [1.9] Initial 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
- Additional Resources
- [1.39] Bibliography
- [1.40] Internet Resources
- Chapter 2 — Medical Records: Tangible Evidence and Bills
- Chapter Summary
- 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
- The Audit Trail
- [2.36] What Is the Audit Trail?
- [2.37] Discovery and Admissibility of the Audit Trail
- IV. Use of Medical Records at Trial
- [2.38] Admissibility of Medical Records as Evidence
- [2.39] Admission as Business Records
- [2.40] Disclosures from Medical Records by Witnesses
- [2.41] Refreshed Recollection
- [2.42] Past Recollection Recorded
- [2.43] Use of Medical Records as Demonstrative Evidence
- [2.44] Admission of Medical Bills into Evidence
- Chapter 3 — Claim Evaluation
- Chapter 4 — Duty
- Chapter 5 — Expert Testimony
- Chapter Summary
- 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 Physicians as Expert Witnesses
- III. Foundation and Bases of Expert Testimony
- IV. [5.16] Conclusion
- Chapter 6 — Breach
- Chapter Summary
- 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. [6.35] Respondents in Discovery
- XIV. [6.39] Written Reports
- Chapter 7 — Proximate Cause
- Chapter Summary
- 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
- Chapter Summary
- 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
- [8.17] Aggravation of Preexisting Ailment, Condition, or Injury
- [8.18] Not a Separate Element of Damages
- [8.19] Jury Instruction
- Subsequent Injury by Healthcare Providers
- [8.20] In General
- [8.21] Jury Instruction
- [8.22] Lost-Chance Doctrine or Loss-of-Chance Doctrine
- [8.23] No Quantitative Requirement
- [8.24] No Jury Instruction
- VI. Noncompensable Damages
- VII. Damages-Reducing Factors
- Chapter 9 — Defenses
- Chapter Summary
- I. Procedural Defenses — Service and Filing
- [9.1] Supreme Court Rule 103(b) — Failure To Exercise Reasonable Diligence in Service of Process
- [9.2] Definition of “Reasonable Diligence” and Factors Considered
- [9.3] Caselaw Examples of Delays Leading to Dismissal
- [9.4] Special Circumstances Exception
- [9.5] Waiver of Supreme Court Rule 103(b) Defense
- [9.6] Interaction with Voluntary Dismissal and Refiling
- II. Procedural Defenses — Healthcare Professional Reports
- III. Limitations and Timing Defenses
- [9.12] Statute of Limitations
- [9.13] Statute of Repose
- [9.14] The Discovery Rule
- [9.15] Statute of Limitation Accrual Dates and Special Rules for Minors and Disabled Persons
- [9.16] Traumatic vs. Nontraumatic Injury in Statute of Limitations Analysis
- [9.17] Wrongful Death and the Statute of Limitations
- [9.18] Relation-Back Doctrine, Amendments, and the Statute of Limitations in Medical Malpractice Cases
- [9.19] Fraudulent Concealment
- [9.20] Equitable Estoppel and Tolling Provisions
- [9.21] Continuing Course of Treatment Doctrine
- [9.22] 735 ILCS 5/13-212 Applied to Contribution Actions
- [9.23] Medical Malpractice Respondents in Discovery
- IV. Venue and Forum Defenses
- V. Immunity Defenses
- VI. Substantive Liability Defenses
- VII. [9.32] Evidentiary and Procedural Shields and the Dead-Man’s Act
- VIII. [9.33] Case Management and the Effect of Plaintiff’s Voluntary Dismissal on Pending Cases
- Chapter 10 — Fact Discovery
- Chapter Summary
- 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] Therapist-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
- Chapter 11 — Expert Discovery
- Chapter Summary
- I. [11.1] Introduction
- II. Independent and Controlled Expert Witnesses
- III. [11.4] Method of Disclosure
- IV. [11.5] Proper Disclosure
- V. [11.6] The Disclosure of a New Opinion or a New Basis for Opinion at Deposition
- VI. Admission of Expert Opinion Testimony in Medical Malpractice Cases; Application of Frye v. United States
- VII. The Federal Evidentiary Standard for Medical Testimony: Daubert v. Merrell Dow Pharmaceuticals, Inc., and Federal Rule of Evidence 702
- VIII. [11.12] Medical Billing Expert Testimony
- IX. Appendix — Sample Forms
- Chapter 12 — Trial
- Chapter Summary
- I. [12.1] Scope of Chapter
- II. Frye/Daubert
- III. [12.8] Opening Statements
- IV. Direct Examination
- [12.9] Expert Witnesses
- [12.10] Choosing Expert Witnesses
- [12.11] Preparing and Presenting Expert Witnesses for Direct Examination
- [12.12] Common Objections During Direct Examination of Expert Witnesses
- [12.13] Supreme Court Rule 213 Disclosure Objections
- [12.14] Matters for the Jury, Not for Objection
- [12.15] Cumulative Testimony Objections
- [12.16] Foundational Requirement Objections
- [12.17] Credibility Attacks
- [12.18] Preparing and Presenting Treating Physician for Direct Examination
- [12.19] Preparing and Presenting Defendant Physician for Direct Examination
- [12.20] Closed Doors
- V. [12.21] Cross-Examination
- VI. [12.24] Demonstrative Evidence
- VII. [12.25] Documentary and Nontestimonial Evidence
- VIII. [12.30] Closing Arguments
- X. Jury Issues
- [12.33] Mitigation of Damages
- [12.34] Contributory Negligence
- Delay in Seeking Treatment
- [12.35] Before Seeking Initial Treatment
- [12.36] During Course of Medical Treatment
- [12.37] After Discharge from Medical Treatment
- [12.38] Failure To Follow Physician’s Advice
- [12.39] Failure To Report Symptoms
- [12.40] Refusal of Treatment
- [12.41] Leaving hospital prematurely
- [12.42] Refusing to return for further treatment
- [12.43] Failing to submit to corrective surgery
- [12.44] Failure To Obtain a Second Opinion
- [12.45] Consumption of Alcoholic Beverages
- [12.46] Suicide
- [12.47] Negligence Before Treatment at Issue
- [12.48] Contributory Negligence by Next of Kin in a Death Case
- XI. [12.49] Conclusion
- XII. Appendix — Motions, Openings, and Closings
- [12.50] Example of Plaintiff’s Proposed Juror Questionnaire
- [12.51] Example of Plaintiff’s Motions in Limine
- [12.52] Example of Defendant’s Motion in Limine
- [12.53] Example of Motion in Limine Order
- [12.54] Example of Plaintiff’s Motion in Limine Regarding Specific Syndrome
- [12.55] Example of Plaintiff’s Opening
- [12.56] Example of Plaintiff’s Closing
- [12.57] Example of Defendant’s Closing
- [12.58] Example of Plaintiff’s Rebuttal
- Chapter 13 — Preserving the Record, Posttrial Motions, and Appeals
- Chapter Summary
- 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
- [13.26] Prejudgment Interest
- [13.27] E-Filing Issues
- [13.28] Motion for Set-Off
- III. [13.29] Notice of Appeal
- IV. [13.37] Staying Execution of Judgment
- V. [13.38] Ordering and Filing the Record
- VI. Special Appeal Issues in Medical Negligence Cases
- Chapter 14 — Liens
- Chapter Summary
- I. [14.1] Introduction
- II. [14.2] Healthcare Provider Liens
- [14.3] Lien Statutes Repealed by the 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 Healthcare 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. Employee Retirement Income Security Act of 1974 Liens
- V. Workers’ Compensation Liens
- VI. [14.26] Illinois Department of Healthcare and Family Services Liens
- VII. [14.36] Attorneys’ Liens
- VIII. Miscellaneous
- IX. [14.40] Conclusion
- Chapter 15 — Ancillary Concerns
- Chapter Summary
- 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] Documents Needed 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] Documents Needed 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
- Chapter Summary
- 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
- 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
- Chapter Summary
- 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 National Practitioner Data Bank
- [17.18] The History of the Health Care Quality Improvement Act of 1986
- [17.19] The Legislative Intent of the Health Care Quality Improvement Act of 1986
- [17.20] Basic Provisions of the Health Care Quality Improvement Act of 1986
- [17.21] Reporting and Querying Obligations Under the Health Care Quality Improvement Act of 1986
- [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] Disciplinary Actions by Professional Organizations Against 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] 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 Health Insurance Portability and Accountability Act of 1996 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 Negligence
- Chapter Summary
- 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 Peer 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] Impacts on the Nursing Home Care Act
- XI. Appendix — Sample Forms
- Chapter 19 — Mediation in Medical Malpractice Cases
- Chapter Summary
- 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 Session
- [19.24] Recommendations to Advocates in the Healthcare Field
- [19.25] Virtual vs. In-Person Mediations
- IV. [19.26] The Uniform Mediation Act
- V. [19.27] Mediator’s Ethical Obligation
- VI. [19.28] Conclusion
- VII. [19.29] Sample Mediation Agreement
- Chapter 20 — Reporting Requirements in Settlements
- Chapter Summary
- 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
- Chapter 21 — Audit Trails
- Chapter Summary
- I. [21.1] Introduction
- II. [21.2] Statutory and Regulatory Framework
- III. [21.3] Discoverability and Admissibility of Audit Trails
- IV. [21.4] Core Technology Concepts
- V. [21.5] Current Use in Litigation
- VI. [21.6] Practical Analysis
- VII. [21.7] Expert Roles and Disclosure
- VIII. [21.8] Conclusion
- List of Forms by Chapter
- 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.
- Mark R. Benfield
Mark R. Benfield
Mark R. Benfield is a Partner at Heyl, Royster, Voelker & Allen, P.C., in Champaign, where he concentrates in medical malpractice and healthcare/risk management issues and litigation. He is an active member of the Illinois State Bar Association’s Tort Law Section Counsel and serves on the University of Illinois College of Law Alumni-Student Mentoring Program. Benfield received his BS from Saint Ambrose University and his JD from the University of Illinois College of Law.
- Jessica A. Bertino
Jessica A. Bertino
Jessica A. Bertino is an associate at Hall Prangle LLC in Chicago, where she focuses her practice on medical malpractice litigation, healthcare law, behavioral healthcare, correctional healthcare, and commercial liability. She has been recognized as a Rising Star by Super Lawyers (2026) and One to Watch in America by Best Lawyers (2026), and she is a member of the Women’s Bar Association. Bertino received her JD from the DePaul University College of Law, where she was a Dean’s Merit Scholar, received a JD certificate in health law, and received the CALI Excellence for the Future Award for Bioethics and the Law.
- Timothy Bingham
Timothy Bingham
Timothy Bingham is an associate at Crick Walanka Law Group, Ltd., in Chicago, where he focuses his practice on administrative healthcare law. He is a member of the Illinois State Bar Association and the Association of Illinois Professional Licensing Lawyers. He received his bachelor’s degree from Cornell College and his JD from the DePaul University College of Law.
- LaDonna L. Boeckman
LaDonna L. Boeckman
LaDonna L. Boeckman is an attorney at HeplerBroom LLC in Chicago, where she focuses her practice on professional liability defense. She has been recognized in Best Lawyers’ list of Ones to Watch (2021 – 2025) and granted the Trial Lawyer Excellence Award for Outstanding Defense Verdict by Jury Verdict Reporter (2012). She is a member of the Defense Research Institute, the Illinois Defense Counsel, and the Chicago Healthcare Risk Management Society. Boeckman received her BA magna cum laude from Drake University and her JD with honors from the Drake University Law School.
- Suzana Broderick
Suzana Broderick
Suzana Broderick is an associate at Smith Blake Hill LLC in Chicago, where she focuses her practice on medical malpractice. She is a member of the Illinois State and Chicago Bar Associations and the American Health Lawyers Association. Broderick received her BS from the University of Illinois Chicago, her MBA from Loyola University Chicago, and her JD from the Northern Illinois University College of Law.
- Marisa A. Brunetti
Marisa A. Brunetti
Marisa A. Brunetti is an associate at Cunningham, Meyer & Vedrine, P.C., in Warrenville, where she concentrates in insurance defense in the areas of medical malpractice and complex personal injury. She is a member of the Illinois State Bar Association. Brunetti received her JD from the University of Illinois Chicago School of Law and was published in its Law Review.
- Laura L. Buecker
Laura L. Buecker
Laura L. Buecker is a senior associate at Heyl, Royster, Voelker & Allen, P.C., in Chicago, where she focuses her practice on medical malpractice. She is a member of the Chicago, Illinois State, Seventh Circuit, and Women’s Bar Associations. Buecker received her BS from the University of Illinois and her JD cum laude from the University of Illinois College of Law.
- 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.
- Chelsea L. Caldwell
Chelsea L. Caldwell
Chelsea L. Caldwell is an associate at HeplerBroom LLC in DuPage County, where she focuses her practice on medical and dental malpractice, nursing home litigation, and professional liability. She has been recognized as one of the Top 40 Under 40 by National Trial Lawyers (2020) and a Rising Star by Illinois Super Lawyers (2021 – 2022). Caldwell received her BA from the University of Illinois and her JD cum laude from the Valparaiso University School of Law.
- Brion W. Doherty
Brion W. Doherty
Brion W. Doherty is a Partner at Napleton & Partners in Chicago, where he represents plaintiffs in personal injury and medical malpractice matters. He has been recognized by Leading Lawyers and is a member of the American Board of Trial Advocates and the Society of Trial Lawyers. Doherty received his undergraduate degree from the University of Wisconsin–Madison and his JD from the DePaul University College of Law.
- Sabrina Elliott
Sabrina Elliott
Sabrina Elliott is a legal claims analyst for the University of Illinois System. She received her JD from the DePaul University College of Law.
- 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.
- 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.
- 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.
- Scott J. Kater
Scott J. Kater
Scott J. Kater is a Partner at Clifford Law Offices in Chicago, where he concentrates his practice in personal injury and medical malpractice. He has been recognized by Lawyers®: Rising Stars (2026), The Best Lawyers in America: Ones to Watch (2023 – 2025), and Leading Lawyers — Emerging Lawyer (2023 and 2024). Kater received his JD from the Loyola University Chicago School of Law.
- Sarah F. King
Sarah F. King
Sarah F. King is a Partner at Clifford Law Offices in Chicago, where she concentrates her practice in medical malpractice. She has been recognized by Best Lawyers in America (2021 – present), as an Illinois Super Lawyers Rising Star (2016 – 2022), and as an Emerging Lawyer by Law Bulletin Media (2017 – 2020). King received her BA from Loyola University Chicago and her JD summa cum laude from the DePaul University College of Law.
- Paige A. Krueger
Paige A. Krueger
Paige A. Krueger is an associate at Hall Prangle, LLC, in Chicago, where she focuses her practice on medical malpractice, health law, products liability, and premises liability. She has been recognized by Best Lawyers: Ones to Watch (2025) and is a member of the Women’s Bar Association of Illinois. Krueger received her BA from the University of Wisconsin–Milwaukee and her JD cum laude from the University of Illinois Chicago School of Law, where she was Productions Editor of the Law Review.
- 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.
- Kenneth T. Lumb
Kenneth T. Lumb
Kenneth T. Lumb is Managing Partner at Corboy & Demetrio in Chicago, where his practice focuses on medical negligence. He is a member of the American Association of Justice, the Illinois Trial Lawyers Association, and the Illinois State Bar Association. He received his BA from the University of Notre Dame and his JD from the DePaul University College of Law.
- J. Kent Mathewson
J. Kent Mathewson
J. Kent Mathewson is a Partner at The Mathewson Law Firm LLP in Chicago, where he focuses his practice on commercial litigation, medical malpractice, product liability, and professional liability. He has been recognized in The Best Lawyers in America for Medical Malpractice Law, as an Illinois Super Lawyer in Civil Litigation Defense, and by his peers in the Leading Lawyers Network for Commercial Litigation, Medical Malpractice Defense Law, and Products Liability Defense Law. Mathewson received his BA cum laude and with distinction from Dartmouth College and his JD from the University of Chicago Law School.
- Renee L. Monfort
Renee L. Monfort
Renee L. Monfort is a Shareholder of Heyl, Royster, Voelker & Allen, P.C., in Champaign, where she focuses her practice on medical malpractice litigation and healthcare/risk management issues. She is a member of the American College of Trial Lawyers and serves as a hearing officer for the Illinois Attorney Registration and Disciplinary Commission. She was an adjunct professor teaching trial advocacy for the University of Illinois College of Law (2006 – 2018). In 2015, she was a recipient of a Jury Verdict Reporter Trial Lawyer Excellence Award for an Outstanding Defense. She has also been recognized as a Leading Lawyer and a Super Lawyer. Monfort received her BS from Murray State University and her JD from Stetson University.
- 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.
- 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.
- Saira Pasha
Saira Pasha
Saira Pasha is the Owner of Audit Trail Pro in Schaumburg and an expert witness. She concentrates her practice in electronic medical records (EMR) audit trail and metadate analysis, EMR inspections, and trainings. Pasha received her BS in Operations and Information Management, with an emphasis in Information Systems, from Northern Illinois University and her JD from the Chicago-Kent College 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.
- Gretchen Powell
Gretchen Powell
Gretchen Powell is a Partner at Smith Blake Hill LLC in Chicago, where she concentrates her practice in healthcare. She is a member of the Chicago Bar Association, the Chicagoland Healthcare Risk Management Society, and the Women’s Bar Association of Illinois. Powell received her BA from the University of Wisconsin–Madison, her MA from Northwestern University, and her JD from the University of Illinois Chicago School of Law.
- Joseph M. Preiser
Joseph M. Preiser
Joseph M. Preiser of Goldberg & Goldberg in Chicago concentrates his practice in medical malpractice and other complex personal injury litigation. He is a member of the Chicago and Illinois State Bar Associations. Preiser received his BA from the University of Illinois Urbana-Champaign and his JD from the Loyola University Chicago School of Law.
- J. Tyler Robinson
J. Tyler Robinson
J. Tyler Robinson is a Shareholder of Heyl, Royster, Voelker & Allen, P.C., in Springfield, where he focuses his practice on medical malpractice defense, healthcare, and qui tam. He is Managing Partner of Heyl Royster’s Springfield Office and serves as Chair of both Heyl Royster’s Medical Malpractice Defense Practice and Heyl Royster’s Qui Tam Practice Group. Robinson received his BS from Southern Illinois University Edwardsville and his JD from the Southern Illinois University Simmons Law School.
- Jeffrey A. Schulkin
Jeffrey A. Schulkin
Jeffrey A. Schulkin is a Partner at Ankin Law Office in Chicago, where he concentrates his practice on medical malpractice. He is Chair for the Illinois State Bar Association’s Section Council (2026 – 2027). Schulkin received his BA from the University of Illinois Urbana-Champaign and his JD 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.
- 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.
- Katie B. Trucco
Katie B. Trucco
Katie B. Trucco is an associate at Donohue Brown Smyth LLC in Chicago, where she focuses her practice on the defense of physicians, hospitals, and other healthcare providers in medical malpractice and professional liability cases. Trucco received her undergraduate degree from the University of Michigan and her JD from the Loyola University Chicago School of Law, where she served as Publications Editor of the Loyola University Chicago Law Journal.
- Kathryn R. Vaughan
Kathryn R. Vaughan
Kathryn R. Vaughan is a Partner at Smith Blake Hill LLC in Chicago, where she concentrates her practice in medical malpractice defense. She is a member of the Illinois State and Chicago Bar Associations and has been recognized by the Chicago Law Bulletin in its Forty Under Forty to Watch (2025). Vaughan received her BA from the University of Illinois at Urbana-Champaign and her JD from New England Law – Boston.
- 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.
- Lillian Walanka
Lillian Walanka
Lillian Walanka is President of Crick Walanka Law Group, Ltd., in Chicago, where she focuses her practice on administrative healthcare law. She is a member of the Illinois State Bar Association, the Decalogue Society of Lawyers, and the Association of Illinois Professional Licensing Lawyers. Walanka received her BA from the University of Illinois at Chicago, her MA from Northeastern Illinois University, and her JD from the DePaul University College of Law.
- Daniel M. Yukich
Daniel M. Yukich
Daniel M. Yukich is a Shareholder of Johnson & Bell in Chicago, where he concentrates his practice in healthcare, investigations, and litigation. He received his BA from John Carroll University and his JD from the University of Illinois Chicago School of Law.
Medical Malpractice 2026 Edition
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