Illinois Appellate Court Holds Trial Court Erred In Failing To Enter Judgment N.O.V. For Medical Malpractice Plaintiff

The Appellate Court of Illinois Third District (“Illinois Appellate Court”) held in its Order filed on July 19, 2019, “Plaintiff is entitled to judgment n.o.v. on the issue of liability where evidence overwhelmingly established that orthopedic treatment facility was negligent in failing to schedule follow-up appointment as ordered by treating physician.”

The Underlying Facts

The decedent sustained an injury to his right leg and ankle while playing basketball with some co-workers on January 29, 2009. He visited the defendant orthopedics practice on February 17, 2009. An orthopedic surgeon employed by the defendant orthopedics practice diagnosed the decedent with a partially torn Achilles tendon and planned to place the decedent’s right leg in a cast with his foot pointed in a downward direction for six weeks. He also ordered the decedent to return to the clinic in two weeks for a follow-up examination.

On February 19, the decedent had a plaster cast placed around his right leg. Before he left the office, a receptionist scheduled the decedent’s follow-up appointment for March 13, 2009. The next day, the decedent experienced discomfort with the position of his ankle in the cast. On February 25, the decedent called the defendant’s office and a receptionist changed his follow-up appointment from March 13 to March 12. On March 8, 2009, the decedent suffered a pulmonary embolism from a deep vein thrombosis (DVT) and died.

The decedent’s wife filed an Illinois medical malpractice wrongful death lawsuit against the defendant orthopedics practice and the orthopedic surgeon on behalf of herself and her husband’s estate, alleging that the defendant orthopedics practice and the defendant orthopedic surgeon were medically negligent in failing to schedule a timely follow-up appointment for the decedent, the defendant orthopedics practice’s receptionists were negligent in failing to follow the defendant orthopedic surgeon’s order and schedule the decedent’s follow-up appointment within two weeks, and by failing to schedule an immediate appointment as a result of his February 25 phone call. The Illinois medical malpractice complaint asserted that had the decedent returned to the defendants on or before March 3, 2009, the DVT would have been diagnosed and the fatal pulmonary embolism would have been prevented.

The defendant orthopedic surgeon testified at trial that it was his custom and practice to note the date of a follow-up appointment on the bottom of a document referred to as a “super bill” and to give the super bill to the receptionist on duty at the end of every appointment. The receptionist would then schedule the appointment in accordance with his instructions.

The Illinois medical malpractice jury found in favor of the defendants and the trial judge denied the plaintiff’s motion for judgment notwithstanding the verdict (N.O.V.). The plaintiff filed an appeal.

Illinois Appellate Court Order

The Illinois Appellate Court stated, “The evidence established, through physician testimony, office protocol, administrative scheduling documents and custom and practice, that the standard of care of a “reasonably careful” treating institution was to follow the written order on the super bill. That evidence was not contradicted. The evidence also demonstrated that [the defendant orthopedics practice] breached the standard of care. The super bill instructed the receptionists to schedule the appointment for two weeks from February 19, and the receptionists did not schedule the appointment within that two-week window. No one testified that [the defendant orthopedics practice] scheduled or attempted to schedule the followup appointment between February 19 and March 3. Because there is no evidence demonstrating a factual dispute, the trial court erred in denying [the plaintiff’s] motion for judgment n.o.v. on the issue of [the defendant orthopedics practice] liability … That standard of care was established by plaintiff, and defendant presented no evidence to refute it. Based on the standard of care applied to an orthopedic treatment facility, all the evidence as to [the defendant orthopedics practice’s] negligence so overwhelmingly favors plaintiff that no verdict for defendant could ever stand.”

Source Steed v. Rezin Orthopedics and Sports Medicine, S.C., 2019 IL App (3d) 170299-U.

If you or a loved one may have suffered serious harm as a result of orthopedic malpractice in Illinois or in another U.S. state, you should promptly find an Illinois medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your orthopedic medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice lawyers in your U.S. state who may assist you.

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This entry was posted on Wednesday, August 21st, 2019 at 5:28 am. Both comments and pings are currently closed.

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