Delayed Diagnosis Apparent Agency – Leg loss $2.4 million verdict

Jury Instructions-IL > Medical Malpractice > Delayed Diagnosis Apparent Agency – Leg loss $2.4 million verdict

John MacDonald & Kathleen MacDonald vs. Dr. Samir Shah, Dr. Kenneth Eng, and St. Francis Hospital & Health Center, 05 L 2373

Leg loss verdict of $2.4 million for failure to diagnose & treat arterial occlusion

2008 malpractice action against a hospital, nurses and doctors who allegedly failed to diagnose and treat acute arterial occlusion which resulted in the loss of the right leg of plaintiff who presented to the emergency room with a history of peripheral arterial disease and complaints of acute leg pain. The jury answered 4 special interrogatories on causation and apparent agency and it delivered 6 notes, including a request for an explanation of apparent agency. Verdict of $2.4 million.

IPI 1.01 – Modified by the court to be read at end of case, and updated by IPI Committee in 2009 to include old IPI 3.01 language)

Now that the evidence has concluded, I will further instruct you as to the law and your duties. The law regarding this case is contained in the instructions I will give to you. You must consider the Court’s instructions as a whole, not picking out some instructions and disregarding others.

It is your duty to resolve this case by determining the facts and following the law given in the instructions. Your verdict must not be based upon speculation, prejudice, or sympathy. [Each party, whether a ________________________ or (i.e., corporation, partnership, etc.) an individual, should receive your same fair consideration.]

I have not meant to indicate any opinion as to the facts of this case by any of my rulings, remarks, or instructions.

You will decide what facts have been proven. Facts may be proven by evidence or reasonable inferences drawn from the evidence. Evidence consists of the testimony of witnesses and of exhibits admitted by the court. You should consider all the evidence without regard to which party produced it. You may use common sense gained from your experiences in life in evaluating what you see and hear during trial.

You are the only judges of the credibility of the witnesses. You will decide the weight to be given to the testimony of each of them. In evaluating the credibility of a witness you may consider that witness’ ability and opportunity to observe, memory, manner, interest, bias, qualifications, experience, and any previous inconsistent statement or act by the witness concerning an issue important to the case.

The use of cell phones, text messaging, Internet postings and Internet access devices in connection with your deliberations violates the rules of evidence and you are prohibited from using them

You must make your decision based on what you recall of the evidence. You will not receive a written transcript of the testimony when you retire to the jury room.

An opening statement is what an attorney expects the evidence will be. A closing argument is given at the conclusion of the case and is a summary of what an attorney contends the evidence has shown. If any statement or argument of an attorney is not supported by the law or the evidence you should disregard that statement.

[INSERT HERE IPI 3.08 – Opinion Testimony/New

You have heard witnesses give opinions about matters requiring knowledge and skill. You should judge their testimony in the same way you judge the testimony from any other witness. The fact that such persons have given opinions does not mean that you are required to accept them Give the testimony whatever weight you think it deserves, considering the reasons given for the opinion, the witness’ qualifications, and all of the other evidence in the case

IPI 2.01 – Evidence Deposition

The testimony of Dr. Joseph Chiota, Jr. was presented on videotape to the jury. You should give his testimony the same consideration you would give it had the witnesses personally appeared in court to testify in person.

IPI 3.01 Rulings and Remarks of the Court

Now that the evidence has concluded, I will further instruct you as to the law and your duties. I have not meant to indicate any opinion as to the facts of this case by any of my rulings, remarks, or instructions.

IPI 3.02 Witness Who Has Been Interviewed by Attorney

An attorney may, if a witness agrees, interview a witness to learn what testimony will be given. Such an interview, by itself, does not reflect adversely on the truth of the testimony of the witness.

3.03 Liability Insurance/Collateral Source

Whether a party is insured has no bearing whatever on any issue that you must decide. You must refrain from any inference, speculation, or discussion about insurance.

If you find for the plaintiff, you shall not speculate about or consider any possible sources of benefits the plaintiff may have received or might receive. After you have returned your verdict, the court will make whatever adjustments are necessary in this regard.

IPI 3.04 Circumstantial Evidence

A fact may be proved by circumstantial evidence. Circumstantial evidence consists of the proof of facts or circumstances which leads to a reasonable inference of the existence of other facts sought to be established.

41.01 Two or More Plaintiffs

The Plaintiffs in this case are:

John MacDonald

Kathleen MacDonald

The Defendants in this case are:

Dr. Samir Shah

Dr. Kenneth Eng

SSM Regional Health Care Corporation d/b/a St. Francis Hospital & Health Center

The rights of the party-plaintiffs, John MacDonald and Kathleen MacDonald, are separate and distinct. Each is entitled to a fair consideration of his or her own case and you will decide each plaintiff’s case as if it were a separate lawsuit. Each plaintiff’s case must be governed by the instructions applicable to that case.

IPI 41.03 Two or More Defendants

The rights of the defendants, Dr. Samir Shah, Dr. Kenneth Eng, and St. Francis Hospital & Health Center, are separate and distinct. Each is entitled to a fair consideration of its own defense and you will decide each defendant’s case separately as if it were a separate lawsuit. Each defendant’s case must be governed by the instructions applicable to that case.

50.02 Principal Sued But Not Agent—No Issue as to Agency

Porfiria Perez, R.N. was the agent of the defendant, St. Francis Hospital & Health Center, at the time of this occurrence. Therefore, any act or omission of Porfiria Perez, R.N. at that time was in law the act or omission of St. Francis Hospital & Health Center.

105.10 Claims Based on Apparent Agency—Both Principal and Agent Sued— Principal Sued Under Respondeat Superior Only—Medical Malpractice Actions—Reliance on Principal Alleged

Under certain circumstances, the liability of a party may arise from an act or omission of that party’s “apparent agent”.

In the present case, John and Kathleen MacDonald have sued St. Francis Hospital & Health Center as the principal and Dr. Kenneth Eng as its apparent agent.

St. Francis Hospital & Health Center denies that any apparent agency relationship existed.

In order for an apparent agency relationship to have existed, the Plaintiffs must prove the following:

First, that St. Francis Hospital & Health Center held itself out as a provider of complete emergency room care and that John MacDonald neither knew nor should have known that Dr. Kenneth Eng was not an employee of St. Francis Hospital & Health Center.

Second, that John MacDonald did not choose Dr. Kenneth Eng but relied upon St. Francis Hospital & Health Center to provide complete emergency room care.

If you find that Dr. Kenneth Eng was the apparent agent of St. Francis Hospital & Health Center at the time of the occurrence, and if you find that Dr. Kenneth Eng is liable, then both St. Francis Hospital & Health Center and Dr. Kenneth Eng are liable.

If you find that Dr. Kenneth Eng is not liable, then neither St. Francis Hospital & Health Center nor Dr. Kenneth Eng is liable for the acts of Dr. Kenneth Eng.

If you find that Dr. Kenneth Eng is liable, but that he was not the apparent agent of St. Francis Hospital & Health Center at the time of the occurrence, then St. Francis Hospital and Health Center is not liable for the acts of Dr. Kenneth Eng.

105.01 Duty of a Non–Specialist Professional—Professional Negligence

“Professional Negligence” by a doctor, or a nurse, is the failure to do something

that a reasonably careful doctor, or a reasonably careful nurse, would do, or the doing of something that a reasonably careful doctor or a reasonably careful nurse would not do, under circumstances similar to those shown by the evidence.

The phrase “deviation from or violation of the standard of care” means the same

thing as “professional negligence.”

To determine what the standard of care required in this case, you must rely

upon the opinion testimony from qualified witnesses. You must not attempt to determine this question from any personal knowledge you have.

The law does not say how a reasonably careful doctor or a reasonably careful

nurse would act under these circumstances. That is for you to decide.

[Language upheld: LaSalle Bank vs. C/HCA Devpt 384 Ill. App. 3d 806 (1^st 2008)]

IPI 15.01 Proximate Cause—Definition [Updated Sept.2009]

When I use the expression “proximate cause,” I mean a cause that, in the natural or

ordinary course of events, produced the plaintiff’s injury. [It need not be the only cause,

nor the last or nearest cause. It is sufficient if it combines with another cause resulting in

the injury.]

IPI 20.01 – ISSUES – Negligence

The plaintiffs, John MacDonald and Kathleen MacDonald, claim that they were injured and that the defendants, Dr. Samir Shah, Dr. Kenneth Eng, and St. Francis Hospital & Health Center, were negligent in one or more of the following respects:

As to Dr. Samir Shah:

Failed to obtain or arrange for an immediate vascular surgical consultation while John MacDonald was a patient in the emergency room at St. Francis Hospital on March 18, 2000.

As to Dr. Kenneth Eng:

Failed to obtain or arrange for an immediate vascular surgical consultation while John MacDonald was a patient in the emergency room at St. Francis Hospital on March 18, 2000.

As to St. Francis Hospital:

Failed to perform appropriate assessments of John MacDonald while he was a patient in the emergency room on March 18, 2000; or

Failed to appropriately communicate findings regarding assessments of John MacDonald to Dr. Eng and/or Dr. Shah while John MacDonald was a patient in the emergency room on March 18, 2000.

The plaintiffs further claims that one or more of the foregoing was a proximate cause of the injuries of John MacDonald and Kathleen MacDonald.

The defendants deny that they did any of the things claimed by the plaintiff, deny that they were negligent in doing any of the things claimed by the plaintiffs and deny that any claimed act or omission on the part of the defendants was a proximate cause of the claimed injuries of John MacDonald.

IPI 21.01 – BURDEN OF PROOF

When I say that a party has the burden of proof on any proposition, or use the expression “if you find,” or “if you decide,” I mean you must be persuaded, considering all the evidence in the case, that the proposition on which a party has the burden of proof is more probably true than not true.

IPI 21.02 – BURDEN

As to a plaintiff’s claim of negligence, the plaintiff has the burden of proving each of the following propositions as to a defendant:

First, that the defendant acted or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant was negligent;

Second, that the plaintiff was injured;

Third, that the negligence of the defendant was a proximate cause of the injury to the plaintiff.

If you find from your consideration of all the evidence that the plaintiff has proved all of the propositions required of the plaintiff as to any one or more of all defendants, then your verdict shall be for the plaintiff as to that defendant or those defendants.

On the other hand, if you find from your consideration of all the evidence that any of these propositions has not been proved as to any one, or more, or all of the defendants, then your verdict should be for that defendant or those defendants.

12.05 Negligence—Intervention of Outside Agency

If you decide that one or more of the defendants was negligent and that this negligence was a proximate cause of injury to the plaintiff, it is not a defense that something else may also have been a cause of the injury.

However, if you decide that the sole proximate cause of injury to the plaintiff was something other than the conduct of the defendants, then your verdict should be for the defendants.

30.01 et seq Damage Instructions, Measure of Damages

If you decide for the plaintiff, John MacDonald, on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damages proved by the evidence to have resulted from the negligence of the defendant, taking into consideration the nature, extent and duration of the injury.

Loss of Normal Life experienced or reasonably certain to be experienced in the future.

30.04.02 Loss of a Normal Life—Definition

When I use the expression “loss of a normal life”, I mean the temporary or permanent diminished ability to enjoy life. This includes a person’s inability to pursue the pleasurable aspect of life.

Pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries

The reasonable expense of necessary medical care, treatment and services received.

Disfigurement.

Whether any of these elements of damages has been proved by the evidence is for you to determine.

32.01 Measure of Damages—Injury to Spouse or Family Member

If you decide for the plaintiff, Kathleen MacDonald, on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate her for any of the following element of damages arising out of injuries to her husband proved by the evidence to have resulted from the negligence of the defendant.

The reasonable value of the society, companionship and sexual relationship with her husband of which she has been deprived and the society, companionship and sexual relationship with her husband of which she is reasonably certain to be deprived in the future. 32.04

Whether any of these elements of damages has been proved by the evidence is for you to determine.

34.04 Damages Arising in the Future—Mortality Tables as Evidence of Damages—Injury Case

According to a table of mortality in evidence, the life expectancy of a person aged 59 is 21.3 years. This figure is not conclusive. It is the average life expectancy of persons who have reached the age of 59. It may be considered by you in connection with other evidence relating to the probable life expectancy of the plaintiff in this case, including evidence of his occupation, health, habits, and other activities, bearing in mind that some persons live longer and some persons less than the average.

IPI.36.01 In Absence of Liability—No Occasion to Consider Damages

If you decide for a defendant on the question of liability, you will have no occasion to consider the question of damages as to that defendant.

B45.01 – FORMS OF VERDICT

When you retire to the jury room you will first select a foreperson. He or she will preside during your deliberations.

Your verdict must be unanimous.

Forms of verdicts are supplied with these instructions. After you have reached your verdict, fill in and sign the appropriate form of verdict and return it to the court. Your verdict must be signed by each of you. You should not write or mark upon this or any of the other instructions given to you by the court.

The Plaintiffs in this case are:

John MacDonald

Kathleen MacDonald

The Defendants in this case are:

Dr. Samir Shah

Dr. Kenneth Eng

SSM Regional Health Care Corporation d/b/a St. Francis Hospital & Health Center

If you find for the Plaintiff, John MacDonald, and against one or more of the Defendants, Dr. Samir Shah, Dr. Kenneth Eng, and St. Francis Hospital & Health Center, then you should use Verdict Form A.

If you find for all of the Defendants, Dr. Samir Shah, Dr. Kenneth Eng, and St. Francis Hospital & Health Center, and against the Plaintiff, John MacDonald, then you should use Verdict Form B.

If you find for the Plaintiff, Kathleen MacDonald, and against one or more of the Defendants, Dr. Samir Shah, Dr. Kenneth Eng, or St. Francis Hospital & Health Center, then you should use Verdict Form C.

If you find for all of the Defendants, Dr. Samir Shah, Dr. Kenneth Eng, and St. Francis Hospital & Health Center, and against the Plaintiff, Kathleen MacDonald, then you should use Verdict Form D.

Four (4) “Special Interrogatories” are supplied with these instructions. After you have reached a verdict, fill in and sign each of the Special Interrogatories and return them to the court along with the forms of verdict. Each of the Special Interrogatories must be signed by each of you.

VERDICT FORM A

We, the jury, find for the Plaintiff, John MacDonald, and against the following Defendant or Defendants:

Dr. Samir Shah YES _____ NO _____

Dr. Kenneth Eng YES _____ NO _____

St. Francis Hospital & Health Center YES _____ NO _____

We find the total amount of damage suffered by John MacDonald as a proximate result of the occurrence in question is $_________________________________, itemized as follows:

Loss of Normal Life experienced and reasonably certain

to be experienced in the future $_________________

Pain and suffering experienced and reasonably certain to be

experienced in the future $_________________

The reasonable expense of necessary medical care, treatment

and services received $_________________

Disfigurement $_________________

[Signature Lines ]

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(Foreperson

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VERDICT FORM B

We, the jury, find for all of the defendants and against the plaintiff, John MacDonald.

[Signature Lines ]

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(Foreperson

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VERDICT FORM C

We, the jury, find for the Plaintiff, Kathleen MacDonald, and against the following Defendant or Defendants:

Dr. Samir Shah YES _____ NO _____

Dr. Kenneth Eng YES _____ NO _____

St. Francis Hospital & Health Center YES _____ NO _____

We find the total amount of damage suffered by Kathleen MacDonald as a proximate result of the occurrence in question is $_________________________________, itemized as follows:

The reasonable value of the society, companionship and sexual

relationship with her husband of which she has been deprived and

which she is reasonably certain to be deprived in the future. $________________

[Signature Lines ]

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(Foreperson)

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VERDICT FORM D

We, the jury, find for all of the defendants and against the plaintiff, Kathleen MacDonald.

[Signature Lines ]

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(Foreperson

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SPECIAL INTERROGATORY#1

On March 18, 2000, was Dr. Samir Shah’s negligent conduct a proximate cause of the injury suffered by John MacDonald?

YES __________ NO ____________-

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(Foreperson)

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SPECIAL INTERROGATORY#2

On March 18, 2000, was Dr. Kenneth Eng’s negligent conduct a proximate cause of the injury suffered by John MacDonald?

YES __________ NO ____________-

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(Foreperson)

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SPECIAL INTERROGATORY#3

On March 18, 2000, was Nurse Porfiria Perez’ negligent conduct a proximate cause of the injury suffered by John MacDonald?

YES __________ NO ____________-

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(Foreperson)

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SPECIAL INTERROGATORY#4

On March 18, 2000, was Dr. Kenneth Eng the “apparent agent” of St. Francis Hospital and Health Center as it is defined to you in these instructions?

YES __________ NO ____________-

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(Foreperson)

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