A state appeals panel has upheld a $47 million verdict in a medical malpractice lawsuit against Advocate Health in favor of a man who developed sepsis after having his gallbladder removed.
Joseph and Christine Browning sued Advocate Medical Group, Advocate Lutheran General Hospital and several individual doctors in 2016, eventually dismissing all physicians except Dr. Daniel Resnick, the surgeon who removed Joseph’s inflamed organ on Feb. 11, 2015. According to the couple, Browning developed complications Feb. 12, including low blood pressure, an elevated heart rate and abdominal pain. He remained in the intensive care unit for two weeks, and the complaint alleged a medical team disagreed on the nature of the sepsis.
On Feb. 24, according to the couple, Resnick conducted exploratory surgery. Eventually he removed nearly all of Browning’s small bowel and part of his stomach. That April, Browning had a bowel transplant at a hospital outside the Advocate chain.
Illinois First District Appellate Justice Michael B. Hyman
| hymanforjustice.com
The medical negligence complaint also alleged derivative loss of consortium.
The Brownings said doctors should’ve identified the intra-abdominal infection, been more quick to order diagnostics and consult with a gastroenterologist. The hospital defendants argued the medical team acted reasonably and blamed the complications on Browning’s 2013 gastric bypass procedure.
A Cook County Circuit Court trial ended in the Brownings’ favor, with the jury awarding the Brownings $49 million.
Following the trial, the defendants disputed a judge’s decision to allow the jury to hear excerpts from depositions of treating doctors conducted as part of the discovery phase of proceedings. The defendants said this amounted to impermissible hearsay, as it denied defendants the chance to attempt to challenge that testimony during cross-examination before jurors at trial.
The parties agreed to reduce the initial damage award by $2 million to $47 million.
After Cook County Judge John Kirby denied the defendants’ motion for a new trial, they brought the issue to the Illinois First District Appellate Court. Justice Michael Hyman wrote the panel’s opinion, issued Sept. 15; Justice Aurelia Pucinski concurred. Justice Terrence Lavin dissented.
“In pretrial rulings, the motion judge deemed seven physicians who treated Browning as Advocate’s apparent agents, either by agreement or as a sanction for defendants’ discovery violation,” Hyman wrote.
The majority agreed it was wrong to admit the discovery depositions, because the doctors weren’t Advocate employees when they gave sworn testimony years after Browning’s hospitalization.
But Hyman explained the defendants “failed to indicate the nature of the testimony they were prevented from eliciting that would have changed the outcome other than arguing about the unfairness of a one week or so delay between the reading of the discovery deposition excerpts to the jury and defendants’ examination of the physicians.”
The majority ultimately affirmed the verdict, but it rejected the Brownings’ argument Resnick didn’t have the same rights as a defendant as the Advocate entities, as well as a contention the defendants forfeited certain evidence disputes because they didn’t object at the trial, saying the pretrial motion met the needed standard.
In his dissent, Lavin said the panel should’ve reviewed Judge Kirby’s sanctions order.
But Hyman said an Illinois Supreme Court rule bars an appellate court from doing so, because the defendants didn’t raise the issue on appeal.
Neither party contested the validity of the sanctions order, Hyman wrote, explaining Judge Kirby misconstrued that order when granting the Brownings’ pretrial motion. But the majority stressed that although Kirby “erred in finding certain discovery depositions admissible at the trial,” the defendants’ appeal ultimately failed because their “briefs are silent about why the result would have been different had the trial judge not allowed the reading of the discovery depositions.”
In his dissent, Lavin insisted the Brownings’ unfairly benefitted from the pretrial sanctions, calling it “an outright deviation from” court rules. He also said the motion judge’s sanctions were improper because it was wrong to ascertain a legal partnership between Advocate and Advocate Physician Partners.
“Because the jury in this case was not supposed to hear the evidence presented to it through eight discovery depositions,” Lavin wrote, “it is more than reasonable to conclude that the improper evidence affected the outcome of the trial.”
The Brownings have been represented by attorneys Sharon L. Heath and Timothy W. Heath, of Heath & Heath P.C., of Naperville.
Advocate and its related defendants were represented by attorneys J. Timothy Eaton, Jonathan B. Amarilio, and Adam W. Decker, of Taft Stettinius & Hollister LLP, of Chicago.