A Chicago appellate court has tossed a Cook County judge's “unreasonable” decision to grant a new trial for a plaintiff in a malpractice suit, saying the trial judge was wrong to declare the Northwestern Medical Faculty Foundation had failed to furnish home health care records to the plaintiff, as justices said Northwestern didn't hide the records and plaintiff had access to them anyway.

The Nov. 9 ruling was penned by Justice Eileen Burke, with concurrence from Justices Margaret McBride and David Ellis, of the Illinois First District Appellate Court. The ruling was filed under Supreme Court Rule 23, which means it cannot be cited as precedent except in the circumstances allowed under the rule.

The appellate ruling reversed a decision by Cook County Judge Thomas Flanagan that granted a new trial to plaintiff Carolyn Howard.

Howard had filed a medical malpractice and wrongful death suit in 2007 against the following: Northwestern Memorial Hospital in Chicago; Northwestern Medical Faculty Foundation in Chicago, which is associated with Northwestern University in Evanston; Roseland Community Hospital in Chicago; and two doctors and two nurses.

Howard's 80-year-old mother, Alice Bowen, died in June 2005. Howard sued defendants, alleging they mismanaged Bowen's anti-coagulation medicine, Coumadin, which led her to ingest too much of the drug, causing blood to clot and swell around her spinal cord. As a consequence, her lower extremities were paralyzed and she died.

The defendants were eventually dismissed from the case, except for Northwestern Medical Faculty Foundation, which went to trial, with a jury finding for Northwestern.

Howard asked for a new trial, claiming Northwestern subpoenaed records from Compassionate Home Care, which cared for Bowen, through U.S. Legal Support, a vendor that provides legal services. However, Northwestern did not, in turn, furnish the records to Howard, as required by the discovery process, Howard alleged. Even if Northwestern did not deliberately hide the documents, it had a duty to turn them over, Howard claimed.

Northwestern contended it told Howard of the subpoena, the records received and how to order them from the vendor. The vendor also talked by phone with Howard's attorney about the records. However, Howard did not respond to the opportunities to obtain them, according to Northwestern. At any rate, the records were irrelevant anyway, Northwestern said.

In March 2016, Judge Flanagan granted Howard's request for a new trial, but Northwestern cried foul and the appellate court agreed.

Justice Burke said she was “concerned” about inaccuracies in Flanagan's ruling, such as his conclusion Northwestern never told Howard of the subpoena. Burke described as “unreasonable” Flanagan's decision to allow a new trial.

Burke further pointed out Northwestern did not lie or try to hide the documents.

“Howard could have obtained copies of the records with minimal diligence,” Justice Burke opined, adding that Howard eventually gained access to the documents, which were of negligible value, and used them at trial.

Burke conceded Northwestern committed a technical violation by not handing over the records, but the violation did not warrant a new trial and Flanagan's decision was “disproportionate.”

Burke threw out Flanagan's ruling and reinstated the jury's verdict.

Howard has been represented by the Chicago firm of Power, Rogers & Smith.

Defendants have been represented by the following Chicago firms and lawyer: Myers & Miller; Pretzel & Stouffer; Barker Castro LLC; Fedota Childers PC; and Francis De Rosa.

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Cook County Circuit Court Illinois First District Appellate Court Northwestern Memorial Hospital

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