By TonyTheTiger (Own work) [CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

A Chicago appeals panel has pulled a $14.4 million jury award from the parents of a toddler, who died through medical malpractice, saying the obstetricians' insurer – Illinois' No. 1 malpractice provider – deserved 12 rather than six jurors, in a trial over accusations the insurer allegedly misled the doctors into going to trial in the underlying malpractice suit, instead of settling for the amount of their coverage, which left the doctors personally on the hook for more than $1 million.

The March 16 ruling was penned by Justice Mary Rochford, with concurrence from Justices Jesse Reyes and Shelvin Hall, of the Illinois First District Appellate Court. Their decision favored Chicago-based Illinois State Medical Inter-Insurance Exchange Mutual Insurance (ISMIE), in the litigation brought by Alizabeth and Elvin Hana.

Justie Mary K. Rochford
Justie Mary K. Rochford | Illinoiscourts.gov

ISMIE is the largest provider of medical malpractice insurance in Illinois.

The Hana couple's child, Mary, was born in 2004 in Chicago with brain injury caused by oxygen deprivation. The girl lived in a vegetative state until dying in 2007. The parents sued obstetricians Albert Chams and Joyce Chams, of Chams Women's Health Care, in Cook County Circuit Court, winning a $6.2 million jury award in 2009. The Chams practice was covered by ISMIE. The insurance company appealed the verdict, but lost.

The Hanas then learned ISMIE only covered the Chams up to $5 million, which left the Chams owing the difference of more than $1 million. As a consequence, the Hana couple sued ISMIE, alleging ISMIE did not tell the doctors before trial the Hanas would settle for less than $5 million. Instead, they alleged ISMIE told the doctors ISMIE was interested in settling, when ISMIE had no intention of settling. Further, ISMIE allegedly led the doctors to believe they had more coverage than they really did, and so had less personal financial risk.

When the case reached trial in late 2015, the Hana couple opted for a six-person jury. ISMIE objected, wanting 12 jurors, but Cook County Judge Irwin Solganick refused. The jury found for the Hanas, awarding them the amount the Chams owed, as well as $13 million in punitive damages.

ISMIE appealed on a number of grounds, but the company's objection to the six-person jury was enough to carry the day, making its other arguments unnecessary.

Justice Rochford noted a state law took effect June 1, 2015, reducing juries in civil cases from 12 to six jurors. However, the Illinois Supreme Court declared in September 2016 the juror reduction was void from inception, because 12-person juries were in place at the time of the 1970 state constitution, so that number was constitutionally protected.

The Hanas argued the six-juror verdict should stand, but Rochford swept those arguments aside. In one of the arguments, the Hanas maintained it was “pure speculation to say the verdict would have been different if there had been more jurors.”

In reply, Rochford noted the unconstitutional six-juror statute means the Hana-ISMIE verdict and judgment “simply have no legal effect, and may not now be affirmed on direct appeal.”

Apart from the jury issue, ISMIE had asked the trial judge to toss the jury's verdict, because the verdict was not supported by the evidence, but the judge refused. ISMIE wanted the appellate court to rule the judge should have thrown out the verdict.

Rochford noted she was reluctant to address the matter, because the trial was invalid, including the judge's refusal to override the verdict. Nonetheless, Rochford said the judge was not wrong to deny ISMIE's request, because the “evidence does not so overwhelmingly favor ISMIE such that no contrary verdict based on that evidence could ever stand.”

The Hanas were represented by the Chicago firm of Burke Wise Morrisey & Kaveny.

ISMIE was defended by the Chicago firm of Stamos & Trucco.

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Cook County Circuit Court Illinois First District Appellate Court Illinois Supreme Court Stamos and Trucco




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