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Sunday, February 23, 2020

Appeals court: Man's failure to disclose lawsuit in bankruptcy court dooms medmal lawsuit vs Northwestern, doctors

State Court

By John Breslin | Jul 15, 2019

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Northwestern Memorial Hospital | Ken Lund from Reno, Nevada, USA [CC BY-SA 2.0 (] Share to Facebook

CHICAGO -- An appeals court has affirmed that a medical malpractice lawsuit should be thrown out because the man who sued failed to disclose the lawsuit in bankruptcy filings.

A three-justice panel of the the Illinois First District Appellate Court ruled against plaintiff William Higginbotham, who had appealed the summary judgment granted to several doctors and Northwestern Memorial Hospital.

In 2015, Higginbotham sued physicians Daniel Fintel, Keith Benzuly and Daniel Schimmel, the Northwestern Medical Faculty Foundation and the Northwestern Memorial Hospital, alleging they and others had mishandled his medical care in 2013-2014, when he suffered two heart attacks and underwent a triple bypass surgery.

Illinois Appellate Justice Eileen O'Neill Burke |

However, that lawsuit came two years after Higginbotham had filed for Chapter 13 bankruptcy. In December 2017, the defendants in Higginbotham's lawsuit asked the court to dismiss his malpractice lawsuit, asserting the suit was barred from moving forward under the principle known as judicial estoppel, because Higginbotham never disclosed the lawsuit in his bankruptcy proceedings.

In an unpublished order written by Justice Eileen O'Neil Burke, with justices Margaret McBride and Robert Gordon concurring, the panel found a Cook County judge was correct in siding with the defendants in the case.

"The circuit court did not err in granting defendants’ motion for summary judgment based on the application of judicial estoppel where plaintiff received a benefit from his failure to disclose his medical malpractice lawsuit during bankruptcy proceedings and there was sufficient evidence the failure was intentional," Burke wrote.

Higginbotham had appealed, arguing that he received no benefit from failing to reveal details of the lawsuit, the court failed to apply discretion and he did not intentionally choose to not disclose his lawsuit to the federal bankruptcy court.

The plaintiff had filed for bankruptcy with the help of an attorney in Chicago federal bankruptcy court in 2013. He included information on his assets and liabilities, including personal property such as his vehicle, a pension and savings accounts.

Included in the schedule of assets was a statement that he had no other "contingent and unliquidated claims." Higgenbotham signed the petition under penalty of perjury. Following an agreement with his creditors, under which he agreed to pay a certain amount of money every month, the bankruptcy was discharged.

In their decision, the justices said: "In December 2017, [the] defendants moved for summary judgment and contended that, because plaintiff did not disclose his lawsuit against them in his bankruptcy proceedings, judicial estoppel barred his medical malpractice cause of action.

"[The] defendants argued that all of the prerequisites necessary to establish judicial estoppel had been met, including that plaintiff succeeded in his bankruptcy proceedings and received some benefit from his nondisclosure because he was discharged from his debts at the expense of his creditors."

In deciding in favor of the defendants, the appeals justices found Higginbotham "failed to amend his petition to disclose the lawsuit, which in essence amounted to him ignoring the lawsuit’s existence."

The decision was issued as an unpublished order under Supreme Court Rule 23 which limits its use as precedent.

According to Cook County court records, Higginbotham has been represented by attorney Randall F. Peters, of Chicago.

The defendants have been represented by attorneys with the firm of Hall Prangle & Schoonveld, of Chicago.

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