May 2017 Case Notes & Comments

"The key is not the will to win - everybody has that. It is the will to prepare to win that is important." ~ Paul "Bear" Bryant

MONTHLY QUIZ: High School Student is playing floor hockey with other students in PE class when a "squishy" ball bounces off his stick and injures his eye. Student sues District and PE Teacher alleging willful and wanton conduct in failing to require students to wear protective eyewear. Defendants assert affirmative defenses, alleging statutory immunity under the Local Governmental and Governmental Employees Tort Immunity Act (Act). 745 ILCS 10/2-201 and 3-108 (West 2010). At trial, several witnesses testify that a box of safety goggles was stored in the same bucket as the balls, but there is no direct evidence that the goggles were purchased specifically for floor hockey. PE Teacher testifies that she did not require safety googles because she felt that the use of modified hockey sticks and "squishy" balls and imposition of additional rules (e.g. no high-sticking, checking, etc.) negated the need for eyewear. PE Teacher also acknowledges that although the ball would fly above players' waists at times, she had never witnessed anyone get hit in the face with a ball or stick prior to Student's injury. Chairman of the PE department further testifies that there is no District policy, law, or statute requiring eyewear. Neither District nor PE Teacher has knowledge of any similar prior injury. It is the close of the evidence at trial and Defendants move for a directed verdict. Under these facts, has Student presented sufficient evidence as to willful and wanton conduct? Should Student's claims proceed to the jury? You be the judge. (Answer below).

ILLINOIS SUPREME COURT FINDS MEDICAL MALPRACTICE CLAIM FILED 3-YEARS POST DEATH TIMELY: Patient was admitted to Hospital and underwent surgery. During her admission Patient's internist ordered two CT scans. Ultimately, Patient died following numerous complications. Upon receipt of an initial opinion that Hospital and Doctors were negligent, Estate timely filed malpractice claims against Hospital and Doctors within 2 years, but not Radiologist. Approximately 3 years after the death, Estate received an additional opinion that Radiologist's reading and interpretation of the two CT scans was also negligent. Patient's Estate filed additional wrongful death and survival actions against Radiologist. Estate claimed that it had no knowledge that Radiologist was negligent until Expert reviewed the CT scans. Radiologist moved to dismiss on the ground that the two-year statutes of limitations for both wrongful death and survival actions had expired. Estate argued that the discovery rule tolled the wrongful death and survival actions. The trial court dismissed Estate's claims against Radiologist. In a divided opinion, the appellate court affirmed, 2015 IL App (3d) 130613, while a dissenting justice asserted that a reasonable trier of fact could conclude that Estate did not possess sufficient information to know that Patient's death was wrongfully caused until Estate received Expert's report. The Supreme Court agreed with the dissent and reversed, holding that the trial court erred by granting Radiologist's motion to dismiss. In Illinois, the limitations period for wrongful death actions claiming medical malpractice is governed by statute, 735 ILCS 5/13-212(a), and begins to run when "the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death." Since Estate filed suit less than two years after receiving the initial Expert report and within the four-year statute of repose (i.e. see 735 ILCS 5/13-212(a)), Estate's lawsuit against Radiologist was timely filed, and the Court could not "hold, as a matter of law, that the two-year statute of limitations had expired prior to when [Estate] filed [the] complaint." Moon v. Rhode, 2016 IL 119572 (reh'g denied Nov. 21, 2016, Filed Sep. 22, 2016). 

LEF SUCCESSFULLY DEFENDS INSURER AGAINST BAD-FAITH CLAIMS: Congratulations to Roland S. Keske and Patti M. Deuel, who vindicated the insurer-client's handling of an underlying UM claim in a contentious first-party breach of contract / bad faith suit, which was recently arbitrated in the Circuit Court of Cook County Illinois' commercial calendar mandatory arbitration program.  The commercial arbitrator entered a finding of no-liability and an award in favor of the insurer-client and awarded no damages. The Notice of Award was entered in the Circuit Court on April 19, 2017. Jennifer Arias v. American Family Mutual Ins., 2016 L 003329 (Apr. 19, 2017, Cook County).

AFFIDAVIT REQUIRED FOR MEDICAL MALPRACTICE CLAIMS ALSO APPLIES TO ATHLETIC TRAINERS: Public School Board contracts with Athletic Training Firm to provide "on-site injury care and evaluation" of athletes participating in a high school football game. During the game, Athlete collides with another player, suffering a broken rib and ruptured spleen. Trainers do not evaluate Athlete for concussion symptoms and allow Athlete to remain in the game. Athlete subsequently suffers numerous additional impacts to his head, allegedly rendering him disabled. Athlete files suit, alleging that Trainers' negligent failure to examine him for symptoms of a concussion and recognize signs of a concussion, caused his injuries. By Illinois statute, 735 ILCS 5/2-622(a), any complaint alleging healing art malpractice ultimately requires an affidavit and written report from a qualified health professional who has reviewed the relevant records and concluded that there is a meritorious cause for filing the complaint. Trainers move to dismiss Athlete's complaint for failing to attach such an affidavit, arguing that Athlete's claims fall within the ambit of "healing art malpractice" because athletic trainers receive specialized training, have knowledge beyond the grasp of ordinary lay jurors and must be licensed to practice. Athlete responds that his claims allege ordinary negligence, not healing art malpractice. On appeal, the Appellate Court recently held that Athlete was required to attach an affidavit and health professional's report because the standard of care applicable to Trainers involved procedures not within the grasp of the ordinary lay juror, that evaluating concussions inherently involves medical judgment, and that the expert testimony would be necessary to prove Athlete's case. The Court further held that the health professional who reviews the case and writes the report "need not be someone in the same profession, with the same class of license as the defendant athletic trainer, but instead must be a physician licensed to practice medicine in all its branches" who is otherwise qualified under the Section 2-622(a) of the Code of Civil Procedure. Williams v. Athletico, Ltd., 2017 IL App (1st) 161902 (Mar. 21, 2017).

ANSWER TO QUIZ: Defendants win, Student loses. Defendants motion for directed finding should be granted and the case should be dismissed. A verdict may be directed on the issue of willful and wanton conduct if the evidence, viewed in its light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. According to the evidence introduced at trial, PE Teacher required students to play using plastic hockey sticks instead of wooden sticks and "squishy" safety balls instead of hard pucks and genuinely believed that no injury could occur. Even though balls occasionally flew above players' waists, such occurrence did not amount to the failure to take reasonable precautions after knowledge of impending danger, especially where neither District nor PE Teacher had knowledge of a prior injury. Thus, Student did not meet his burden to show that PE Teacher or District exhibited a conscious disregard for Student's safety. Barr v. Cunningham, 2017 IL 120751 (Mar. 23, 2017).

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