Publications

Illinois Bar Journal
Articles on Medical Malpractice

Preserving the Peer Review Privilege in Med-Mal Cases By Margaret J. Lowery April 2014 Article, Page 176 Properly performed peer review is not subject to discovery in med-mal litigation. But health care providers sometimes learn the hard way how the privilege can be lost.
Supreme court: IPI instruction misstates med-mal standard of care By Helen W. Gunnarsson September 2011 Lawpulse, Page 434 An Illinois Pattern Jury Instruction doesn't state the correct standard for determining whether a physician's conduct was reasonable in a med-mal case, the Illinois Supreme Court ruled.
Supreme court: med-mal statute of repose limits implied indemnity claims By Helen W. Gunnarsson March 2011 Lawpulse, Page 118 In other words, don't wait more than five years to file your counterclaim, as the co-defendant hospital did in Uldrych v VHS of Illinois, Inc.
Judicial Versus Legislative Authority after Lebron By Professor Jeffrey A. Parness June 2010 Column, Page 324 The med-mal caps ruling continues the age-old battle over separation of powers.
Illinois Supreme Court: statutory med-mal caps are unconstitutional By Helen W. Gunnarsson March 2010 Lawpulse, Page 122 By overriding juries' findings and judicial oversight over them, the caps law violated the separation of powers, the court ruled.
Proving Proximate Cause in Malpractice cases By Terrence J. Lavin and Kristina M. Lau May 2009 Article, Page 254 Illinois courts are still struggling to determine the plaintiff's proper burden of proving proximate cause in "lost chance" cases.
A dismissal granting leave to amend is not a final adjudication February 2009 Illinois Law Update, Page 70  On December 2, 2008, the Illinois Appellate Court, Second District, reversed and remanded the judgment of the Circuit Court of Lake County granting the defendants' motions to dismiss and dismissing the plaintiff's medical malpractice complaint.
Supremes: the Best approach to tort reform survives By Helen W. Gunnarsson August 2008 Lawpulse, Page 384  The supreme court holds that a med-mal plaintiff is entitled to a 90-day extension to file her certificate of merit - and that a 2004 law didn't reenact the version of 2-622 invalidated in Best v Taylor.
No in personam jurisdiction over Indiana clinic March 2008 Illinois Law Update, Page 124 On December 28, 2007, the Illinois Appellate Court, First District, reversed the holding of the Circuit Court of Cook County denying the defendant's motion to dismiss for lack of in personam jurisdiction.
Time between voluntary dismissal and refiling does not affect reasonable diligence assessment February 2008 Illinois Law Update, Page 72 On December 13, 2007, the Illinois Supreme Court reversed the judgment of the appellate court and the Circuit Court of Knox County, holding the passage of time between a plaintiff's voluntary dismissal and refiling is not included in considering the plaintiff's diligence under Supreme Court Rule 103(b). 
Strong public policy to disclose patient names to newspaper cannot override privacy June 2007 Illinois Law Update, Page 292 On April 9, 2007, the Illinois Appellate Court, Fifth District, affirmed the Circuit Court of Washington County's denial of the intervener's request that the court unseal the names of certain medical patients contained in a previous court order. 
Extra fees for extra effort - a win in the appellate court By Helen W. Gunnarsson February 2007 Lawpulse, Page 66 The appellate court reversed the trial court's rejection of a plaintiff's firm's argument that its extraordinary effort justified fees that exceeded the statutory med-mal limit.
Lawsuit challenges med-mal caps By Helen W. Gunnarsson January 2007 Lawpulse, Page 8 The suit, filed in Cook County, argues that the statute violates the separation of powers, is impermissible special legislation, and suffers from other constitutional infirmities.
Expanding the Use of Medical Treatises in Illinois Trials By Terrence J. Lavin and Michelle L. Wolf August 2006 Article, Page 426 The authors argue that following the federal approach would produce a better-informed jury.
When the doctor is the patient - and a med-mal defendant By Helen W. Gunnarsson August 2006 Lawpulse, Page 398 Should a defendant-doctor's medical records be available to a plaintiff who alleges that the doctor's poor health caused him to deliver substandard care?
Medical Malpractice and the Tort System in Illinois By Neil Vidmar July 2005 Article, Page 340 According to an ISBA-commissioned report, the increase in doctors' liability insurance premiums apparently has not been caused by runaway juries.
Getting the Most from Medical Witness Treaters and Experts: A Trial Lawyer’s Guide By Terrence J. Lavin May 2005 Article, Page 246 How to find and use physicians and other medical witnesses.
Hospital and HMO Liability for Contract Physician Malpractice: An Update By Robert J. Napleton February 2005 Article, Page 88 This article offers a trial lawyers' perspective on how the apparent agency doctrine has evolved since Gilbert v Sycamore Municipal Hospital
Challenging the Medical Studies Act’s Peer-Review Privilege By Judy L. Cates November 2004 Article, Page 582 A plaintiff's-eye view of this important limit on discovery in med-mal cases.
Expert’s affidavit establishes prima facie case of medical malpractice November 2004 Illinois Law Update, Page 568 On August 17, 2004, the Illinois Appellate Court, Fourth District, affirmed in part and reversed in part the decision of the Circuit Court of Sangamon County that granted the defendant's motion for summary judgment in a medical malpractice action. 
Can cities cap med-mal damage awards? By Helen W. Gunnarsson September 2004 Lawpulse, Page 450 Does home rule authority really empower cities to regulate medical malpractice litigation? Not likely, observers say.
Malpractice Wars Redux: The Same Old Song By Terrence J. Lavin April 2004 Column, Page 168 The temporary custodian of the office of ISBA president never exactly knows what issues and challenges will surface during his/her year at the helm. 
Return of the Petrillo doctrine for hospital defendants By Helen W. Gunnarsson November 2003 Lawpulse, Page 544 Beginning next year, a new law will once again ban ex parte conversations between a hospital's lawyers and a plaintiff's treating physicians.
Hospitals potentially liable even if doctor takes the blame By Helen W. Gunnarsson September 2003 Lawpulse, Page 430 The supreme court recently affirmed a med-mal plaintiff's right to proceed against a hospital even where the physician falls on his sword.
Plaintiff asserting private right of action for personal injury under Nursing Home Care Act does not have to attach certificate and report under section 2-622 of Code of Civil Procedure May 2003 Illinois Law Update, Page 226 On February 21, 2003, the Illinois Supreme Court affirmed the decision of the appellate court that a plaintiff asserting a private right of action under the Nursing Home Care Act, 210 ILCS 45/1-101.
Must Med-Mal Plaintiffs File Section 2-622 Certificates of Merit in Federal Court By Robert P. Vogt February 2003 Article, Page 72 Some courts say yes, some say no. The author argues that certificates of merit should be required in federal court.
Affidavits of expert witnesses must comply with the plain language of Illinois Supreme Court Rule 191(a) September 2002 Illinois Law Update, Page 454 On June 20, 2002, the Illinois Supreme Court reversed the appellate court and upheld the trial court's decision to reject the affidavit of the plaintiff's medical expert.
The Tort Immunity Anomaly: Failure to Properly Examine or Diagnose By Michael P. Cogan September 2002 Article, Page 476 The author argues that county health-care employees should not be immunized for failure to properly diagnose -- as opposed to treat -- illness.
In absence of additional evidence, a signed consent form indicating plaintiff’s anesthesiologist was an independent contractor was sufficient to show that codefendant hospital did not “hold out” the doctor as its apparent agent July 2002 Illinois Law Update, Page 344 On April 26, 2002, the Appellate Court of Illinois, Second District, affirmed the decision of the Circuit Court of Kane County in granting codefendant hospital's motion for summary judgment.
Availability of access to records of psychological treatment further narrowed May 2002 Illinois Law Update, Page 232 On February 22, 2002, the Illinois Supreme Court reversed the judgment of the appellate court in ruling that when a patient and his wife brought a malpractice action against a hospital and doctors, they did not place the patient's mental health at issue.