Krista Frick Secures Victory for Physician in Petition for Rehearing in Medical Malpractice Case

January 2021

In a medical malpractice action brought against a physician client over 7 years ago, BCKS Partner Krista Frick recently secured a win before the Illinois Appellate Court Third District in a petition for rehearing wherein the Third District reversed its own prior ruling in relation to summary judgment on the element of duty.

The plaintiff brought a cause of action on behalf of her deceased husband against various defendants, including an on-call hematologist who was contacted by phone while the decedent was undergoing treatment at the defendant hospital. A motion for summary judgment was brought on behalf of the on-call hematologist based upon the absence of a duty of care owed to the patient where no request was made for the on-call hematologist to see the patient; where the on-call hematologist neither interpreted tests nor conduct any tests; he did not form any medical opinions about the patient; he did not provide any specific service to the patient; was neither employed by the hospital nor was he a party to any contract with the hospital; and where the on-call hematologist neither billed nor was compensated for any consulting services for the patient. Relying on Kundert v. Illinois Valley Community Hospital, 2012 IL App 3d 110007 and Reynolds v. Decatur Memorial Hospital, 277 Ill. App. 3d 80 (4th Dist. 1996), the circuit court entered summary judgment, but counsel for the plaintiff objected to the entry of Illinois Supreme Court Rule 304(a) language.

The case proceeded to trial against the hospital and other defendant physicians. A jury returned a verdict in favor of the plaintiff in the amount of $1.6 million. The jury was improperly provided and utilized a jury instruction permitting the apportionment of damages. Both plaintiff and defendants filed post-trial motions which were denied, and both appealed to the Illinois Appellate Court, Third District. Plaintiff’s appeal included a claim that the circuit court’s entry of summary judgment on behalf of the on-call hematologist was improper and required reversal.

The Third District issued a lengthy opinion holding that the circuit court’s entry of summary judgment was an error and relied upon the holding in Mackey v. Sarroca, 2015 Ill. App. 3d 130219 which set forth facts significantly different than those related to the on-call hematologist’s involvement in the patient’s care. The court also held that subsequent to a trial on liability against the on-call hematologist, a jury could determine the allocation of the $1.6 million and what portion of the prior verdict would apply to the on-call hematologist.

Krista filed a Petition for Rehearing in the Third District arguing, among other things, that the Third District’s reversal of the circuit court’s summary judgment in favor of the on-call hematologist was erroneous wherein the court misapplied the facts, and that the court’s holding that the prior jury verdict which was improperly allocated among defendants in the first place, could not be applied to the on-call hematologist where such was an unconstitutional denial of a defendant’s right to a jury trial on liability and damages. Krista asserted that the only appropriate rulings were that which affirmed the entry of summary judgment, or that which reversed the jury’s verdict and remanded the entirety of the case for a re-trial, which would include the on-call hematologist.

The Third District granted Krista’s petition for rehearing and reversed its previous opinion and holding. In its ruling on rehearing, The Third District affirmed the circuit court’s entry of summary judgment in favor of the on-call hematologist; acknowledged that the holding in Mackey v. Sarroca was inapplicable; held that the on-call hematologist did not owe a duty to the patient to whom he provided no treatment or diagnosis; that the jury’s allocation of damages in a medical malpractice claim absent third party or cross complaints was erroneous but did not require reversal; and affirmed the jury’s verdict entered in the Plaintiff’s favor.

Learn more about the decision here.

Krista’s practice focuses on the defense of hospitals, physician groups, long-term care facilities, assisted living facilities, community integrated living arrangements (CILA) and individual healthcare providers. In addition to litigation, Krista’s practice includes insurance coverage and appeals. Krista’s appellate and insurance coverage experience enables her to provide clients with unique, thorough and comprehensive opinions as to the many trial issues, theories, defenses and arguments inherent in the litigation and trial process.