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Medical Malpractice Motion 20 - plaintiff's opposition to remittitur of judgment - Part 3

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XI. Plaintiffs Were Properly Permitted To Amend Their Complaint According To The Proofs

Illinois statutes afford parties wide latitude in making amendments to pleadings. The following sections of the Illinois statute on “Amendments” state:

At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant dismissing any party, changing the cause of action or defense or adding new causes of action or defenses, and in any matter, either of form or substance, in any process, pleading, bill, of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross claim. 735 ILCS 5/2-616 (a).

A pleading may be amended at any time, before or after judgment, to conform the pleadings to the proofs, upon terms as to costs and continuance that may be just. 735 ILCS 5/2-626(c).

Defendant hospital states that it was prejudiced and surprised by a “significant departure from plaintiffs' theory of injury.” (Defendant Post-Trial Motion, p. 52.) Defendants state the “departure” in theories is based on plaintiffs' change in the nature of injury from contre-coup injury through blunt force trauma to “significant jarring” or other injury as testified by defendant's expert, Dr. Mary Case. (Tr. 1329 and 1330.) However, as stated above, plaintiffs may amend a pleading at any time to conform the pleading to the proofs. Moreover, in this instance, defendant cannot claim unfair surprise and prejudice when the complaint was amended to contain the statements of defendant's own controlled expert witness. Defendant itself states that Dr. Case's opinion regarding the “jarring” was disclosed nine (9) monthsbefore trial. (Defendant Post-Trial Motion, p. 55.)

XII. Rule 137 Sanction Imposed On Defendant Hospital Were Warranted And Appropriate In Regard To Defendant And Defense Counsel Misconduct

For reasons unclear to plaintiffs, defendant hospital has chosen to request a judgment notwithstanding the verdict on the Court's Rule 137 sanctions imposed on the hospital. Though it is plaintiffs' belief that such a request is inappropriate, plaintiffs will respond to defendant's submission on this issue.

Ironically, defendant refers to the history of its misconduct and the ensuing consequences at trial and post-trial as “tortured.” Plaintiffs will again recite the facts that lead to defendant's characterization of the sequence of events.

As this Court is well aware, plaintiffs filed a medical negligence complaint against Memorial Hospital of Belleville and eight hospital nurses on February 3, 2000. The event out of which the lawsuit arose occurred on the night of February 24, 1999, when the decedent, Joyce Cretton, was transferred from Memorial Hospital's ICU unit to the IMCU unit. Plaintiffs alleged that Memorial Hospital, by and through its agents, servants and employees, deviated from the standard of care: 1) in negligently and carelessly transferring Joyce Cretton to her IMCU bed; 2) in negligently and carelessly failing to afford adequate assistance for the transfer, 3) in negligently and carelessly allowing Joyce Cretton to fall during the transfer; and 4) in negligently and carelessly failing to inform anyone of Joyce Cretton's fall during the transfer.

Attorney Doreen Graham and the law firm of Moser and Marsalek. P.C., filed their entry of appearance for all named defendants on March 6, 2000. On April 3, 2001, plaintiffs served their First Interrogatories To Defendants and First Request For Production To Defendants. At that time, plaintiffs submitted the following interrogatory:

25. Please Identify by full name, current (or last known) residence address and current employer of the nursing supervisor at defendant hospital known as Phil (last name unknown) who discussed the problems encountered during the transfer of decedent from the ICU to the IMCU on February 24, 1999 with plaintiff, Cheryl Cretton.

This interrogatory was specifically crafted in an effort to determine the identity of a nursing supervisor. Plaintiff, Cheryl Cretton, had spoken with this supervisor shortly after her mother, Joyce Cretton, reported having been dropped during the transfer process. This conversation, as reported by Cheryl Cretton, was well known to the hospital even at the outset of the litigation.

Memorial Hospital answered plaintiffs' interrogatories on July 19, 2001. In response to plaintiffs' interrogatory number 25, Memorial Hospital answered as follows:

Memorial denies that the substance of the conversation was as described in this interrogatory and the only nursing supervisor named “Phil” is Phillip Schoreide who is no longer employed at Memorial. His last known address is 9801 Roanoke Parkway, Kansas City MO 64112. His current employer is Truman Medical Center. (Emphasis added.)

The Answers To Plaintiffs' First Interrogatories were signed by Doreen Graham, the attorney of record for the hospital. More importantly, the pleading was verified under oath by Terry Walther, an authorized agent of Memorial Hospital.

Accompanying Memorial Hospital's July 19, 2001 interrogatory answers was a privilege log. The pleading was signed by Margaret Lowery, General Counsel for Memorial Hospital. This privilege log purported to identify several documents claiming a privilege under the Medical Studies Act. 3

Of special note for this are documents 21-22 of the privilege log. 4 These documents were not disclosed by Ms. Lowery and were described by counsel for Memorial Hospital as follows:

QMCS request for information & typewritten notes from unknown author.

The deposition of Cheryl Cretton was taken on July 24, 2001. In her deposition, Cheryl Cretton described the conversation with the nursing supervisor named “Phil.” Ms. Cretton described that conversation in detail and testified that she told “Phil” about the allegation of the fall during the transfer process.

On August 14, 2001, Greensfelder, Hemnker & Gale, P.C. and Edward S. Bott, Jr. entered their appearance for all named defendants. Plaintiffs filed a Motion To Compel the production of the privileged documents on August 31, 2001. 5 A hearing was held on September 6,2001 pursuant to plaintiffs' Motion. The judge assigned to the case at that time, Stephen Kemam, ordered, in part, that Memorial Hospital submit further documentation to plaintiffs in support of the privilege log.

In the meantime, the deposition of Phillip Schorfheide was taken on September 25, 2001. 6 Although Phillip Schorfheide was no longer employed by Memorial Hospital, Mr. Bott and Ms. Lowery met privately with Phillip Schorfheide prior to the deposition. Mr. Bott and Ms. Lowery prepared Mr. Schorfheide for his deposition. Mr. Bott defended Mr. Schorfheide at the deposition.

When plaintiffs' counsel initially questioned Phillip Schorfheide regarding the conversation which Cheryl Cretton claimed to have had with Mr. Schorfheide, Mr. Bott directed him to the privilege log. This is proof that Mr. Bott was well aware of the documents contained within that file. When specifically asked whether Cheryl Cretton had ever made an allegation that her mother had been dropped during the transfer process. Phillip Schorfheide repeatedly stated, throughout his deposition, that he was never informed of an allegation that Joyce Cretton had fallen or been dropped.

On October 9, 2001, pursuant to the Order previously entered by Judge Keman regarding supplemental information, Mr. Bott, on behalf of Memorial Hospital, filed the affidavit of hospital employee, Kerry Wrigley. This affidavit stated that the Quality Management Council Subcommittee which conducted the peer review process related to the death of Joyce Cretton was initiated “on or about March 3, 1999.” That affidavit also specifically stated, inter alia, that “documents Bates numbered PL 21-22... are handwritten notes by an unknown author.”

Plaintiffs' counsel has actively litigated medical negligence cases since 1982. In that time period, plaintiffs' counsel had never had reason to believe that the personnel at the Memorial Hospital of Belleville would engage in any form of dishonesty. In fact, throughout the years, plaintiffs' counsel was familiar with Terry Walther and had been involved in cases with both Doreen Graham and Edward S. Bott, Jr. Therefore, plaintiffs' counsel did not challenge any of the affidavits filed on behalf of Memorial Hospital. Instead, plaintiffs' counsel relied on the sworn affidavits and representations

Plaintiffs' counsel continued to prepare this case for trial during the following two years. As the Court aptly notes in its March 17,2004 Order: “[Plaintiffs were preparing their case without knowledge of the false early disclosures and unaware of the lies told by Schorfheide in deposition.” Additionally, “there were no red flags that would alert the

At the July 17, 2003 pre-trial conference, the issue of the Cheryl Cretton/Phil conversation was raised in pretrial motions. The hospital filed a motion in limine to keep out the alleged statements which Cheryl Cretton made to Phil. At the July 17, 2003, hearing, Judge LeChien (the judge who was assigned to the case after Judge Kernan retired) specifically asked Mr. Bott whether Memorial Hospital disputed the statements made by Cheryl Cretton to Phil Schorfheide with regard to whether her mother “fell or was dropped or was injured.” In response, Mr. Bott replied, “Yes.” Moreover, Judge LeChien then specifically inquired whether Mr. Bott had read the QMCS file to support his representations. When the Court asked Mr. Bott if he had looked at the QMCS documents related to his question, Mr. Bott also replied, “Yes.” (See July 17, 2003, Report of Proceedings, page 16, lines 23-24 and page 17, lines 1-20.)

As this Court is aware, plaintiffs requested an in camera review ofthe documents claimed as privileged. The Court, as a part of the pretrial process, ordered the in camera review of the documents claimed as privileged. It was during that document production that this Court “exposed the hospital's

Once the Court reviewed documents #21 and #22, which had been described in the Privilege Log, the Court immediately determined that the hospital “knew the testimony of [Phillip Schorfheide] was a lie and [the hospital had] failed in its obligation [to] correct the perjury.” More specifically, the Court found that certain portions of documents #21 and #22 were not privileged by the Medical Studies Act and released those portions to the plaintiffs. The Court also determined that the name “Phil” appeared on document #22. When considered with the other documents contained in the file, as well as the reported conversation which Cheryl Cretton had described from early on in the litigation, the Court could easily conclude that “Phil” was the author of documents #21 and #22. In other words, the representation that these documents were by an “unknown author” was absolutely false. Upon revelation of the truth, plaintiffs' counsel immediately moved for sanctions. In an attempt to “undue” the prejudice to plaintiffs, the Court imposed sanctions against the hospital.

Trial commenced on August 4, 2003. During trial, Phillip Schorfheide's testimony had to be corrected from his prior deposition. Additionally, plaintiffs' counsel was never quite sure whether the hospital witnesses would continue with the testimony given during their depositions, or change their testimony to reflect the “corrected” account of Phillip Schorfheide. At the conclusion of the evidence, the jury returned a verdict in favor of the plaintiffs on the survival action only, awarding plaintiffs $950,000.00.

Prior to the jury's verdict, plaintiffs filed their Motion For Sanctions Pursuant to Illinois Supreme Court Rules 137 and 219(c). Pursuant to that motion, this Court has held numerous hearings. At the conclusion of the hearings, this Court entered its Order on March 17, 2004 and has allowed plaintiffs leave to supplement the record in support of plaintiffs' request for attorneys' fees and expenses.

Illinois Supreme Court Rule 137 provides, in pertinent part:

If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other paper including a reasonable attorney fee. [Emphasis added.]

Rule 137 “serves to penalize the litigant or attorney who pleads false or frivolous matters, or who brings suit without any basis in the law.” In Re Marriage of Schneider, 298 Ill.App.3d 103, 697 N.E.2d 1161, 232 III.Dec. 231 (1st Dist. 1998). When making a determination of monetary sanctions pursuant to Rule 137, the trial court must consider the following: 1) the degree of bad faith by the opposing party, 2) whether an award of fees could deter others from acting under similar circumstances; and 3) the relative merits of the positions. See Penn v. Gerig, 334 Ill.App.3d 345, 354, 778 N.E.2d 325, 333, 268 III.Dec. 339, 347 (4th Dist. 2002). Plaintiffs had the burden of presenting sufficient evidence from which the Court can render a decision as to the reasonableness of the requested fees and expenses. See Chicago Title & Trust Co. Trustee Under Trust No. 89-044884 v. Chicago Title & Trust Co Trustee No. 1092636, 248 Ill.App.3d 1065, 1072, 618 N.E.2d 949, 954, 188 III Dec. 379,384 (1st Dist. 1993).

This Court specifically found that short of conscious disregard and utter indifference for the truth explains how the hospital could make the connection between Cheryl Cretton and Phil Schorfheide but fail to associate him with his notes. The Order entered by this Court on March 17, 2004 further describes the violation of Rule 137 as “unvarnished fabrication,” “a meritless privilege objection,” “corruption of the self-evaluation process,” “perpetuation] the chaos of the early discovery censorship,” “discovery subterfuge,” and “perjury,” to name a few. Clearly, the degree of bad faith in this case went far beyond mere mitake and was an intentional act of misconduct

Finally, there can be no doubt about the relative merits of the parties' positions. Plaintiffs reiterate that the sanctionable misconduct of the Memorial Hospital attorneys began as far back as the initial discovery stages of this litigation, when plaintiffs first propounded the interrogatory inquiring about Cheryl Cretton's conversation with nursing supervisor “Phil.” As stated above, Memorial Hospital's false pleading in response to plaintiffs' interrogatory was filed on July 19, 2001 -almost three years ago, and only three months after counsel Doreen Graham entered her appearance for Memorial Hospital. Also accompanying Memorial Hospital's discovery responses at that time was the false privilege log, signed by Margaret Lowery, in-house general counsel for Memorial Hospital, and verified under oath by a hospital representative. In essence, there was utter disregard for the rules.

Moreover, Edward S. Bott, Jr. entered his appearance on behalf of Memorial Hospital just one month after the false discovery responses were filed. Nevertheless, in the ensuing period of time between August 2001 and August 2003, Mr. Bott never sought to correct the fraudulent pleadings. Instead, Mr. Bott joined the conspiracy, accepting the party-line that the Cretton/Schorfheide conversation never occurred.

When considering whether to award attorneys' fees, the “reasonableness” of attorneys' fees is generally determined by several factors. “In assessing the reasonableness of fees, the trial court should consider a variety of factors, including the skill and standing of the attorneys employed, the nature of the case, the novelty and difficulty of the issues involved, the degree of responsibility required, the usual and customary charge for the same or similar services in the community, and whether there is a reasonable connection between the fees charged and the litigation.” Clay v. County of Cook, 325 Ill.App.3d 893, 902, 759 N.E.2d 6, 13, 259 III.Dec. 526, 533 Dist. 2001). (Citation omitted.) The trial court is permitted to use its own knowledge and experience to assess the time required to complete particular activities.” Olsen v. Stanlak, 260 Ill.App.3d 856, 866, 632 N.E.2d 168, 176, 198 III.Dec. 109, 117 (1st Dist. 1994). “When imposing sanctions, a court has several options, including a ‘warm friendly discussion on the record, a hard-nosed reprimand in open court, compulsory legal education, monetary sanctions, or other measures appropriate to the circumstances.” Heckinger v. Welsh, 339 III.App.3d 189, 192, 790 N.E.2d 904, 906, 274 III.Dec. 131,133 (2003).

The Fifth District has held that for purposes of determining statutory attorney fees, “the term ‘reasonable’ applies regardless of the nature of the client's contractual relationship with his attorney.” Blankenship v. Dialist International Corp., 209 Ill.App.3d 920, 927, 568 N.E.2d 503, 507, 154 III.Dec. 503, 507 (5th Dist. 1991). However, courts are to consider the contractual foe arrangement between the attorney and client as only one factor in the determination. Id.

In other cases awarding attorneys' fees, the court's reliance on contingency fee contracts was not considered to be arbitrary. See e.g. Dunn v. Illinois Central Gulf Railroad Co., 215 Ill.App.3d 190, 202, 574 N.E.2d 902, 910, 158 Ill Dec. 789, 797 (4th Dist. 1991). “In those instances where a contingency fee represents the standard remuneration for the type of case involved, the contingency fee may adequately serve as the final award.” Renken v. Northern Illinois Water Co., 191 Ill.App.3d 744, 750, 547 N.E.2d 1376, 1380, 138 Ill.Dec. 755, 759 (4th Dist. 1989).

Fees may be recoverable under Rule 137 when they are “lumped” and even for unaccounted time entries. Riverdale Bank v. Papastratakos, 266 Ill.App.3d, 203 Ill.Dec. 180, 639 N.E.2d 219 (1994). A party's counsel is not required to record every minute of time spent on a case. Rather, a party should identify the general subject matter involved. Ashley v. Scott, 266 Ill.App.3d 302, 306, 203 Ill.Dec. 757, 640 N.E.2d 677. 680 (1994). Fees incurred in prosecuting the motions for sanctions are also recoverable. Bosch Die Casting Co. v. Lunt Manufacturing Co., 236 Ill.App.3d 18, 33, 177 Ill.Dec. 476, 603 N.E.2d 546, 556 (1992).

Plaintiffs filed several submissions in support of their fees including: Plaintiffs Submission In Support Of Motion For Sanctions Pursuant To Illinois Supreme Court Rule 137 ; Plaintiffs' Petition For Attorney's Fees And Expenses Pursuant To Illinois Supreme Court Rule 137 ; Plaintiff's Amended Petition For Attorney's Fees And Expenses Pursuant To Illinois Supreme Court Rule 137 as well as corresponding affidavits, records and time logs.

As the Court initially noted in it March 17, 2004 Order that the “pervasiveness” of Memorial Hospital's misconduct “had its genesis in the July, 1999 discovery fraud and falsity.” Therefore, after taking into consideration the extensive brief and attachments filed by both parties and after a Court hearing on the matter, this Court awarded reasonable attorneys' fees in its March 7, 2005, Order in the amount of $125,000.00 and costs in the amount of $4,089.90. The total award of sanctions was therefore $129,089.90.

The Court looked to several factors, “including the skill and standing of the attorneys employed, the nature of the case, the novelty and difficulty of the issues involved, the degree of responsibility required, the usual and customary charge for the same or similar services in the community, and whether there is a reasonable connection between the fees charged and the litigation.” Clay v. County of Cook, 325 III.App.3d 893, 902, 759 N.E.2d 6, 13, 259 Ill.Dec. 526, 533 (1“ Dist. 2001). (Citation omitted.) “The trial judge is permitted to use his own knowledge and experience to assess the time required to complete particular activities....” Id.

Plaintiffs' counsel is one of a handful of practitioners in southern Illinois who has the experience and expertise in handling these kinds of matters. Such litigation, in and of itself, is more complicated and requires a higher level of litigation experience. Special rules enacted by the Illinois legislature require expert review prior to filing the litigation. The political climate for medical malpractice cases over the past few years has made successful prosecution of the claims more difficult.

More importantly, in this case, there were significant obstacles regarding proof of the event claimed to have occurred by Joyce Cretton, i.e. the fall during transfer. Cretton, the victim who claimed she had been dropped, had died. By the time plaintiffs were able to determine the name of the roommate who allegedly reported the incident to Cheryl Cretton, that roommate had also died. The hospital personnel claimed no knowledge of the incident. More importantly, the medical record did not contain any mention of such an incident. Therefore, plaintiffs' counsel was left with the problem of proving that Joyce Cretton had been dropped or had fallen during the transfer from ICU to IMCU based on the statement of Cheryl Cretton and the finding of a subdural hematoma at autopsy.

The plaintiffs' task was even more difficult as a result of the hospital's cover up of the evidence. As the Court noted in its March 17, 2004 Order, “[t]he impact on the case was massive.” Plaintiffs' counsel undertook a significant responsibility in preparing the case for trial and faced reat risk in losing the litigation.

More than two years of work on this case went by from the time the discovery responses and privilege log were filed to the time of trial, when plaintiffs first became aware that a violation had occurred. As a result, the false discovery responses filed by Memorial Hospital became soinextricably connected to the way in which this litigation advanced to trial, that an effort to single out plaintiffs' counsel's efforts related solely to the hospital's conduct was extremel difficult.

Like most attorneys that handle medical malpractice cases, counsel for plaintiffs represented the Cretton family based on a contingency fee agreement. Unlike other attorneys that may keep their time records so that clients may be billed for services rendered, plaintiffs' attorneys do not generally keep a record of time spent on a case - as they are only compensated if they succeed in obtaining a favorable result for their client(s), not on time spent. This type of arrangement is the common business practice of counsel for plaintiffs and was the practice in this case.

Although Illinois law sets a presumptive fee in medical malpractice cases, 735 ILCS 5/2-1114 allows the Court certain discretion to review the attorney fees. Specifically, when an attorney provides ‘extraordinary’ services involving more than usual time and participation, the attorney may apply to the Court for an amount in addition to the statutory formula. As the Court has aptly noted, such “extraordinary” services were provided to plaintiffs in this extraordinary case:

In conclusion, the false pleadings filed by the hospital are the cornerstone of the hospital's defense and arc attached on the bottom and the top by a course of conduct employed by the hospital and its attorneys. At the bottom, there is the inadequate investigation into the Cretton complaint and diversion of the truth from the medical record. Attached to the top, is a continuing course of conduct to hide evidence document prepared by Schorfheide and machination of that evidence at trial. Since the verdict, enormous effort has been expended in post-trial proceedings that eventually let the sun shine on hospital's Rule 137 violations and laid bare the darker territory hidden below the surface and behind the facade.

(See March 7, 2005, Order, p. 4.)

Without even factoring in the sanctionable conduct by the hospital's counsel, the Cretton case was, as noted previously, not a simple, clear-cut case of negligence where all parties agree on the facts but dispute causation or breach of duty. Rather, plaintiffs had to prove that the triggering event even occurred. Again, there was no report of a “drop” or “fall” in Joyce Cretton's hospital records' Plaintif had nothing in the patient's own record to substantiate such an allegation. Only the autopsy port of Dr. Harry Parks was available to indicate that Joyce Cretton died as a result of a subdural hematoma , consistent with a drop or fall-type of injury. During the discovery deposition of Dr. Parks, taken by Mr. Bott, the hospital's questioning was aimed at disputing the allegation of the fall. This effort by the hospital's counsel ignored the information kept secret only by the conspiracy of the lawyers representing the hospital. More importantly, this effort exacerbated the impact of the discovery abuse.

Additionally, as a direct consequence of the hospital's misconduct, plaintiffs' counsel have spent months arguing over this post-trial motion. This effort included a post-trial deposition and filing supporting submissions to this Court. Therefore, the costs and fees awarded by this Court were reasonable and appropriate.


For the foregoing reasons, Plaintiffs respectfully request that this Court deny defendant Memorial Hospital's motion for judgment notwithstanding the verdict deny the motion for a new trial on Plaintiffs' Survival Act claim, deny the motion for remittitur or a new trial on damages for Plaintiffs' Survival Act claim, and deny the request for an order vacating the Rule 137 sanctions issued by this Court.

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