Hurley McKenna & Mertz recently won a case in the Illinois Appellate Court, First District. This was a medical malpractice case brought on behalf of an elderly woman that was given too much of a dangerous antibiotic because of a nursing error. This antibiotic--gentamicin-- is known to cause kidney failure when given over long periods of time. Christopher T. Hurley and Mark R. McKenna tried the case to a jury in 2005 and were awarded $3.2 million for the loss of our client's kidney function. The appellate court upheld that verdict and further ruled that the trial judge should have allowed our expert to testify that the plaintiff's past and future medical expenses were customary, reasonable and necessary.
The trial court had ruled that the plaintiff's expert, a board-certified nephrologist and medical school professor, did not have enough experience as a billing person to testify about the plaintiff's bills. The appellate court disagreed, holding that the expert nephrologist's experience was greater than that of the average juror, and could have aided the jury in awarding the plaintiff damages for past and future medical expenses. The appellate court has ruled that the case should proceed for a new trial only on the issue of past and future medical expenses for the plaintiff, who will require dialysis for the rest of her life.
The issue of expert testimony regarding bills has become important in Illinois. Recent Illinois appellate and Illinois Supreme Court cases have suggested that when a government entity such as Medicare or Medicaid have paid only a negotiated, reduced portion of a plaintiff's medical bills, as is customary in a medical malpractice or personal injury case involving older or indigent individuals, the plaintiff must present expert testimony that the total bills are customary, reasonable and necessary.
The case was reported in the Chicago Daily Law Bulletin by John Rooney on May 7, 2007. Click below to see the Law Bulletin story.
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