Posted On: May 11, 2007 by Christopher T. Hurley

Hurley McKenna & Mertz wins medical malpractice decision regarding expert testimony and medical bills

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.

Court: Expert should have testified on medical bills

By John Flynn Rooney
Law Bulletin staff writer

A 1st District Appellate Court decision provides guidance about what is required to get into evidence expert testimony on past and future medical expenses, the plaintiff's attorney said Monday.

The opinion issued Friday marks the first time the Illinois Appellate Court has interpreted a 2005 Illinois Supreme Court decision that codified collateral source rules on medical bills, Arthur v. Catour, 216 Ill.2d 72, the plaintiff attorney added.

''This decision goes a long way in clarifying any ambiguities for plaintiffs seeking recovery for medical expenses that have been partially paid by a third party,'' said Christopher T. Hurley, the plaintiff's attorney.

''The Supreme Court has made it clear that the collateral source rule is alive and well in Illinois,'' said Hurley, a principal of Hurley, McKenna & Mertz P.C. in Chicago. Hurley and his partner Mark R. McKenna represented Betty Kunz. ''This Appellate Court decision provides a road map for plaintiffs to get their medical expenses into evidence.''

The collateral source rule states that if an injured party receives compensation for its injuries from a source independent of the tortfeasor, the payment should not be deducted from the damages that the tortfeasor must pay.

The 1st District panel returned the case to the lower court for a new trial on damages only. The jury had awarded a $3.2 million verdict, comprising damages for pain and suffering, disability and disfigurement, against Little Company of Mary Hospital and Health Care Centers .

The panel found that Cook County Circuit Judge Mary A. Mulhern should have allowed the expert's testimony about the reasonableness of past and future medical expenses, and unpaid medical bills into evidence.

Dr. Vincent Pateras testified at trial as the plaintiff's expert. Pateras testified that he was familiar with the necessary charges for dialysis services in the Chicago area, according to the plaintiff's appellate brief.

The lawyer for the hospital objected twice to Pateras' testimony regarding Kunz's medical charges. Mulhern sustained both objections on the basis of foundation.

Mulhern also denied the plaintiff's oral motion to explain her ruling on the issue. But Mulhern did state that Pateras had ''not demonstrated any experience at all in billing for these services,'' according to the plaintiff's brief.

Kunz's attorneys then provided an offer of proof that Pateras would have testified that Kunz's medical bills totaling $1.3 million were necessary for the kidney dialysis services Kunz received by the trial date. Pateras would have further testified that Kunz would need dialysis for the rest of her life costing $250,000 annually.

''In this case, Dr. Pateras' testimony on the subject was beyond the ken of the average juror and was of aid to the jury,'' Justice James Fitzgerald Smith wrote for the panel. ''Most people would not know the usual and customary charges of plaintiff's medical bills in the Chicago area.''

Citing the Arthur decision, the appeals court panel stated that ''to introduce an unpaid bill into evidence, a party must establish that the bill is reasonable for the services of the nature provided.'' Friday's decision added that a party seeking admission of an unpaid bill into evidence ''can establish reasonableness by introducing the testimony of a person having knowledge of the services rendered and the usual and customary charges for such services,' '' quoting from the Arthur opinion.

The hospital cited numerous cases for the proposition that the plaintiff also had to establish that Pateras was familiar with the billing practices of each provider. But the appeals court panel noted that the cases cited by the defendant were contract cases in which the parties were concerned with receiving their benefit of the bargain.

''Whereas in this case and cases like it, tort cases, we are concerned with making the victim whole by making the tortfeasor pay the reasonable medical expenses both past and future,'' Friday's decision said. ''Therefore, knowing the billing practices of each provider is not what is sought, rather, it is the reasonableness of the fees that is relevant.''

According to the decision, Kunz entered Little Company of Mary Hospital located in Evergreen Park on June 7, 2000, because a staph infection had developed in her right knee following knee-replacement surgery. She was administered an antibiotic for too long, which resulted in kidney damage requiring dialysis, the plaintiff alleged.

Kunz later recovered from the staph infection and returned to her Alsip home, but she has permanent kidney damage and requires dialysis three times a week.

''[T]he fact remains that Dr. Pateras possessed the knowledge beyond that of a lay person and his testimony could have aided the jury,'' the decision said.

Justices Denise O'Malley and Jill K. McNulty joined in the 16-page published opinion. Betty Kunz v. Little Company of Mary Hospital and Health Care Centers, et al., Nos. 1-06-1707 & 1-06-1814, consolidated.

Hugh C. Griffin, who recently left Lord, Bissell & Brook and joined Hall, Prangle & Schoonveld LLC in Chicago as counsel, represents Little Company on appeal. Griffin could not be reached for comment.

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