As a medical malpractice attorney in southern Illinois, I was interested to read a recent Illinois Supreme Court decision permitting a medical malpractice lawsuit to go forward. In Wilson v. Edward Hospital et al., Brandon and Daphne Wilson sued the hospital, two doctors, a nurse and the doctors’ practice groups over Brandon Wilson’s brain injury allegedly caused by bad medical decisions. Wilson, a minor, vomited and breathed in the vomit during surgery to repair a broken leg, causing oxygen deprivation leading to brain damage. The trial court granted summary judgment to the two doctors, saying they were not actual agents of the hospital but that there should be a trial on whether they were apparent agents. The hospital used this to argue that the issue had been decided, but the Illinois Supreme Court ruled that the issue must still be tried.
Brandon was in a car accident in 2003. He was taken to Edward Hospital, where he underwent surgery to repair a broken femur. Unfortunately, during the surgery, he asphyxiated on vomit, a known risk of general anesthesia. The result was an anoxic brain injury. That was the basis for the 2004 lawsuit by Brandon and his mother, Daphne Wilson, who alleged that the surgery was not an emergency and therefore the doctors were negligent for not waiting until Brandon had fasted sufficiently to avoid the vomit risk. Their suit alleged that doctors were the hospital’s agents in law or in fact, making the hospital liable, but the hospital disagreed and moved for summary judgment. The trial court found that the doctors were not actual agents, but a triable issue existed on whether they were the hospital’s apparent agents. The Wilsons dismissed the issue voluntarily in 2009, but re-filed in 2010, alleging hospital liability through the doctors’ apparent agency. The hospital moved to dismiss, arguing that the new suit was barred by res judicata because of the actual agency decision from the first suit.
The trial court did not dismiss, but certified a question to the appellate court: are actual and apparent agency separate claims for the purposes of res judicata and the high court’s own prohibition on claim-splitting? That court said yes, which would have ended the lawsuit. They appealed to the Illinois Supreme Court.
That court reversed, reviving the lawsuit. The bar created by res judicata bars issues that could have been decided as well as those that actually were, it said. However, in this case, the Illinois high court found that there is no identity of action, one of the three requirements for res judicata. In ruling the other way, the appellate court had relied on past cases that prohibited splitting claims into different cases with the same facts and legal theories. But the Supreme Court said the summary judgment ruling on actual agency did not dispose of the parties’ rights as to apparent agency. Actual agency and apparent agency are not causes of action, it said; they are elements of proof of the underlying negligence claim. Thus, they are not separate for res judicata purposes, the court said, and the Wilsons are not barred from filing their new lawsuit.
As a St. Louis injury attorney, I’m always pleased to see plaintiffs get a new chance to recover for serious injuries like this one. Oxygen deprivation creates brain injuries, which means Brandon Wilson is likely to suffer at least some permanent, lifelong disability. This ruling paves the way for him and his mother to sue not only the doctors, but the hospital where the surgery took place. This is important because the doctors were unlikely to be making their medical decisions in a void; hospital policies likely influenced their choices. In addition, in a serious brain injury case, the very high expenses of treatment mean it’s best to have multiple avenues of recovery. In my work as a Missouri brain injury lawyer, I start each case by looking for all possible ways to recover.
If you or someone you love suffered a serious injury or illness because of a medical professional’s bad decisions, you may have a medical malpractice claim. To tell us your story and learn more about your options, call Carey, Danis & Lowe today for a free, confidential consultation. You can call us toll-free at 1-877-678-3400 or send us a message online.
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