Fifth District Illinois Med Mal Case Addresses Waiver On Appeal

An appellate opinion from the Illinois Fifth District raises two waiver questions that are notable for appellate practitioners. The case grows from Joyce Cretton’s treatment at Memorial Hospital of Belleville. She was admitted already with advanced stage chronic obstructive pulmonary disease. She died about two weeks later. Her estate sued the hospital, alleging that she “had been allowed to fall or was dropped and that as a result Joyce suffered a subdural hematoma that ultimately resulted in her death.”

After trial, a jury (1) awarded the estate just under $1 million on a survival action, and (2) found in favor of defendant on the wrongful death claim. A sanction of nearly $130,000 was entered against the hospital. The hospital appealed the jury award and the sanction. Ultimately, the appellate court affirmed the verdict and the sanction.

The following waiver issues are notable:

• Defendant argued that the $950,000 judgment was excessive. Defendant pointed out that plaintiff asked for only $500,000 in its closing argument. The appellate court ruled the argument was waived because “the defendant does not develop any cogent argument in its opening brief that, assuming an award of damages was permissible, the amount awarded was excessive . . .”

• The court took the hospital to task for its position that plaintiff made prejudicial comments during closing argument requiring a new trial. “. . . [T]he defendant has presented absolutely no evidence or argument regarding any allegedly ‘prejudicial and inappropriate’ comments during the trial and has therefore waived the issue on appeal.” The court was frustrated by the hospital’s failure “to include any of the pages of the report of proceeding cited by the defendant in support of this argument . . .” Nonetheless, the appellate court considered the argument because plaintiffs did not “raise the issue of the missing pages and do not contest the accuracy of the remarks to which the defendant takes exception.”

The whole case, Cretton v. Protestant Memorial Medical Center, No. 5-05-0474 (2/28/07), is right here.