Posted April 22, 2016 12:21 PM
Updated April 27, 2016 9:55 AM
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Estate of confusion over $22M verdict

By Lauraann Wood
Law Bulletin staff writer

Jeanette Turner wanted to tell her story no matter how hard she had to work to do it.

Sometimes her words came out in garbled noises. Sometimes they came in broken syllables. And sometimes they needed to be spelled.

Speech was not the only way in which Turner struggled physically. Whether she leaned forward to sip from a straw or tried to connect her phone to a power cord, the muscles controlling her voluntary actions would shake, making even the most quotidian movements a challenge.

This tremor was an effect of the permanent brain damage she sustained in 2005 after a blood clot lodged in her tracheotomy tube — blocking the flow of air and depriving her brain of oxygen for about 20 minutes.

Suddenly, the once-married, dual-degree-holding, 42-year-old mother of six became a woman dependent on others for help with the most everyday tasks. Even after months of physical therapy, it was clear she would require assistance for the rest of her life.

But this didn’t stop her from fighting. She would spend the next 10 years in a legal battle against Mercy Hospital in Cook County Circuit Court, alleging in a 2006 lawsuit that the failure of several physicians to monitor and maintain her tracheotomy tube caused her life-altering injury.

Despite her affected speech, Turner gave a videotaped deposition and even took the stand to testify during the 3½-week trial in Cook County Circuit Court last year before Circuit Judge Clare Elizabeth McWilliams.

She wanted her words to be heard — no matter how forced or broken they may be.

Turner, however, would never learn the favorable jury verdict in her case — a case that involved more than 90 depositions, spent a year delayed in the circuit clerk’s computer system, endured a change with the defense’s legal counsel and saw nine years of litigation before the parties were ready for trial.

On Dec. 3, 2015, the night before a 12-person jury would return a $22.1 million verdict, Turner died from a severe injury she sustained during a fall about a week earlier. She was 52 years old.

Turner’s unique lawsuit sets a potentially precedent-setting example for what happens when a plaintiff dies after trial but before a jury returns its verdict. It also begs the question: How long is too long for a case to be in litigation?

‘Like pulling teeth’

When Jeanette Turner arrived at Mercy Hospital in late February 2005, she suffered from a painful abscess in her mouth. The antibiotics a dentist gave her were failing to heal the infection, which caused swelling in her jaw and neck, so she went to the hospital for more treatment.

As she sat in Mercy’s waiting room, the abscess burst, filling her mouth with pus. Doctors rushed to her aid.

“When you see two guys running at you with their outside coats on, you know something is wrong,” Turner described during a videotaped deposition in August 2008, struggling to articulate her words.

Considering the swelling in her throat, physicians installed the tracheotomy tube to help Turner breath. There were several instances of bleeding around the tracheotomy site on her neck, even when she had mostly healed from the infection and was nearly ready for hospital discharge.

Five days after the breathing tube was placed, medical staff noticed the bleeding, and Turner woke up in the middle of the night coughing up blood through the tracheotomy tube.

As the bleeding continued, nurses paged the resident physician who placed the tube to address the problem. Eventually, Turner went into respiratory arrest with hospital personnel in her room.

The resident physician tried to clear her airway with a self-inflating bag but encountered resistance, so he waited several minutes for an anesthesiologist to arrive, fix the tube and help Turner breathe. Those 20 minutes without oxygen resulted in her permanent brain injury.

Turner spent about three more weeks recovering at Mercy before she was transferred to Schwab Rehabilitation Hospital. There, she would spend several months working to regain her strength and learning to live with the tremors that developed after her resuscitation from respiratory arrest.

Even after her therapy ended, it still took several tries and strong concentration to fit a colored block into its proper hole on a child’s block game. And she still needed two hands to put a plastic toy ring around a post — one to hold the post steady while the other hand fought against violent shaking to drop the ring.

The full extent of Turner’s improvement with therapy was apparent within a few months of her release from Mercy, and it was clear she would be wheelchair- or bed-bound and require living assistance for the rest of her life, said Stephen I. Lane, a partner at Lane & Lane LLC.

Lane represented Turner throughout her 10-year legal battle against Mercy Hospital, which was, as he described it, like “pulling teeth.”

Partner Benjamin E. Patterson and associate Katherine L. Dzik of Hall, Prangle & Schoonveld LLC represented Mercy Hospital. They could not be reached for comment.

Lane said what began as combing through one file turned into sifting through several to develop one cohesive record of Turner’s hospital stay, and several peculiarities arose during the discovery process.

While Turner was still in the hospital, Lane filed an emergency motion requesting an order that Mercy disclose every physician in charge of Turner's care on the night she went into respiratory arrest. The hospital disclosed several physicians but left out two key players.

One was the aforementioned anesthesiologist who fixed her tracheotomy tube, and the other was a nurse whose name appears during crucial moments in Turner’s medical records. This nurse became a central figure in Turner’s case because she was the only person besides Turner’s sister, Annette, who supported the idea that any significant bleeding ever occurred around the breathing tube. A lab test also supported this claim.

Beyond the hospital’s nondisclosure, Stephen and his brother Scott D. Lane, who also represented Turner, encountered incomplete records and notes that were either altered or written several hours after the incident.

They encountered a physical rewrite of a report from Mercy’s life-care expert, who assesses patients’ life expectancies and future care needs based on their conditions, while combing through the expert’s file after the defense decided against calling her to testify.

The Lanes had asked Mercy to produce any and all expert reports for trial, and the one they received indicated the expert testified Turner “apparently had complications with the tracheostomy.”

But a week later, the Lanes discovered a report dated earlier than the one the defense team produced in which the expert indicated Turner “had apparently developed a blood clot inside of her tracheotomy tube which resulted in an anoxic brain injury due to hypoxia.”

“Yes, it’s true that as a life-care planner, you don’t really care about how the brain damage occurred, but isn’t it interesting that the report they disclosed has the sequence of events written very benign and didn’t mention anything about a blood clot, and the report they didn’t disclose says exactly our theory of the case?” Scott Lane said.

It’s not that the hospital didn’t accurately depict that night’s events in Turner’s life story, Scott Lane said. Were Turner’s life a book, Mercy “did write that chapter” while documenting her hospital records, he said.

“Yet, during discovery and during their depositions and during their trial, their testimony, it was a rewrite of what that story was from what they wrote in 2005,” he explained.

Uncertain terms

Turner wasn’t the first personal-injury or medical-malpractice plaintiff to die before a judge or jury could reach a decision in her case. But she may be the first to die while a jury was actively deliberating whether or not to award her any damages.

As such, there is very little case law, if any, that dictates how the parties should proceed.

McWilliams ruled against declaring a mistrial when she learned of Turner’s death — the cause of which is still unknown and under investigation — and the jury knew nothing about the incident when it delivered its $22.1 million verdict on Dec. 4.

Had Turner died before the end of her trial, her lawyers would have been able to appoint a special administrator and continue the case as a wrongful-death action instead of one for medical malpractice.

And had she died after McWilliams entered judgment on a verdict, the entire award would stand as it would for any other living person.

After about a day and a half of deliberations, the jury awarded Turner $663,860 for medical care expenses, $114,562 for necessary help, $399,210 for lost earnings and benefits, $500,000 for pain and suffering, $2.5 million for disfigurement, $1 million for emotional distress and $2 million for loss of a normal life.

But the jury also awarded her more than $15 million in damages for a future she’s no longer alive to experience.

For that reason, Mercy Hospital contends in its post-trial motion that McWilliams should view Turner’s case similarly to how a federal court in the Southern District of Illinois saw Grizzell v. United States, 612 F. Supp. 2d 1000 (2009), and strike either the jury’s whole award or at least her future damages ($7,153,314 for future medical costs, $179,548 for future care, $425,102 for future lost earnings and benefits, $250,000 for future pain and suffering, $3 million for future emotional distress and $4 million for future loss of a normal life).

In Grizzell, plaintiff David Grizzell died shortly after a bench trial and before the judge could issue a ruling on his case. His son was appointed the administrator of his estate, but the judge adopted Missouri law when he ruled Grizzell’s son should not be entitled to any of his future damages award because “pain and suffering can occur only between the date of injury and the date of death.”

Mercy’s motion also seeks a declared mistrial, contending the jury should not have been permitted to continue deliberating and to return any verdict because “those abated claims were inseparable from at least one of [Turner’s] remaining claims for intangible damages and would likely impact the jury’s valuation of the other claims.”

But Joi Jefferson — one of Turner’s six children who was appointed the special administrator of her estate — argues McWilliams should enter judgment on the entire verdict because her mother’s case was closed and submitted to the trier of fact while she was still alive.

Jefferson argues her mother’s suit falls more in line with a federal case out of Mississippi, West v. U.S., 2009 L 2169852. In that case, the plaintiff who sued for an injury caused by medical negligence died after his case was fully tried but before the court had ruled on it.

As in Turner’s case, the family in West sought to substitute an estate administrator as the plaintiff, and the district court judge looked to a case from 1880 to enter judgment for the plaintiff — future damages and all — and apply it retroactively to the date the trial ended. In that case, Mitchell v. Overman, 103 U.S. 62, 64-66, the Supreme Court held a court could enter that kind of retroactive judgment if the plaintiff had been alive once his or her case had been submitted.

The only difference between those cases and Turner’s is the nature of their fact-finder, Jefferson argues, because it was a judge in the others and a jury in her mother’s.

But Jefferson contends that’s not a reason to distinguish Turner’s case from the others, since “each fact-finder had the same function: to weigh the evidence, all of which had been submitted, and then render a finding based on that evidence.”

McWilliams and the parties have not yet set a hearing date for the motion, and Stephen and Scott Lane declined to speculate on how Turner’s case would proceed through the circuit court.

System overload?

While it remains unclear how Turner’s case, Jeanette Turner v. Mercy Hospital and Medical Center, 06 L 5913, will proceed in the courtroom, what is clear is that her 10-year-old case will remain pending in the Law Division for some time.

Circuit Judge James P. Flannery Jr., presiding judge of the Law Division, said the case backlog to date has gotten smaller through the years, but there are bottlenecks built into the system simply by the rules of litigation.

For example, he said, parties are given weeks and sometimes months to respond to a lawsuit or particular motion. And that’s just one step. The simplest of cases can likely be filed and disposed of within 18 months, he said, but that time frame only grows with more complex legal issues that may need briefing and with the addition of new parties or law firms.

Considering those kinds of built-in delays, some Law Division judges agree the division is working as efficiently as it can to ensure cases don’t stall in one stage of litigation or another.

“I just don’t know how we could physically go any faster,” Circuit Judge Eileen M. Brewer said.

However, Circuit Judge Kathy M. Flanagan said she sees some potential areas for improvement.

While only about 5 percent of all cases that come through the division make it to trial, all cases have to go through discovery. And it’s that process that has become “so humongous that it actually has taken the place of the trial itself in many cases,” Flanagan said.

“People want to leave no stone unturned,” she said. And while it is certainly important to allow reasonable time to conduct thorough discovery, Flanagan said it becomes “an occupationwide problem” if attorneys are allowed to persistently conduct discovery that may not be useful or admissible come trial time.

“Proportionality is a big, big concept,” she said. “The discovery you want has to be proportional to the kind of case it is and the expense of retrieving it. We’ve just been mired in this continuous slogging on through paper, paper, paper. It has to come to an end because otherwise, you can go into infinity never having a final resolution of a case until parties just exhaust themselves.”

To alleviate those issues, she said, judges and lawyers should both remember the fundamental purpose for discovery.

“It is not supposed to be a game of hide and seek. It’s not supposed to be one-upmanship. It’s not supposed to be just total obstruction from one side to the other,” she said. “It’s supposed to be the parties are expected to work together to decide what is really necessary.”

While Jeanette Turner’s case has experienced several of these hindering factors throughout its life in the circuit court, Stephen Lane said he wouldn’t characterize any actions by either party as unreasonable.

But, considering what happened to Turner, he said there were likely some chances to move more quickly that no one identified as they set out to simply do their jobs.

“There were opportunities that I’m sure were in there that nobody thought about that could have resolved the case a little bit sooner, and a little bit sooner would have been enough,” he said. “I will go to my grave regretting that.”

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