Panel Revives Med-Mal Lawsuit
by Steinberg Goodman & Kalish | Feb 22, 2022 | Firm News
Attorneys' problems ruled factor in issues that led to dismissal.
EMMA OXNEVAD
A man's petition can proceed in a medical malpractice case over his late wife's treatment after a panel of the 1st District Appellate Court ruled that any lack of due diligence was the fault of his former attorneys.
Justice James Fitzgerald Smith delivered the judgment of the court.
In July 2015, Lisa Karavos retained the now-dissolved law firm Woerthwein & Miller to represent her in a personal injury action against Northwest Community Hospital, Intuitive Surgical, Inc., and Randall Kahan, an OB-GYN who was involved in the treatment of her cervical cancer.
She alleged that in July 2013, she sustained injuries after a series of procedures performed by Kahan, who used a robotically assisted surgical system manufactured by Intuitive.
Karavos died in April 2017 of cervical cancer.
Her husband, Theodore, filed a motion to spread her death of record. He then filed an amended complaint in Cook County Circuit Court as the independent administrator of her estate in November 2017.
The complaint included claims under the Illinois Wrongful Death Act, Illinois Survival Act and the Illinois Family Expense Statute.
It sought damages for Lisa's pain and suffering prior to her death, as well as wrongful death damages to her husband and children for their loss, according to Karavos' lawyer.
Karavos' cause of action was dismissed for want of prosecution after his attorneys did not appear for a scheduled management conference and did not file the request to reinstate within the requisite 30 days.
Unbeknownst to Karavos, his attorneys were unable to manage the case due to various circumstances, according to the order.
Theodore Arthur Woerthwein, who originally handled the case, absconded with $237,000 in client settlement funds and abandoned the firm in June 2018, according to the order. He was disbarred in May 2019.
In April 2018, his former law partner, John Miller, was diagnosed with advanced prostate cancer. Miller, who was semi-retired, learned of Woerthwein's actions and assumed responsibility for the case.
Miller attested that he was undergoing treatment for the cancer that caused "mental confusion, memory loss, and other cognitive and physical deficits," which led to him missing the hearing that resulted in the dismissal.
Under new counsel, Karavos filed the instant petition under Section 2-1401 of the Code of Civil Procedure seeking to vacate the dismissal of his action in October 2019.
Judge Moira S. Johnson of the Cook County Circuit Court denied the petition, stating that he had failed to pursue his cause of action with due diligence.
Karavos appealed, arguing that the circuit court abused its discretion, or in the alternative, that principles of equity require that his cause of action be reinstated.
In the panel's non-precedential Rule 23 opinion, filed Tuesday, Smith wrote that to be entitled to relief under Section 2-1401, the plaintiff must establish the existence of a meritorious claim, due diligence in presenting his claim to the circuit court in the original action, and due diligence in filing the Section 2-1401 petition, citing McGinley Partners, LLC v. Royalty Properties, LLC, 2018 IL App (1st) 172976.
He agreed with Karavos' argument that Miller's cancer and Woerthwein's abandonment of the firm are "reason- able excuses" to any lack of due diligence in the prosecution of his case and that equity requires that the panel waive the requirement of due diligence.
"In the present case, we find that any failure by the plaintiff to exercise due diligence was caused by circumstances beyond his control and that therefore 'justice and good conscience' required the circuit court to grant his section 2-1401 petition and vacate the dismissal of his action for want of prosecution," he wrote, citing Smith v. Airoom Inc., 114 Ill. 2d 209, 220-21 (1986).
Smith also noted the "extraordinary circumstances" regarding Karavos' former counsel.
"Fairness requires that the plaintiff be given his day in court, and that he not be penalized for the brazen misconduct and serious illness of his former counsels, of which he could not have been aware, and against whom he cannot now recover," Smith wrote.
The panel reversed and remanded the case for further proceedings.
Justices Nathaniel R. Howse and Cynthia Y. Cobbs concurred in the judgment.
Sarah L. Riess of Steinberg, Goodman & Kalish represented Karavos.
"I'm very grateful that my client is going to have his day in court," she said. "To penalize my client for the brazen misconduct of his first lawyer and the illness of the second lawyer would have been unjust, and I think the appellate court recognized that."
Scott L. Howie, Brian T. Henry and Sommer R. Luzynczyk of Pretzel & Stouffer represented Kahan. Howie declined to comment.
The case is Karavos v. Northwest Community Hospital, 2022 IL App (1st) 210383-U.