The Michael J. Bilandic Building, Chicago, home of the Illinois First District Appellate Court
CHICAGO — A state appeals panel has upheld a $41 million medical malpractice verdict stemming from a stroke.
Craig Pierce, then 64, suffered a cerebral artery stroke in early 2016. According to court records, OSF St. Francis Hospital admitted Pierce in February with pneumonia and sepsis. During his stay, Pierce suffered an acute kidney injury following a CT scan, which led to a catheter for short-term dialysis. Doctors diagnosed atrial fibrillation and prescribed a blood thinner to prevent a stroke, but records show he never reached an international normalization ratio of the drug.
After discharge, Pierce continued dialysis. When that finished, Pierce had the catheter removed and was told to stop taking the thinner. The stroke happened a few days later, which prompted a flight to an OSF hospital where surgeons removed skull fragments. But the stroke’s catastrophic impact extensively damaged his cognitive abilities, caused left-side paralysis and also aphasia that kept him from speaking.
In February 2020, his wife, Susan Pierce, filed a negligence complaint in Cook County Circuit Court against Dr. Sudha Cherukuri, Fresenius Medical Care of Illinois, the Renal Intervention Centers and others, as well as a loss of consortium claim for Susan. They also named OSM Multi-Specialty Group as respondents in discovery.
Cook County Circuit Court Judge Thomas Lyons II terminated those respondents in September 2020, but the Pierces filed a second amended complaint in November 2022 adding the group and OSF Healthcare as defendants to the negligence and consortium claims. OSF argued the complaint should be dismissed based on statutory limitations and other procedural challenges, but Lyons denied that motion, ruling Craig Pierce’s disability preserved the window for litigation.
Lyons also denied OSF’s motion for summary judgment. Then a probate court appointed Chicago Trust Company as temporary guardian of Craig Pierce’s estate. That led to a third amended complaint alleging negligence on Craig’s behalf and leaving the consortium claim to Susan individually. In December 2023 a probate court deemed Craig “a disabled person,” making Susan plenary guardian of his person while the trust company was the estate guardian.
Amid further proceedings, the codefendants reached a $16.75 million settlement agreement with the Pierces. Then, a three-week jury trial returned a verdict against all defendants except for the renal center, which was found not liable. The jury awarded more than $35 million to Craig and $6 million to Susan. The Pierces then requested prejudgment interest.
OSF argued for either a new trial or a reduction in damages, claiming Judge Lyons erred by striking affirmative defenses and by allowing awards for emotional distress and pain and suffering damages. It further requested the settlement money be deducted before calculating any prejudgment interest.
Lyons denied the bulk of those requests, but did grant an $11.5 million setoff while awarding prejudgment interest on the full amount of the verdict before applying the setoff. He stayed enforcement pending OSF’s challenge before the Illinois First District Appellate Court.
Craig Pierce died during the appeals process.
Justice Michael Hyman wrote the panel’s opinion, filed Sept. 18; Justices Celia Gamrath and Aurelia Pucinski concurred.
“Significantly, OSF did not contest that Craig had a legal disability after his stroke or claim that his disability was later removed,” Hyman wrote, instead insisting the legal limitations should apply because Susan Pierce could’ve acted on her husband’s behalf. It renewed those arguments in seeking summary judgment. “When OSF filed its affirmative defenses, it again relied on Susan’s lack of disability rather than the removal of Craig’s disability.”
However, the panel said, the relevant law doesn’t support such a theory because it frames the existence of a disability as the controlling issue. Although someone may sue on behalf of a person with an actionable disability, that “ability to sue neither removes the disability nor starts the statutory periods,” Hyman wrote. “Otherwise, the protection afforded a disabled person would depend on someone else’s diligence.”
In addition to reviewing opinions endorsing that position, the panel noted the commonality of a plaintiff suing on behalf of someone with a disability to amend complaints in order to add new defendants specifically because the presence of the disability sidelines statutory limits.
On appeal, OSF said Craig’s disability should’ve been a factual question presented to a jury. But the panel said OSF neither made that argument at the circuit court level nor asked to amend its defense filings to add such a claim, rendering it ineligible to advance the theory on appeal. The panel also said the law stipulates consortium claims, when derived from an injury to another person, can be brought whenever that person’s pursuit of damages are viable.
OSF also argued about the timing of prejudgment interest, saying it should apply only from when the Pierces first named it as a defendant and not when the prejudgment interest law took effect in July 2021. But the panel said the law has no language linking accrual to a date when a plaintiff adds a defendant to a pending action. It also said OSF wasn’t precluded from making its own settlement offer.
“Prejudgment interest compensates plaintiffs for the delay in being made whole and accounts for a defendant’s use of money ultimately found to be due the plaintiff,” Hyman wrote. “The Pierces’ agreement not to collect prejudgment interest applies only to the settling defendants. It neither changes OSF’s obligation to pay prejudgment interest nor enlarges the setoff to which OSF is entitled under the Contribution Act — either the amount stated in the settlement agreements or the consideration actually paid, whichever is greater.”
Finally, the panel rejected OSF’s argument that $4 million awards for both emotional distress and pain and suffering are duplicative. It said there was no indication the jury was confused about the distinct elements of each legal term and noted OSF never submitted a special interrogatory that might have led to a showing of double recovery.
Attorneys from the firm of Hinshaw & Culberston represented OSF.
Attorneys from the firm of Hurley McKenna & Mertz, of Chicago, represented Chicago Trust and Susan Pierce.
The settling defendants had representation from Brennan Burtker and Langhenry,
Gillen, Lundquist & Johnson, both of Chicago; and Livingston, Barger, Brandt & Schroeder, of Bloomington.
