Morisch v. United States
2011 WL 3211502
7th Cir.2011Background
- Gerald Morisch filed an FTCA medical malpractice claim against the United States for a July 2003 stroke occurring after VA medical care in Missouri/Illinois area; district court held bench trial for FTCA and jury trial for legal malpractice; district court ruled for the government on proximate causation and standard of care due to lack of evidence that VA follow-up would have prevented the stroke; Gerald’s wife’s loss-of-consortium claim was dismissed; record on appeal was incomplete, with only Dr. Riley’s testimony included; on appeal, the Seventh Circuit deemed the record inadequate for meaningful review and forfeited the FTCA claim review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Petrillo doctrine violation supports sanctions affecting the FTCA claim | Morisch argues Kreisman’s ex parte contacts taint the record | Government contends Petrillo issue is non-prejudicial and misapplied | Merits-based sanctions issue deemed meritless; not prejudicial to FTCA claim |
| Whether VA's failure to follow up on biopsy/CT results proximately caused the stroke | If VA had followed up, Morisch could have disclosed TIA symptoms prompting treatment | No imminent risk; CT/biopsy did not require urgent follow-up; stroke not caused by carotid issue | District court’s finding that no proximate cause; stroke not foreseeably preventable by follow-up |
| Whether Gerald forfeited the FTCA appeal due to incomplete trial transcript | Complete record would support his FTCA arguments | Incomplete Rule 10 transcript precludes meaningful review | Appeal is forfeited; incomplete record forestalls meaningful review of the FTCA claim |
Key Cases Cited
- Gicla v. United States, 572 F.3d 407 (7th Cir. 2009) (credibility deference to trial judge findings; dueling experts)
- Hotaling v. Chubb Sovereign Life Ins. Co., 241 F.3d 572 (7th Cir. 2001) (need for complete transcript for meaningful review; forfeiture risk)
- Gramercy Mills, Inc. v. Wolens, 63 F.3d 569 (7th Cir. 1995) (Rule 10(b)(2) transcript requirement; forfeiture when missing transcript)
- Johnson v. Loyola Univ. Med. Ctr., 384 Ill.App.3d 115, 323 Ill.Dec. 253, 893 N.E.2d 267 (Ill. App. Ct. 2008) (expert causation standard in medical malpractice (Illinois))
- LaSalle Bank, N.A. v. C/HCA Devel. Corp., 384 Ill.App.3d 806, 323 Ill.Dec. 475, 893 N.E.2d 949 (Ill. App. Ct. 2008) (foreseeability and legal causation standards in Illinois malpractice cases)
- Wipf v. Kowalski, 519 F.3d 380 (7th Cir. 2008) (fact-finding weight to expert testimony; deference to trial judge)