Perkey v. Portes-Jorol
1 N.E.3d 5
Ill. App. Ct.2014Background
- Charles Perkey, administrator of Leanne Perkey’s estate, sued Michelle Portes-Jarol and Winchester Medical Group for medical malpractice; jury awarded $600,000 with $310,000 for medical costs.
- 2001 CT scan showed pancreatic duct dilation; radiologist recommended ERCP to assess tumor; Portes did not refer or disclose radiology findings.
- Leanne’s cancer was later diagnosed in 2002 as pancreatic cancer with metastasis to a lymph node; she underwent Whipple surgery, chemo, and radiation.
- Plaintiff’s experts (notably Rubin) offered conflicting standard-of-care opinions; defendants argued the standard was misapplied and causation was not shown.
- Defendants moved to reduce the medical expenses under 2-1205; court denied; on appeal, the court reversed in part, remanding to reduce by $175,066.15 due to insurer recoupment rights; decision affirmed in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of care sufficiency | Perkey: Rubin applied proper standard; evidence supported breach | Portes: Rubin used an improper standard | No reversible error; standard of care supported the verdict |
| Proximate causation (lost chance) | Perkey: delay caused decreased survival chances | Portes: delay could not change outcome | Sufficient evidence of lost chance proximately caused by delay |
| Jury instruction accuracy | Portes: used flawed 2006 version; not accurate | Portes: Studt requires 2011 version | Instruction acceptable; 2011 version correctly states law |
| Section 2-1205 reduction eligibility | Perkey: insurer right of recoupment bars any reduction | Portes: reduction limited to extent of recoupment right | Trial court erred; reduction limited to BCBS recoupment amount; remanded to reduce by $175,066.15 |
| Right of recoupment vs. collateral source rule | Perkey: right of recoupment bars setoff entirely | Portes: reduction allowed to extent of recoupment | Statutory phrase 'to the extent that' limits reduction to the amount of recoupment; remand for calculation |
Key Cases Cited
- Sullivan v. Edward Hospital, 209 Ill. 2d 100 (Ill. 2004) (standard of care and expert testimony requirements)
- Lazenby v. Mark’s Construction, Inc., 236 Ill. 2d 83 (Ill. 2010) (de novo review of directed verdict/n.o.v.)
- Studt v. Sherman Health Systems, 2011 IL 108182 (Ill. 2011) (IPI 105.01; professional negligence standard update)
- Matarese v. Buka, 386 Ill. App. 3d 176 (Ill. App. 2008) (appellate acknowledgment of 2006 vs 2011 IPI wording)
- York v. El-Ganzouri, 353 Ill. App. 3d 1 (Ill. App. 2004) (recoupment/right-of-recovery affect on setoff under 2-1205)