Richard J. Daley Center, Chicago
CHICAGO - An Illinois state appeals panel will let the family of a child who died in a hospital in Chicago's suburbs try again to sue the hospital, because they said a Cook County judge wrongly allowed the hospital's lawyers to tell jurors that one of the plaintiffs' medical experts had agreed to pay $230,000 to end a Medicare fraud investigation, and the judge had wrongly refused to allow the plaintiffs to withdraw testimony from another of their experts who had changed his mind to say the evidence didn't show the child died of the causes claimed in the lawsuit.
On Aug. 28, a three-justice panel of the Illinois First District Appellate Court tossed out a jury verdict entered in favor of Elmhurst Memorial Hospital and ordered a new trial for Victor Guadarrama and Nancy Moreno in their legal action against the hospital.
The decision was authored by Justice Terrence J. Lavin. Justices James Fitzgerald Smith and Aurelia Pucinski concurred in the ruling.
The decision was entered as an unpublished order under Supreme Court Rule 23, which may limit its use as precedent.
In the ruling, the justices said they believed the new trial was needed because the judge who presided over the trial, identified in court documents as Cook County Judge Bridget Hughes, had abused her discretion in at least two key decisions concerning the use of expert testimony during the trial.
The justices also asserted the judge showed "bias" against the plaintiffs and at least one key witness. They ordered Judge Hughes be removed from the case and the matter reassigned to a different judge for a new trial.
The case had landed in Cook County Circuit Court in 2019, about a year after the death of Guadarrama's and Moreno's seven-year-old daughter, Victoria Guadarrama.
According to court documents, the couple had taken Victoria to Elmhurst Memorial's emergency room at her doctor's guidance after the girl exhibited consistently worsening physical symptoms over the course of two days.
According to court documents, the girl first complained of headaches, then swollen eyes and a sore throat, followed by vomiting, which doctors said left her dehydrated.
At the ER, the triage nurse reportedly indicated no signs of "any distress" in Victoria, noting "she did not have sunken eyes or skin discoloring."
The nurse reportedly administered a dose of anti-nausea medication and placed Victoria and her mother in a hospital room, to which the girl was able to walk under her own power.
Within minutes of arriving in the hospital room, however, nurses "heard Nancy scream for help," as Victoria had become unresponsive with "a slow heart rate with slow respirations."
Efforts to resuscitate the girl were unsuccessful, and she was pronounced dead an hour later.
According to court documents, a "postmortem examination of Victoria revealed that she died of 'sepsis due to an upper respiratory infection.'"
The family filed suit and the case ultimately proceeded to trial in 2023.
However, before trial, the plaintiffs asked the judge to restrict jurors from learning two facts about expert witnesses they had brought on to support their case.
In one motion, they asked the judge to bar the hospital from telling jurors about a settlement agreement entered between the federal government and one of their expert witnesses, Dr. Eugene Saltzberg. The plaintiffs sought to use Saltzberg to testify concerning "the nursing standard of care and triage process," backing their assertion that Elmhurst Memorial had fallen short in those areas, allegedly causing them to allegedly fail to properly treat Victoria's condition, allegedly leading to her death.
Under the May 2023 settlement agreement, Saltzberg had agreed to pay Medicare $230,000 and had agreed to not "provide care under all federal health programs for 20 years" as part of a deal to end a federal investigation into potential Medicare fraud. According to court documents, the federal investigation centered on allegations that Saltzberg may have allegedly committed Medicare fraud while working for two telemedicine companies from 2017-2019.
Saltzberg did not admit any liability in the agreement.
However, as a result of the settlement, the Illinois Department of Financial and Professional Regulation also temporarily suspended Saltzberg's medical license, which the court documents noted "was on probation at the time of the trial."
The Cook County judge denied the plaintiffs' motion to limit defendants from referencing that agreement at trial.
Likewise, the judge also denied a separate motion from plaintiffs to restrict the hospital from referencing opinions issued by a pathologist initially hired by plaintiffs as a witness, Dr. Jason P. Tovar.
According to court documents, Tovar had initially concurred with the conclusion of the postmortem report that Victoria had died of sepsis caused by an upper respiratory infection.
However, after examining images of the girl's heart, Tovar changed his opinion, saying he believed she died of "a cardiac event," and that the girl had myocarditis, or an inflammation of the heart muscle, at the time of her death. Myocarditis can be caused by a viral infection and often weakens the heart's ability to pump blood.
After Tovar changed his mind, the plaintiffs sought to withdraw his testimony and "bar any reference to the doctor or his opinions."
The hospital would later cite to Tovar's opinions when presenting testimony that Victoria's cardiac health had likely been deteriorating for some time before she was presented for care at the hospital.
At the same time, Judge Hughes granted the hospital's motion to block another of plaintiffs' expert witnesses, nurse Cynthina Smith, "from offering proximate cause opinions about Victoria's death."
At trial, a Cook County jury rendered a verdict in favor of the hospital.
The plaintiffs appealed, asserting the judges' rulings, among other actions taken by the judge, exhibited bias against them and denied them a fair trial.
The appellate panel agreed.
In the ruling, they said Judge Hughes' decision to allow reference to Saltzberg's Medicare settlement violated Illinois law.
"Illinois law is clear that a witness may not be impeached with prior acts of misconduct and that is exactly what was allowed to happen here," Justice Lavin wrote.
The appeals panel particularly noted Saltzberg was not convicted of a crime, nor did he admit to any wrongdoing under the deal.
And the justices said they believed the judge had displayed improper bias against Saltzberg, stating on the record during proceedings apart from the jury that she believed the settlement indicated Saltzberg had committed Medicare fraud. According to court documents, the judge noted Saltzberg's "license was suspensed, and now he's on probation for committing a dishonest act during the time that he was retained by [plaintiffs' counsel] and prior to him testifying."
According to court records, plaintiffs were represented in the case by attorney Edmund Scanlan, of Chicago.
"... The trial judge displayed repeated apparent bias and unfairness with respect to this witness in making various statements that contradicted the express language of his settlement agreement," Lavin wrote in the appellate order.
"... It’s safe to say that the improper admission and discussion of Dr. Saltzberg’s settlement agreement likely influenced the jury’s assessment of his credibility and testimony and may have affected the jury’s verdict in this case."
The justices further took Judge Hughes to task for allowing the hospital's lawyers to use Tovar's opinions against the plaintiffs at trial, when they had sought to withdraw Tovar's opinions more than six months before trial.
The justices said allowing the hospital to use Tovar's opinions, as they did, was "prejudicial" against the plaintiffs.
"... The mere mention of Dr. Tovar by the defense experts was not necessarily erroneous, but it was an abuse of discretion to allow them to impute his opinions to plaintiffs under the circumstances," Lavin wrote.
Taken together with other decisions by the judge overseeing the trial, the justices agreed with the plaintiffs that "the court's cumulative errors surrounding those rulings deprived them of a fair trial."
Elmhurst Memorial Hospital was represented in the case by attorneys from the firm of Swanson Martin & Bell, of Chicago.