Illinois Lawyer Blog

Recently retained by a woman to investigate her allegations that she was sexually abused while a patient at a local health care facility. It is not unusual in these cases that the corporate defendant moves to dismiss, arguing the any improper conduct on the parts of its employee was "beyond the scope" of the employee's specific duties. [In fact, for a good example of an employer clinging to the "beyond the scope" see my February 23, 2009 post about McDonald's].

In order to get around that defense, plaintiffs frequently include negligent hiring counts in the complaint. An action for negligent hiring or retention of an employee requires the plaintiff to plead and prove: (1) that the employer knew or should have known that the employee had a particular unfitness for the position so as to create a danger of harm to third persons; (2) that such particular unfitness was known or should have been known at the time of the employee's hiring or retention; and (3) that this particular unfitness proximately caused the plaintiff's injury. The third element, proximate cause, is typically the battleground in these cases. When proceeding under a negligent hiring theory, the proximate cause of plaintiff's injury is the hiring or retention of the employee, NOT the wrongful act of the employee.

And the Courts of Illinois take a hard look at the proximate cause issue. In one case a cable installer sexually assaulted a customer in her home while on the job. The plaintiff filed suit and included a count for negligent hiring. The evidence revealed that an investigation into the employee's background would only have revealed that he had a history of traffic violations. The Court ruled that knowledge about the traffic offenses would not have put the employer on notice that the employee might assault a customer. In another case, a bus driver sexaully assaulted a student while driving that student home. The parents of the child filed suit against the bus company alleging negligent hiring. That case was dismissed as well. The evidence showed that an investigation into the employee's background would have only revealed a history of tardiness. The trial made a determination that there was logical relationship between that fact and the ultimate assault.

The case law seems to suggest that to prove the proximate cause element, some key facts will be necessary. First, one must show that the employee, prior to the employment had engaged in improper or violent acts. In addition, the plaintiff should plan on showing that the employee then engaged in similar acts while employed. Finally, the plaintiff should be prepared to demonstrate that the employer could have learned of the employee's violent propensities if a proper investigation had been undertaken PRIOR to the employment. Not exactly an easy burden.

The Illinois Supreme Court recently clarified exactly what injured parties may claim as medical expenses in injury cases. The opinion, Wills v. Foster, was issued on June 19, 2008. The underlying facts are pretty straightforward. The plaintiff, Sheila Wills was injured in an automobile collision. She sued the defendant, Inman E. Foster. Ms. Wills had medical bills of $80,163.47. In addition, plaintiff was covered by both Medicaid and Medicare. As a result, her medical bills were directed to Medicaid and/or Medicare, who paid a fraction of the actual billed amount - $19005.50 to be exact.

Prior to trial the plaintiff moved to exclude any evidence that Medicaid/Medicare had paid any of her bills. At the same time, the defendant moved that plaintiff be allowed to claim only the actual paid amount of the bills, as opposed to the billed amount. The trial court granted the plaintiff's motion and denied the defense motion. The case then proceeded to trial. The jury found for plaintiff and awarded her the full amount of her actual medical bills[$80,163.47], as well as an additional amount for pain and suffering. The defense then filed a post-trial motion, asking the court to reduce the medical bill portion of the verdict from $80,163.47 to $19,005.50. The trial court granted the defense motion and reduced the plaintiff's award to the actual amount that Medicare and Medicaid had paid. The plaintiff appealed to the Fourth Appellate District Court. The Appellate Court upheld the trial court's decision.

The plaintiff then appealed to the Illinois Supreme Court. Plaintiff argued that the trial court's order violated the collateral source doctrine and was contrary to Arthur v. Catour, another recent Illinois Supreme Court decision. The collateral source doctrine basically provides that injured parties shouldn't be punished for receiving collateral source[i.e. insurance company]payments of medical bills incurred due to the negligence of others. Juries are not to be informed that a) the plaintiff was covered by insurance or b) that insurance made any payments on the plaintiff's behalf. [As an aside this fiction is somewhat outdated - most juries know there is insurance involved]. The Arthur v. Catour decision had held that a plaintiff could submit unpaid medical bills to the jury if there was sufficent foundation testimony that the bill involved was reasonable.

The Supreme Court, after much discussion, decided that the Arthur v. Catour approach was correct. Plaintiffs are entitled to seek to recover the full reasonable value of their medical expenses. The "reasonableness" requirement set forth in Arthur remains a part of the foundational requirement in order to get the bill into evidence. A paid medical bill will be presumed to be reasonable, and therefore, admissible. In order to get unpaid portions of medical bills submitted to the jury, the plaintiff will be required to present evidence[presumably testimony from an individual familiar with medical coding and billing]that the unpaid portions of the bill are indeed reasonable. The defendant is free to cross examine any witness called by plaintff to establish reasonableness and the defendant can call his own witness to offer testimony the bill was not reasonable. Defendants may NOT however, introduce evidence that the bill in question was compromised for a lesser amount. Once a bill is submitted to the jury, the jury decides if they will award all, some of none of it.