Hepler Broom, LLC

Pro Se It Ain’t So: Defending a Meritless Medical Malpractice Suit Filed by a Self-Represented Litigant

March 5, 2020

While overall trends show that more and more litigants are appearing in court without an attorney, in the medical malpractice context, defending a case against a pro se plaintiff is not as common. This is particularly true in courts where the amount in controversy must be in the tens of thousands before a court can even hear the case (e.g., in the Circuit Court of Cook County, Illinois, where the Law Division only hears civil suits for recovery of monetary damages in excess of $30,000). Nonetheless, we have all had one. You probably still have one now – and every pro se case brings its own unique set of challenges for the defense attorney, no matter the strength of its defenses. Medical malpractice is already a complex area of the law, and courts are inclined to allow litigants (both plaintiffs and defendants, with or without counsel) reasonable opportunity to cure procedural deficiencies. However, self-represented litigants can create added confusion from the get-go. Lack of expertise leads to extended time and higher costs spent litigating through what may otherwise be routine phases of a lawsuit. So, it follows that defense counsel—and our clients—are often left frustrated with the latitude taken by self-represented litigants in the courtrooms where we, as attorneys, so diligently strive to abide by the law, order, and ethics.

The unfortunate reality of lawsuits for defendants is that complaints are easy to file and difficult to dispose of. This is true even when states have laws in place that seek to prevent the filing of frivolous lawsuits. In Illinois, medical malpractice plaintiffs are required to comply with the provisions of 735 ILCS 5/2-622, which requires plaintiffs to also file with their complaint a report authored by a healthcare professional who attests that there is a reasonable and meritorious cause for filing the action. 735 ILCS 5/2-622(a). Failure to file such a report is grounds for dismissal under the statute. 735 ILCS 5/2-622(g). These requirements apply to all medical malpractice cases, whether or not the plaintiff is represented by counsel. Often, pro se plaintiffs do not obtain the necessary report to sustain their pleading, which usually results in motion practice and several court extensions before the complaint is finally dismissed. Ideally, the case goes away quietly. But what recourse do defendants have when a pro se plaintiff continues to prosecute a meritless case, even in the face of a dismissal order?

Recently, the Illinois Appellate Court First District took a stand against a pro se plaintiff who demonstrated a pattern of egregious, meritless serial litigation. See Gillard v. Northwestern Memorial Hospital, et al., 2019 IL App (1st) 182348. Gillard, a civil tort case, was the second of two lawsuits filed by the same pro se plaintiff against the very same defendants, including a local hospital. During Gillard’s pendency in the trial court, the case was twice dismissed for want of prosecution, and the plaintiff engaged in a series of abhorrent behaviors, some of which were directed against the court and court staff, as well as a blatant disregard for the trial court’s rules and procedures. The defendants filed several motions to dismiss, which were ultimately granted and then resulted in a frivolous appeal. The First District affirmed the dismissal and imposed sanctions for the plaintiff’s abuse of the litigation process. Though the circumstances of Gillard were extreme, the case serves as a valuable reminder (and precedent) that while courts may be more lenient to self-represented litigants who do not carefully follow every rule, they will order sanctions against pro se plaintiffs under sufficiently egregious circumstances. See Gillard, 2019 IL App (1st) 182348, ¶ 62, citing Parkway Bank & Trust Co. v. Korzen, 2013 IL App (1st) 130380, ¶ 87. We’ll keep this one in our back pocket.

COVID-19 Updates

HeplerBroom LLC COVID-19 Response

HeplerBroom has been diligently working on its response and continuity plan to the COVID-19 pandemic in order to keep the health and safety of our employees, their families, and our clients as our top priority.

To help ensure everyone's continued health and well-being, effective March 17, 2020, all attorneys and staff began working remotely. We continue to assess the situation and will return to our physical offices when appropriate.

To ensure this, the firm has identified essential personnel in each office who will make certain that critical firm functions that cannot be done remotely continue to be handled. We have put in place protocol for those essential personnel to make sure they are keeping healthy per the CDC cleaning and sanitizing recommendations. All teams have back-up personnel and procedures that we will follow to make sure all deadlines are met and clients receive the same great service and work product that we have always been proud to provide.

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The firm has created emergency communication measures to communicate any changes to this plan to employees and are communicating on a regular basis with any and all new resources and helpful information during this uncertain time.

During these fluid and unpredictable times, HeplerBroom will continue its commitment to great service and results for our clients, all while keeping safe and healthy.

Wishing you and your families good health.

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