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Sallie Wells, As Administrator of the Estate of Juanita v. St. Bernard Hospital

March 29, 2013


Appeal from the Circuit Court of Cook County. No. 08 L 5863 Honorable William D. Maddux, Judge Presiding.

The opinion of the court was delivered by: Justice Gordon

JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Hall and Reyes concurred in the judgment and opinion.


¶ 1 After plaintiff Sallie Wells' adult daughter, Juanita Wells (decedent), died at defendant St. Bernard Hospital, plaintiff retained counsel to file a wrongful death and survival action against St. Bernard and the health providers for their care and treatment of decedent, arguing that defendants' medical malpractice caused decedent's wrongful death. The case settled, and plaintiff's counsel petitioned the trial court for enhanced attorneys fees pursuant to section 2-1114 of the Code of Civil Procedure (735 ILCS 5/2-1114 (West 2008)). The trial court granted counsel's petition and awarded plaintiff's counsel $56,850 in enhanced fees.

¶ 2 Four months after the trial court awarded the enhanced fees, Dr. Geoffrey Shaw, a board-certified psychiatrist, examined plaintiff and determined that she suffers from a "major psychiatric illness (most likely [s]chizophrenia)" and is developmentally disabled and thus was disabled at the time of the settlement and the petition for enhanced fees. The office of the public guardian (hereafter Public Guardian) was appointed as the temporary guardian of plaintiff, and the court declared her to be a disabled person. The Public Guardian filed a section 2-1401 petition to vacate the enhanced fee award, arguing that plaintiff lacked the capacity to consent to her counsel's petition for enhanced fees. 735 ILCS 5/2-1401 (West 2008). The trial court denied the petition, and this appeal followed. We affirm.


¶ 4 I. The Wrongful Death and Survival Action

¶ 5 Plaintiff Sallie Wells gave birth to two children: Michael Wells (Michael), born in 1968, and the decedent Juanita Wells.*fn1 Both children were adults at all relevant times during the events of this case. Both children were taken from plaintiff at birth and placed into a foster care system. Michael was raised by Julia Mayes (Julia), his aunt and plaintiff's sister, and the decedent was raised by Estelle White, a family friend. Plaintiff receives only public aid and social security disability.
¶ 6 On May 29, 2006, the decedent was taken to St. Bernard Hospital by ambulance and hospitalized, complaining of chest pains. There was an issue as to whether the onset of her symptoms was caused by a suicide attempt. Decedent passed away two days later during her hospitalization. On July 10, 2006, plaintiff signed a retainer agreement with attorney James Gumbiner, to represent her in a medical malpractice claim against defendants for their negligent care and treatment of decedent during her hospitalization at St. Bernard. The agreement included a fee structure clause, whereby Gumbiner would receive "[t]hirty three and one-third (33/1/3) percent of the first $150,000 [recovered], twenty five (25%) percent of the next $850,000 of the sum recovered, twenty (20%) percent of any additional amount over $1,000,000 of the sum recovered." Furthermore, the agreement stated that "[t]he court may review contingent fee arrangements for fairness. In special circumstances, where an attorney performs extraordinary services involving more than usual participation in time and effort the attorney may apply to the court for approval of additional compensation." The agreement also included a provision which states that Gumbiner "may associate other attorneys with him in the prosecution of this case, if, in his judgment, it would be beneficial to the case to associate with other attorneys." The agreement further stated:

"[I]n the event work is done on [the] case by such other attorneys, the other attorneys will be compensated either by direct payment by Mr. Gumbiner on an hourly basis or by receiving a percentage of the fee. In no event will [plaintiff] be required to pay any fees to such other attorneys directly, or in excess of the amounts referred to in this Agreement. There will be no extra charge for the services of such other attorneys; the other attorneys will be paid from the fee referred to above."

¶ 7 Gumbiner referred the case to the law firm of Steinberg, Polacek & Goodman, now known as Steinberg, Goodman & Kalish (SGK, the appellees in this appeal). The defendant health care providers are not parties to this appeal. In May 2008, prior to filing the complaint, SGK petitioned the probate division to appoint plaintiff as the administrator of decedent's estate, which was granted.*fn2

¶ 8 On May 29, 2008, plaintiff filed the complaint for medical malpractice in the circuit court of Cook County. On February 19, 2009, after defendants subpoened decedent's prior medical records, plaintiff filed a motion for a protective order to prevent the receipt, disclosure, use, or dissemination of decedent's mental health records, pursuant to the Mental Health and Developmental Disabilities Confidentiality Act (Mental Health Act). 740 ILCS 110/1 et seq. (West 2008). The motion stated that decedent had received mental health care from numerous health care providers prior to her hospitalization on May 29, 2006. Plaintiff argued that decedent's mental health records were privileged, because the Mental Health Act prohibits the nonconsensual disclosure of mental health records except under certain circumstances. Plaintiff argued that no such circumstances existed in this case. On June 16, 2009, the trial court held a hearing on plaintiff's motion and granted the protective order after SGK reviewed all of the records and formulated objections to their use.

¶ 9 On March 4, 2010, plaintiff filed a petition to approve a settlement in the case in the trial court in exchange for a release of all claims for $825,000. Plaintiff received 96.37% and Michael received 3.63% of the net settlement.

¶ 10 The petition also included a request for enhanced attorneys fees of $56,850, pursuant to section 2-1114(c) (735 ILCS 5/2-1114(c) (West 2008)). Under the medical malpractice statute, attorneys may recover fees of one-third of the first $150,000 of the award and one-fourth of the next $850,000. Section 2-1114 allows an attorney to recoup additional fees if "an attorney performs extraordinary services involving more than the usual participation in time and effort." 735 ILCS 5/2-1114(c) (West 2008). The petition stated that the special circumstances meriting enhanced fees include but are not limited to the following: "the difficulty in prosecuting the case, the nature of the defenses to the case, the difficulties in obtaining a favorable medical review as to the liability issues involved, creating the opportunity to settle the case at this time without further delay. In particular, this case involved unique issues of privilege under the Illinois Mental Health Act which were vigorously litigated and researched over a period of approximately one year. *** In connection with this issue, Plaintiff's counsel reviewed personally approximately twenty-five thousand pages of medical records from approximately thirty different admissions to various hospitals in the Chicagoland area. *** The effects of these extraordinary efforts by Plaintiff's counsel had a positive effect on the settlement value of the case."

The petition requested that attorneys Gumbiner and SGK, in exchange for their services, should receive fees of $275,000, or one third of the total settlement amount. The petition stated that plaintiff had been made aware of the circumstances of the case, and agreed that fees of $275,000 were fair in light of the special circumstances required by the case. After payment of fees, expenses, and the Illinois Department of Healthcare and Family Services public aid lien, plaintiff received $513,154.08 and plaintiff's son Michael received $29,947.50. Attached to the petition was a statement signed by plaintiff and Michael asserting they had read and approved the settlement petition, including the provision for enhanced fees. Also attached to the settlement petition was a list of enumerated expenses, totaling $3,898.42.

¶ 11 That same day, March 4, 2010, the trial court entered an order approving the settlement. The trial court found that the settlement amount was fair and reasonable, that the attorneys were entitled to enhanced fees of $56,850, which made a total fee of $275,000, and reimbursement of expenses of $3,898.42. The trial court approved apportionment of 96.37% to plaintiff and the balance of 3.63% of the settlement to Michael.

¶ 12 II. Petition to Vacate Enhanced Fees

¶ 13 On May 12, 2010, plaintiff's sister and the aunt who raised Michael filed a petition in the probate division seeking that Michael be adjudged a disabled person. Dr. Frances Wong, a licensed physician, examined Michael and executed a written report finding that Michael is diagnosed with "mental retardation." Dr. Wong's report opined that Michael can perform "activities of daily living independently, but requires others to help him with critical thinking decisions" and "needs supervision with financial decisions." The probate judge found Michael a disabled person and appointed his aunt as his guardian.

¶ 14 The probate judge also appointed an attorney to serve as guardian ad litem (GAL) for Michael's estate, and ordered the GAL to review the settlement agreement. The GAL submitted a report opining that Michael was, both at the time of the settlement and at the present time, incapable of making financial decisions and thus incapable of agreeing to any enhanced fees.

¶ 15 On July 8, 2010, Dr. Geoffrey Shaw, a board-certified psychiatrist, examined plaintiff to determine her capacity to make her own personal and financial decisions. The examination resulted from a claim that plaintiff had been financially exploited following her receipt of money from the settlement. After receiving the settlement funds, plaintiff authorized three cashiers checks made payable to three separate people, Bruce Staggers, Jimmie Cook, and Martin Cosby, in the amounts of $10,000, $96,131, and $30,000, respectively. Plaintiff was unable to explain the reasons for gifting the cashiers checks to the payees. When asked about Staggers, Cook, and Cosby, she referred to them as "crooks." She was also unable to recall to Dr. Shaw the amount awarded to her in the settlement.

ΒΆ 16 Dr. Shaw stated in his report that plaintiff has "a long history of Psychiatric Illness," was currently under the care of a psychiatrist, and that she was taking psychotropic medications. Plaintiff displayed prominent involuntary facial movements, known as tardive dyskinesia, which are indicative of the chronic administration of antipsychotic medications. Dr. Shaw opined that, "[u]pon questioning, it also became very apparent that [plaintiff] is also Developmentally Delayed." Dr. Shaw opined that plaintiff suffers from a "major psychiatric illness (most likely Schizophrenia) and is also Developmentally Delayed." Dr. Shaw further opined that although plaintiff "functions relatively well in her surroundings and appears to have a reasonably good quality of life," her judgment is impaired due to her developmental delay and "chronic" psychiatric illness. Dr. Shaw opined that plaintiff has an "extremely limited concept of finances," and that although she can, with support, reside alone, she requires assistance to ensure her basic needs, such as having adequate food and shelter, are met and requres access to on going medical and psychiatric care. Dr. Shaw opined that, "[i]n the area of financial decisions [plaintiff] is extremely vulnerable ...

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