Dalla-Riva wants med mal suit dismissed over 'consultant's' report

By Steve Gonzalez | Apr 21, 2008

A well-known area obstetrician who has been sued seven times in the past five years is asking a Madison County judge to dismiss a medical malpractice case.

James Dalla Riva, M.D. wants a judge to dismiss Penny Keller's suit because of an alleged problem with a reviewing health professional's written report.

Keller filed suit against the Maryville doctor March 11 over complication arising from an outpatient laparoscopy performed at Anderson Hospital on April 28, 2006.

Keller claims that during the procedure Dalla Riva committed professional negligence by failing to order a bowel prep prior to the surgery, failing to properly identify her anatomy or to recognize he lacerated her intestine and negligently allowing her to be discharged after her intestine was lacerated.

She also claim Dalla-Riva failed to recognize he lacerated areas he did not intend to lacerate, failed to rule out the use of laparoscopy in favor of laparotomy in light of previous findings and failed to convert to laparotomy in light of her presentation during the laparoscopy.

In an April 11 motion to dismiss, Dalla-Riva argued that statute requires med mal plaintiffs to attach an affidavit stating that either the plaintiff or the plaintiff's attorney has consulted and reviewed the facts of the case with a health professional who meets expert witness standards.

Dalla-Riva states the report of the reviewing health professional identifies David Burkons, M.D. of South Euclid, Ohio and gives his license number in that particular state.

He claims that paragraph eight of the affidavit identifies Burkons as a "consulting expert as provided in Illinois Supreme Court Rule 201 (b) (3)." He claims that the failure of the plaintiff to file a report or certificate of reviewing health professional distinguished from a certificate of a "consultant" provides ground for dismissal with prejudice.

"Plaintiff's effort to alter the disclosure of Dr. Burkons from a full fledged potential witness to the status of a consultant about whom disclosure is severely limited by the requirement of Supreme Court Rule 201 (b) (3) is violative of and inconsistent with the requirements of 735 ILCS 5/2-622," the complaint states.

Dalla-Riva is seeking a judgment in his favor and against Keller for her failure to comply with the requirements of Illinois law.

The case was assigned to Circuit Judge Nicholas Byron, but a respondent in discovery has asked for a new judge.

Keller, represented by Gregory Shevlin of Belleville, is seeking damages in excess of $150,000, plus costs.

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