Madison - St. Clair Record

Friday, August 23, 2019

Mudge denies request to rescind mediation in medical malpractice suit


By Heather Isringhausen Gvillo | Jun 26, 2018

Madison County Circuit Judge William Mudge denied a request to rescind his mediation order in a medical malpractice suit alleging a patient fractured her foot during a physical therapy session following a stroke.

He also struck the June 18 trial date.

Sam Lewis filed an amended complaint Oct. 14, 2016, against Apex Physical Therapy LLC, also known as ApexNetwork Physical Therapy, Ryan D. Lampe, Jeffrey S. Swank, and Amy J. Kuhl.

She alleges she began seeing the defendants for physical therapy on Jan. 29, 2014, after suffering two strokes. She claims she informed the defendants that she had weakness on the left side of her body and that her left ankle was significantly weaker than the right ankle.

Then during her third session with the defendants on Feb. 4, 2014, Lewis claims the defendants increased her leg and foot weights by a “significant” amount. She alleges she felt something “pop” in her left foot while completing the exercises.

Lewis alleges she informed the defendants of the “pop” and resulting pain, who she claims advised her that the incident was a normal effect of therapy. However, she claims the defendants failed to reference the “pop” in her medical chart.

She later visited a doctor and allegedly learned that her foot was broken, the suit states.

Lewis claims she informed the defendants of her injury, but they continued weight-bearing and range of motion exercises without consulting her physician and with her immobilization boot removed, the complaint alleges.

As a result, Lewis claims her foot occasionally goes numb and she often falls over, she walks with a limp and her fractured foot has interfered with her stroke rehabilitation, causing her to lose the possibility of any significant recovery.

On April 30, Mudge entered an order barring the plaintiff’s expert witnesses. Then a second order was entered requiring the parties to engage in mediation.

Mudge had concluded that the plaintiff failed to timely disclose her expert witness.

“The lack of diligence is plainly obvious from a tardy request to amend and continue that is five months past the disclosure deadline,” Mudge wrote.

The defendants filed a petition to rescind mediation order on May 2 through attorney Karen Vivian-Nathan of the Law Offices of Edward J. Kozel in Chicago.

They argue that they have no authority to participate in mediation proceedings and instead seek a motion for summary judgment barring the plaintiff’s expert witnesses at trial.

Lewis filed a response in opposition on June 10 through attorney Michael C. Seamands of St. Louis.

She argues that Madison County’s Local Court Rules requires parties to mediate all pending healing arts malpractice actions and nursing home malpractice actions.

The plaintiff argues that the rules do not provide the court with discretion to waive the mediation requirement.

On June 13, Mudge denied the defendants’ motions to rescind mediation and for summary judgment.

“Parties are ordered to mediate, either with assigned mediator Judge Mangarelli or with an agreed independent mediator.

“If cause is not resolved via mediation, case to be reset for case management conference upon request of the parties,” Mudge wrote.

Madison County Circuit Court case number 16-L-110

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