Madison - St. Clair Record

Friday, November 15, 2019

Keefe proposes another med mal suit over same injury; First seeks $25 million

State Court

By The Madison County Record | Aug 21, 2019


EAST ST. LOUIS – Attorney Tom Keefe, who filed three suits over one injury, describes the result as a morass and proposes to pursue four. 

On Aug. 15, in U.S. district court, he moved to remand part of one suit to St. Clair County and consolidate the rest of that suit with the other two. 

Chief District Judge Nancy Rosenstengel must decide Keefe's motions quickly or delay a bench trial she has set for Sept. 3.

In a remand motion, Keefe wrote that consolidation would provide efficient judicial administration and straightforward litigation and resolution. 

His client, St. Clair County resident Lisa Vandervelden, claims the United States, St. Louis University, and others failed to diagnose and treat her oral cancer. 

Keefe filed the first suit in June 2018, in district court, claiming the U.S. committed malpractice through Southern Illinois Healthcare Foundation. 

Physician Imran Khan is identified as agent and employee of the foundation but is not named as defendant.

Keefe wrote that from January to August 2017, agents and employees of the U.S. assumed Vandervelden’s care for oral pain, swelling, and ulcer.

He claimed they failed to recognize signs and symptoms, order appropriate tests and treatment, and obtain appropriate consultation, and Vandervelden allegedly suffered permanent pain, mental anguish, disability, and disfigurement.

He demanded $25 million plus costs.

The court clerk assigned former chief judge Michael Reagan, who recused himself.

The clerk assigned Rosenstengel. 

Last September, assistant U.S. attorney Suzanne Garrison moved to dismiss the suit due to deficiencies in a certificate of merit that Keefe filed. 

Garrison wrote that the physician who signed the certificate mentioned multiple doctors without discussing how each was negligent.

In October, Vandervelden sued St. Louis University in St. Clair County circuit court.

Keefe, who had previously identified physician Kahn as agent and employee of the U.S., identified Kahn as agent and employee of the university.

He amended the complaint in November, to add physician Neil McClymont and Protestant Memorial Medical Center as defendants. 

This January, Chief Circuit Judge Andrew Gleeson assigned the suit to Rudolf.

Keefe’s firm contributed $13,000 to Rudolf’s judicial campaign last year.

In March, in district court, Rosenstengel granted Keefe leave to file another merit certificate through an amended complaint. 

Rather than amend the complaint, Keefe filed another one in district court with the same allegations and a different merit certificate.

The clerk assigned it to District Judge Staci Yandle.

In April, in Rudolf’s court, Keefe added St. Elizabeth’s Hospital as defendant.

St. Louis University moved to dismiss the complaint on May 1, alleging deficiencies in the merit certificate.

In Yandle’s court, on May 15, assistant U.S. attorney Garrison moved to dismiss Vandervelden’s complaint.

Garrison wrote that the merit certificate didn’t indicate that the physician practiced or taught in the area of medicine at issue. 

On May 16, Keefe voluntarily dismissed the suit without prejudice. 

He returned to Rosenstengel’s court with an amended complaint and the same merit certificate. 

On May 29, Garrison moved to dismiss the amended complaint. 

On June 5, in Rudolf’s court, Keefe added nurse practitioner Derek Pachacek and Infinity Meds as defendants.  

The landscape of the litigation shifted on June 21, when St. Louis University counsel Timothy Richards filed a third party complaint against the U.S. in Rudolf’s court. 

Richards wrote that the university could be entitled to contribution from third parties acting as agents or employees of the U.S. 

He named physicians Heather Lucas-Foster, Kristin Reineke-Piper, and Emily Culliney as defendants, and attached a training agreement among Scott Air Force Base, St. Louis University, St. Elizabeth’s, and Southern Illinois Healthcare Foundation. 

He wrote that the agreement required the U.S. to defend and indemnify the university for liability from acts or omissions of the physicians. 

On July 3, in district court, the university moved to intervene in the original suit for the purpose of filing a cross claim against the U.S. 

Richards wrote that the university and the U.S. had liability exposure to each other for indemnity and contribution. 

He wrote that the federal court might hold the U.S. vicariously liable for actions of university employees and the state court might hold the university vicariously liable for actions of U.S. employees. 

Vandervelden filed a second suit against the U.S. in district court on July 10, alleging medical malpractice at Scott Air Force Base. 

The clerk assigned it to Rosenstengel. 

On July 15, in Rudolf’s court, Keefe moved to dismiss or sever the university’s third party action against the U.S. 

The motion didn’t reach Rudolf, because the U.S. removed the action to district court on July 16. 

The clerk assigned it to Rosenstengel. 

She permitted the university to intervene in the first suit on July 19, finding its cross claim would share a common question of law or fact with the main action. 

Richards filed the cross claim on July 23. 

He wrote that Lucas-Foster, Reineke-Piper, and Culliney supervised university residents in the scope of their employment with the U.S. 

On Aug. 15, Keefe responded to removal of the St. Clair County action by moving to remand it to Rudolf. 

He wrote that the U.S. removed not only the university’s third party action but also the entirety of Vandervelden’s Illinois medical malpractice case. 

He wrote that he moved to sever the third party complaint to preserve the integrity of her state law case. 

“Plaintiff has not waived this issue and, absent alternative relief, severance remains proper,” Keefe wrote.

He wrote that the university’s claims against the U.S. were discrete and separate from the Illinois medical malpractice claims. 

He proposed to consolidate the university’s claims with the other suits, writing that it “simplifies and streamlines the current morass of litigation in this matter.” 

He filed a motion to that effect on the same date, stressing similarities between the separate suits he filed. 

He wrote that the treatment alleged in both suits “occurred during the same course of negligent treatment for plaintiff’s oral ulcer.” 

“United States Air Force employees and United States SIHF deemed employees treated plaintiff on the same dates of service,” he wrote.

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