NO COMP LIEN IN MED MAL CASE

The Appellate Court for the Fourth District of Illinois came down with a decision recently clarifying how an employer can successfully claim a Workers' Comp lien on monies recovered in a related med mal case. In Borrowman v. Prastein, M.D., et al, the plaintiff suffered an injury to his heel after a fall at work in April, 1995. Shortly after his fall, plaintiff filed his Workers' Comp claim. Surgery was necessary due to the injuries. After surgery, the plaintiff developed a bone infection. The ortho surgeon prescribed antibiotics. When the infection worsened, another surgery was necessary. The defendant doctor also prescribed two more aggressive antibiotics, Vancomycin and Gentamycin. Although the bone infection cleared, the plaintiff experienced significant health problems associatiated with the use of the Vancomycin and Gentamycin. Ultimately the plaintff suffered irreversible damage to his inner ear. The two antibiotics should not have been prescribed without close scrutiny of the patient. In October of 1997, plaintiff filed suit against the various medical providers for the injuries he had suffered at their hands. In January of 2000, the plaintiff and his employer settled the Workers' Comp claim. Plaintiff's employer then asserted that it was entitled to some of the funds that were recovered in the Malpractice case. The plaintiff disagreed and ultimately the trial Court held that the employer was entitled to a large portion of the plaintiff's medical malpractice settlement.

Both parties appealed. In deciding the matter the Court determined that the Employer was aware that plaintiff had brought an action against the medical providers. The employer however, had not attempted to insert itself into the settlement disussions between the plaintiff and doctors. Furthermore, the Settlement Agreement used in the Comp claim failed to make any mention of the Med Mal case. The Court ruled that under those circumstances, the employer couldn't assert any sort of lien on the med mal proceeds. The lower court's ruling was reversed.