Medical malpractice trials in Illinois are often complex affairs. While it usually does not take an expert to prove ordinary negligence, such as who caused a car accident, medical malpractice requires the use of expert witnesses to prove the plaintiff’s case against the defendant. Of course, the defense can then present their own expert witnesses to support their case. Thus, medical malpractice trials often boil down to a “battle of the experts.”
Appellate Court Orders New Trial in Malpractice Case Against Radiologist
It is common for medical malpractice defendants to try and use expert testimony to shift responsibility for the victim’s injuries. This does not necessarily mean trying to blame the victim, as you might see in a personal injury case involving a car accident. Rather, the defense may attempt to argue the victim’s injuries were the result of an underlying medical condition or some other cause that cannot be attributed to the defendant’s own professional negligence. The plaintiff is also entitled to present evidence to rebut or refute the defense’s theory of what happened.
A recent case from the Illinois First District Appellate Court, McCaley v. Petrovic, illustrates what can happen when a plaintiff is wrongfully denied their right to present rebuttal evidence in a medical malpractice case. Here, the plaintiff was the legal guardian of a teenager who died following what should have been a routine surgical procedure. After the trial judge barred one of the plaintiff’s rebuttal witnesses from testifying, however, the jury ruled in favor of the defendant. The First District held the trial judge abused their discretion and ordered a new trial.
Here is what happened. In 2016, the 17-year-old victim needed to have her tonsils removed. Following what appeared to be a successful tonsillectomy, the hospital discharged the victim and she returned home. Twelve days later, the victim went to the emergency room, complaining that she had been experiencing pain in her right leg and buttocks for the past several days.
A physician assistant in the emergency department ordered an ultrasound of the leg to rule out the possibility of a blood clot. A radiologist–the defendant in this medical malpractice case–reviewed the ultrasound images and determined it was normal. Based on this result, the hospital staff determined the victim was likely suffering from “muscle strain” and discharged her.
Two days later, however, the victim was found unconscious and unresponsive. While first responders were initially able to revive the victim, she died two days later at the hospital. The victim’s cousin, who was also her legal guardian, subsequently filed a wrongful death and survival action based on the alleged medical malpractice of the radiologist and the hospital.
The plaintiff’s theory was that the victim dies of a pulmonary embolism–a blood clot–that the defendant should have identified and diagnosed from the ultrasound taken in the emergency room. Had the doctor made a proper diagnosis, it was likely the victim would not have developed the pulmonary embolism in the first place.
As is common in Illinois medical malpractice cases, there was a lengthy period of discovery, during which time both sides disclosed and deposed over a dozen expert witnesses in support of their respective cases. One of the defense experts was a cardiologist who opined that the “most likely cause” of the victim’s death was not a pulmonary embolism, but rather a heart attack, which could not have been foreseen by the radiologist.
Just before the close of discovery, the plaintiff sought to add an additional expert witness, a pulmonary and critical care physician, who would rebut the defense’s cardiology expert and testify that the victim could not have died from a heart attack. The rebuttal witness agreed with the plaintiff’s other expert witnesses that a blood clot was what led to the victim’s death.
The judge assigned to hear pretrial motions in the medical malpractice case granted the defense’s motion to strike this rebuttal witness. The plaintiff asked the judge to reconsider, but that request was denied. Under the motion judge’s ruling, not only was the rebuttal witness barred from testifying, but the other experts retained by the plaintiff could not use the rebuttal expert’s report as part of their own testimony.
At trial, both sides presented their respective theories. The jury ultimately sided with the defense. The trial judge subsequently denied the plaintiff’s motion for a new trial.
But as previously noted, the Appellate Court did later grant the plaintiff a new trial. The reason was the Appellate Court agreed with the plaintiff that the motion judge committed legal error in excluding the rebuttal expert’s testimony from the trial. The First District noted that it was well-established under Illinois law that a plaintiff in a civil lawsuit has a “right to present rebuttal evidence in appropriate cases.” This included the right to present experts to rebut a medical malpractice defendant’s alternate theory as to how the victim died.
The defense maintained the rebuttal witness was not a rebuttal witness at all, but instead just another medical expert who “bolstered” the plaintiff’s theory that a pulmonary embolism killed the victim. Again, the Appellate Court disagreed. The defense presented evidence suggesting an entirely new cause of death. As such, the plaintiff was entitled to call additional witnesses to rebut this new theory. And the trial court’s exclusion of that rebuttal witness effectively deprived the plaintiff of their right to a fair trial.
Contact a Chicago Medical Malpractice Lawyer Today
The need for expert witnesses is just one factor that distinguishes medical malpractice cases from other Illinois personal injury claims. That is why it is important to work with experienced Chicago medical malpractice attorneys who understand the law in this area and have a proven track record of settlements and verdicts in such cases. So if you, or someone that you care about, has been harmed by a healthcare provider’s professional negligence, you should not hesitate to contact Kennedy Watkins LLC right away. We represent clients on a contingency basis, which means you do not pay for our help unless we win your case.