The Appellate Court of Illinois Second District (“Illinois Appellate Court”) held in an opinion filed on December 29, 2017 that the trial court had inappropriately allowed evidence during an Illinois medical malpractice trial that the plaintiff’s expert had himself caused injury to a patient years before the trial, thereby overturning the defense verdict and remanding the Illinois medical malpractice case for a new trial.
The Illinois Appellate Court’s opinion succinctly set forth the underlying facts of the Illinois medical malpractice case:
“In 2010, defendant Dr. David J. Schleicher, who was employed by defendant Swedish American Hospital (Swedish American), performed a laparoscopic hysterectomy on plaintiff, Lisa Swift. Schleicher perforated plaintiff’s small bowel with three through-and-through holes. He failed to diagnose the perforations until four days later. Plaintiff developed sepsis, needed bowel resection surgery, and suffered additional complications requiring hospitalization and home health care.
Plaintiff filed a malpractice suit. Defendants admitted that they caused the injury, but they argued that the injuries were not a result of negligence. The jury agreed.
Plaintiff filed a motion for a new trial, which was denied. Plaintiff appeals, arguing that the trial court committed reversible error by (1) allowing evidence that plaintiff’s expert, Dr. Robert Dein, caused a bowel injury in 1989; (2) allowing cumulative defense testimony; and (3) declining to find the verdict against the manifest weight of the evidence.
We agree with plaintiff on the first point. Dein’s testimony regarding the 1989 injury was not relevant to impeach or affirmatively elucidate his testimony concerning the 2010 standard of care. The admission of the improper evidence appears to have affected the outcome of the trial, because it was not cumulative of any properly admitted evidence and because in closing defendants used the improper evidence to severely attack Dein’s integrity and to conflate the issues to be decided by the jury.”
The Expert’s 1989 Procedure
The plaintiff’s medical malpractice expert testified that in 1989, he performed a laparoscopic hysterectomy (in 1989, the procedure was new, no cameras were available for the entry, and it was a true blind (i.e., by-feel) approach). The expert perforated the patient’s large bowel during the initial umbilical entry – it was one puncture and not through-and-through.
After the expert made the entry, he put in a camera, and he saw that he was inside the bowel. The patient had a distorted anatomy, in that her large bowel adhered to her abdomen at the entry point. Right away, the expert called for additional doctors to perform corrective surgery. This was the only time that the expert ever injured a patient with a trocar.
Personal Practice Testimony
The Illinois Appellate Court stated that personal-practice testimony is testimony by a medical expert concerning how he himself typically performs the treatment at issue. Personal practice testimony is not universally admissible; rather, personal practice testimony is admissible if it is relevant to the credibility of an expert testifying to the standard of care or, in limited instances, if it affirmatively elucidates the expert’s opinion of the standard of care.
The Illinois Appellate Court stated that an expert’s standard-of-care testimony may be impeached by his personal practices. To be relevant for impeachment, personal-practice testimony need not outright contradict standard-of-care testimony; rather, personal-practice testimony need only be inconsistent with standard-of-care testimony.
The Illinois Appellate Court stated that any disparity between personal-practice testimony and standard-of-care testimony can be relevant to a jury charged with deciding which expert to believe – an expert whose personal practices are wholly different or who personally performs less than his estimation of the standard of care is more readily impeached than an expert who personally performs more than his estimation of the standard of care.
If an expert’s personal-practice testimony is inconsistent with his standard-of-care testimony, it is relevant for the purpose of impeachment.
In the present case, the Illinois Appellate Court stated that the plaintiff’s expert’s personal-practice testimony was not inconsistent with his standard-of-care testimony: the expert testified that in 1989, he injured a patient by piercing an adhered bowel during a true-blind insertion of the umbilical trocar. He recognized the injury before he pierced through to the other side of the bowel, and he called for immediate repair. In his opinion, he complied with the 1989 standard of care for a true-blind laparoscopic hysterectomy.
The plaintiff’s expert testified that the defendant in the present case deviated from the standard of care when he (1) injured the plaintiff by thrice piercing, through-and-through, a nonlooped bowel during a full-vision insertion of the left trocar; (2) did not recognize the injury at any point during the surgery; and (3) did not diagnose the injury in the four days that followed.
The expert’s alternative opinion was that, even if the defendant injured the plaintiff during the limited-vision insertion of the umbilical trocar, hitting a looped bowel, he deviated from the standard of care when he (1) failed to immediately recognize the perforation during the surgery, particularly given the large mass of tissue he would have pierced in such a scenario; and (2) failed to diagnose it in the four days that followed.
The Illinois Appellate Court stated that the plaintiff’s expert’s personal-practice testimony had no arguable relevance to credibility or impeachment of his primary opinion or his alternative opinion. The Illinois Appellate Court held that the plaintiff’s expert’s personal-practice testimony was not inconsistent with his standard-of-care testimony, and therefore it was not relevant for purposes of impeachment and the trial court should not have allowed it.
The Illinois Appellate Court stated that to be relevant for impeachment, the plaintiff’s expert’s testimony regarding the 1989 incident must be inconsistent with his standard-of-care testimony – it does not matter that his testimony that he complied with the standard of care while the defendant did not was inconsistent with the defendants’ theory that the defendant pierced through paper-thin layers.
The Illinois Appellate Court further stated that it would be unreasonable to allow testimony addressing the 1989 standard of care to affirmatively establish the 2010 standard of care in this case because the evidence in this case indisputably showed that the standard of care changed greatly over those decades.
The Illinois Appellate Court stated that a new trial is warranted when the improperly admitted evidence appears to have affected the outcome of the trial, and in this case, it did: the testimony about the 1989 incident was not cumulative of any other evidence; although properly characterized as personal-practice testimony, it came extraordinarily close to highly disfavored malpractice testimony; the defendants compounded the error by stressing it in closing argument and using it improperly to attack the plaintiff’s expert’s character; the trial court offered no limiting instruction; and, the defendants used the testimony about the 1989 incident not only in relation to the standard of care during the surgery, but also to argue that it supported their causation theory.
The Illinois Appellate court held: “Given that the jury might have returned a verdict for either side, and given our analysis of the factors discussed above, we determine that a new trial is warranted … The trial court committed reversible error in allowing the defense to educe evidence of [the plaintiff’s expert’s] 1989 procedure, under the guise that it would impeach or affirmatively elucidate [his] standard-of-care testimony. Accordingly, we reverse and remand for a new trial.”
Source Swift v. Schleicher, 2017 IL App (2d) 170218
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