Evidentiary Errors Require Reversal of a $1.5 Million Medical Malpractice Verdict

Cassiday Schade partner Trisha K. Tesmer obtained an appellate victory when the Illinois Appellate Court reversed a $1.5 million verdict and remanded the matter for a new trial against the defendant emergency room physician and his corporation. That victory became final January 29, 2014 when Plaintiff’s Petition for Leave to Appeal to the Illinois Supreme Court was denied.

The decision in Steele v. Provena Hospitals, 2013 IL App (3d) 110374, will be helpful to defense counsel on issues including: lay witness testimony of medical diagnoses, evidence of subsequent treatment, scope of expert cross-examination, and apparent agency.

The appeal arose from a medical malpractice jury trial against a hospital and an emergency room physician for care and treatment provided to a 20-year-old female on February 19, 2006. Prior to her visit to defendant emergency room, the decedent had been diagnosed with MS at another facility and was released on large doses of prednisone. Five days later, she presented at defendant’s emergency room complaining of severe back pain likely from a lumbar puncture. She made no complaint regarding an upper body rash noted by the ER physician. Blood work and radiology were ordered and the patient was discharged that night with instructions to follow-up with another care provider the next day. The day after her discharge from defendant emergency room, the patient presented to another hospital on February 20-21, 2006 and was seen by her internist, an emergency room physician, and infectious disease specialist. Not one of these subsequent treating physicians diagnosed the decedent with chickenpox. After a day at this facility, the patient was air lifted to another hospital and passed away.

Plaintiff’s lawsuit alleged that defendants failed to: diagnose the rash as a variant of chickenpox, recognize decedent was immunosuppressed, consult with an infectious disease specialist, and prescribe and initiate acyclovir therapy, which caused or contributed to cause the decedent’s death.

The Appellate Court held that the trial court abused its discretion:

First, the trial court erred in allowing lay testimony by three individuals with no medical training to opine that the rash “looked like chickenpox.” Illinois law provides that lay witnesses cannot testify as to a specific medical diagnosis or condition, however, prior to the Steele decision, there was a grey area regarding lay descriptions using common medical terms. Steele demonstrates a clear line between a mere description and an inappropriate diagnosis by a lay witness.  It was an error to allow laypersons and paramedics to testify that the decedent’s rash looked like chickenpox when they were not qualified to make such a medical diagnosis. Lay witnesses could be permitted to describe what they observed and give a description (i.e. she had a rash or red bumps), however, they cannot go so far as to make a medical diagnosis of the condition “chicken pox”. The trial court’s error was enhanced by allowing plaintiff’s mischaracterization of this lay witness testimony in his cross-examination of defense expert implying that even lay witnesses knew the rash was chickenpox.

Second, the trial court erred by excluding, as irrelevant to the standard of care and proximate cause, evidence of what subsequent treating doctors saw and concluded as to the evolving rash in the two days following the decedent’s emergency room visit at issue. Subsequent treatment not at issue is often barred by trial judges, however, the Steele opinion clarifies that there are situations when subsequent treatment can be relevant to the care at issue as it was material to what the rash looked like for diagnostic purposes. The reasons for the failure of other doctors (who treated the patient within days of the care at issue) to diagnose chicken pox was so close in time to defendant physician’s treatment such that this evidence was relevant and probative where evolving processes and diagnoses occur.

Third, the trial court erred in allowing plaintiff to cross-examine defendant’s proximate cause expert about standard of care. The trial court erred in permitting plaintiff to ask defendant’s proximate cause infectious disease expert standard of care questions outside the scope of his disclosures, direct examination, and qualifications. The Steele opinion is important in explaining the scope of cross-examination of a 213(f)(3) witness since, prior to this opinion, the parameters of Rule 213(g) allowing for the freedom to cross-examine had not been defined in this scenario which often arises in a medical malpractice case where a party hires one expert to testify as to standard of care and another as to causation. Since the purpose of discovery rules are to discourage strategic gamesmanship and plaintiff’s purpose in such a cross-examination was to suggest that the causation expert conveniently had no such opinions not because he could not offer standard of care opinions, but rather because they would have cut against defendant’s position. This improper questioning was permitted in error.

Finally, the Appellate Court granted judgment not withstanding the verdict regarding the plaintiff’s claim of apparent agency against co-defendant hospital. This will be an important case to cite in all future motions for summary judgment as to apparent agency. The adult patient’s mother directed the ambulance to the hospital. Thereafter, the patient signed the consent, which stated that most of the physicians she would see were not hospital employees or agents and disclaimed any reliance by the patient regarding the employment or agency relationship between the physicians and the hospital.