Appellate Court Upholds Right to Reference Lack of Board Certification, But Reduces Final Verdict Amount in Babikian v. Mruz

An Illinois obstetrician appealed a $500,500 medical malpractice verdict against him in Lisa Babikian v. Richard Mruz, No. 1-10-2579. Dr. Mruz argued that the plaintiff’s attorney had prejudiced the Cook County jury against him. The appellate court disagreed and dismissed the defendant’s mistrial claims. However, the appellate court did grant the defense attorney’s request for a set-off, reducing the jury verdict by the amount of a prior settlement involving the same case.

The Babikian medical malpractice lawsuit arose out of preventable surgical errors Dr. Mruz committed while performing a diagnostic laparoscopy on Ms. Babikian. The purpose of the procedure was to determine whether or not Ms. Babikian suffered from endometriosis, a condition involving the cells lining the uterus. During the relatively simple surgical procedure, Dr. Mruz managed to pierce Ms. Babikian’s transverse colon.

This surgical mistake required Ms. Babikian to undergo corrective surgery, extensive hospitalization, and the placement and eventual reversal of a colostomy. In addition, the plaintiff developed abdominal pain, intestinal problems, and hernias as a result of the surgical negligence. The plaintiff and her now ex-husband brought an Illinois medical malpractice lawsuit against Dr. Mruz and the medical center where the surgery was performed.

During the Cook County medical malpractice trial, both parties debated whether or not the status of Dr. Mruz’s board certification was relevant and could be discussed. Dr. Mruz’s attorneys submitted a motion in limine to prohibit the plaintiff’s attorney from informing the jury that Dr. Mruz had failed the board exams to become certified in obstetrics and gynecology.

While doctors do not need to be board certified in order to practice medicine, it is a more stringent process than typical licensing and therefore carries more prestige. There is the assumption that if a doctor is not board certified, then he might not be fully competent in his specialty, an idea that would only be further supported if it were known that he actually failed the board exam.

Presumably, this is what the judge had in mind when he ruled that the plaintiff could not divulge the fact that Dr. Mruz had failed his boards. However, the judge did concede that if Dr. Mruz were to testify as an expert as to what the medical standard of care was in the case, then the plaintiff could inform the jury that Dr. Mruz was not board certified. When Dr. Mruz took the stand to testify as to the medical components of the lawsuit, the plaintiff’s attorney questioned his board certification status. Dr. Mruz truthfully replied that he was not board certified.

This certification issue was the subject of the defendant’s appeal. The defense argued that the acknowledgment of Dr. Mruz’s lack of board certification unjustly prejudiced the jury against him and contributed to the guilty verdict. However, the appellate court found that this admission did not violate the motion in limine and could not be used as a basis for a mistrial. Specifically, the appellate court referenced the ruling in McCray v. Shams, 224 Ill.Ap.3d 999, 587 N.E.2d 66 (1992), which held that “where a physician who has been sued for malpractice testifies as an expert, evidence regarding his age, practice, and failure to pass board certification examinations is relevant and admissible.”

While the defense was unable to completely reverse the Cook County jury verdict, it was successful in its attempts to get it reduced. Prior to the Illinois medical malpractice trial, the plaintiffs settled with the surgical center for $70,000. According to Ms. Babikian’s attorney, most of that money went to her husband at the time, with Ms. Babikian receiving little of the initial settlement. However, Dr. Mruz’s attorneys sought to have the large jury verdict entered against the surgeon reduced by that amount.

At the time of the settlement, Dr. Mruz was not yet a named party of the medical malpractice lawsuit. The appellate court held that the doctor was unable to ask the judge to apportion the settlement. Therefore, even though there was not a clear apportionment of the settlement between the plaintiff and her ex-husband, the appellate court ruled that the Cook County jury verdict would be reduced by the amount of the prior settlement, resulting in an ultimate jury verdict of $430,500.

Chicago’s Kreisman Law Offices has been handling Illinois surgical malpractice lawsuits for over 35 years, serving individuals and families in Chicago, Cook County, and surrounding areas, including Joliet, Cicero, Hoffman Estates, and Deer Park.