Articles Posted in Experts

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In the recent Illinois Appellate Court decision of McChristian v. Brink, it was held that the defendant’s attorney, representing a podiatrist and the podiatry clinic, was not prohibited from calling a controlled expert (Ill. S. Ct. Rule 213 (f)(3)) podiatrist to testify at trial when this expert was also one of the injured plaintiff’s treating podiatrists and a member of defendant’s podiatry clinic.

This court held that the Petrillo doctrine does not preclude ex parte communications with individuals who serve as the “corporate heads and are the decision makers of the defendant corporation.” Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 601 (1st Dist. 1986). The Petrillo decision and the many cases following that basic principle is that defense attorneys are not allowed to retain an expert who works for the same professional organization where the plaintiff received medical care.

In the McChristian case, the court ruled that the defendant medical group and doctor could utilize an expert witness at trial who worked for the same clinic as the defendant. Recent cases have expanded the Petrillo decision stating that a treating physician’s status can now be imputed to expert witnesses in the same professional association, even if they practice in different fields of medicine.
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A medical malpractice lawsuit was filed by Beverly Coote on behalf of her mother, Phyllis Brevitz, against Dr. Robert A. Miller and Midwest Orthopaedics Consultants S.C. The issue in the case was whether the Coote’s expert had enough credibility to testify at trial. The trial judge ruled that Coote’s expert was inadequate and granted summary judgment in favor of Dr. Miller and Midwest Orthopaedics Consultants.

However, on appeal to the 1st District Appellate Court, the ruling was reversed finding that Coote’s medical expert, Dr. William C. Daniels, met the necessary qualifications to testify in this case.

“Based [on] our review of the record, we find that Dr. Daniels possesses the requisite knowledge and familiarity with the methods, procedures and treatment in this case to provide expert testimony.”
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Mary Leemputte came to the emergency room at Northwest Community Hospital in Arlington Heights, Ill., in April 25, 2011. She was admitted to this hospital suffering from severe abdominal pain, urinary tract infection, tachycardia or rapid heart rate and an elevated white blood cell count, which often is associated with an infectious process.

She had a history of chronic constipation and was diagnosed with a large bowel obstruction after a CT scan showed a large bulging at the site of a previous colon resection and anastomosis done in 2007.

One of the defendants, Dr. Jonathan Wallace, provided a surgical consultation that night. The doctor observed that her cecum was dilated as he reviewed the CT scan, determined her clinical presentation did not require immediate surgical intervention and ordered additional tests for further evaluation to take place the next morning.

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In November 2008, Anil R. Shah, a medical doctor who practices facial surgery and otolaryngology, performed several outpatient plastic surgery procedures for Daniel Green in the doctor’s Schaumburg, Ill., office. The procedures did not require general anesthesia and were performed under local anesthetic in Dr. Shah’s outpatient office.

Although Green was not given a general anesthetic, Dr. Shah gave him both Valium and Phenergan, medications designed to sedate a patient as well as prevent nausea.

Dr. Shah testified at trial that Green was lucid and talking throughout the operation. Dr. Shah also said Green was aware and able to understand instructions.

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Paulette Elher filed a medical malpractice lawsuit against Dr. Dwijen Misra Jr. M.D., seeking damages alleging that Dr. Misra accidentally clipped her common bile duct while performing a laparoscopic cholecystectomy. Elher wanted to have the court admit expert testimony where it would be stated that clipping a patient’s common bile duct during an otherwise uncomplicated laparoscopic cholecystectomy was a breach of the standard of care. She also claimed that negligence could be inferred from the improperly clipped bile duct under the doctrine of res ipsa loquitur.

The defendants in this case moved to exclude Elher’s proposed expert’s testimony on the ground that, because it was not supported by peer-reviewed literature or the opinions of other physicians, it did not meet the standards for reliability under the Rules of Evidence Section 702. Rule 702 is the rule of evidence regarding testimony by experts. The rule is in place to assist the jury or court in understanding scientific, technical or other specialized knowledge and to understand the evidence or to determine a fact in issue. A witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise.

The court of appeals in Michigan held that the trial judge had abused its discretion by incorrectly applying Rule 702 to exclude the testimony of plaintiff’s expert witness because the factors that the trial court considered were not relevant to the expert’s testimony, which did not involve an unsound scientific methodology or questionable data. Rather, the majority concluded that injuring the common bile duct violated the applicable standard of care called for a value judgment derived from training and experience. The majority agreed, however, with the trial court that the doctrine of res ipsa loquitur did not apply to plaintiff’s claim. The dissent agreed with the majority’s analysis of the res ipsa loquitur issue but concluded that the trial court did not abuse its discretion by excluding the testimony of plaintiff’s expert regarding the standard of care because no basis had been offered for the testimony apart from the expert’s own personal views. The defendants sought leave to appeal to the Michigan Supreme Court.

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Matthew Gulino, the husband of the plaintiff, Joanne Gulino, visited his primary care physician in October 2009 complaining of nausea, fatigue, shortness of breath, chills and lightheadedness. The doctor diagnosed him with anxiety and prescribed Xanax after several tests showed the symptoms were not heart related.

Gulino returned to his doctor’s office two days later because the anti-anxiety medication wasn’t relieving his symptoms. Without doing any other tests, the doctor suggested that he see a psychiatrist.

The next day, Gulino visited the emergency room at Palos Community Hospital in Palos Heights, Ill., for the same symptoms. Based on Gulino’s reported symptoms and his previous anxiety diagnosis, the emergency room physician concluded that he was experiencing an acute anxiety reaction and prescribed strong anti-anxiety medication.

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Kent Higgins inhaled chlorine gas at the Holiday World Amusement Park when the ride he was on malfunctioned. Higgins suffered chronic asthma and reactive airways dysfunction syndrome, or RADS, as a result of the alleged negligence of the defendant, Koch Development, the owner of Holiday World Amusement Park.

Higgins, the plaintiff, hired a causation expert physician, but the doctor was barred. The issue was whether this expert could be substituted with his treating pulmonologist to act as his expert under the guidelines of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

The trial judge barred Higgins’s causation expert. He then offered up his treating pulmonologist to act as his expert on causation. The district court judge found that the treating physician was unqualified to opine on the effect chlorine gas has on the human pulmonary system. The basis of the barring was under the Daubert criteria and methodology, which was found to be too uncertain to determine its reliability.

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A Minnesota Appellate Court has held that expert testimony was required to prove a plaintiff’s claim that the paramedic’s negligent transfer was the cause of a patient’s ankle injury and later resulted in a leg amputation.

Mary C. suffered from various health problems and was a left-leg amputee. After she developed respiratory problems, Mary called an ambulance. When the ambulance arrived, she was being moved from her wheelchair to a stretcher. While she was being moved, she suffered a fractured right ankle. This fracture led to unsuccessful ankle surgeries followed by infection and ultimately the amputation of her right leg.

Mary C. sued the ambulance service, alleging its paramedics were negligent in transferring her to the stretcher and caused her fall and ankle fracture, which ultimately led to the amputation of her right leg. The defendant moved to dismiss, arguing that Mary had failed to serve the required affidavit of expert identification within the statutory time frame. The court granted defendant’s (the ambulance service) motion to dismiss.

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John Dux was alleged to have committed suicide because of a medical-malpractice incident at the Hines Veterans Administration Hospital in Maywood, Ill. The lawsuit brought by his daughter was filed against the United States government under the Federal Tort Claims Act, which included a claim for wrongful death.

The parties filed cross-motions for summary judgment. The U.S. district judge who considered the case had to decide whether Illinois precedent on proximate causation blocked the wrongful-death claim.

With two exceptions, Illinois follows the traditional rule that “a plaintiff may not recover for a decedent’s suicide following a tortious act because suicide is an independent intervening event that the tortfeasor cannot be expected to foresee.” Luss v. Village of Forest Park, 377 Ill.App.3d 318 (2007).

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Mary Mitchell underwent a total abdominal hysterectomy, but the doctor chose not to employ the appropriate prophylactic measures to prevent deep vein thrombosis and pulmonary embolism that was alleged to have caused or contributed to her untimely and unfortunate death.. The doctor who did the surgery, Dr. Amalendu Majumdar was an obstetrician-gynecologist. When this patient flashed signs and symptoms of a pulmonary embolism during the post-op visit that he made on Nov. 20, 2004, he did not recognize and/or treat the signs and symptoms of this emergency.

As a result of Dr. Majumdar’s failings, Mitchell, who was only 43 years old, died the next day from extensive bilateral pulmonary emboli. She is survived by her husband and two children, ages 14 and 24.

The defendant doctor contended that he complied with the medical standard of care, that he did provide proper intra-operative and post-operative prophylaxis and that the patient did not exhibit “classic’ signs of a pulmonary embolism at the post-op visit on Nov. 20.

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