Illinois Appellate Court Affirms Denial of New Trial Because of Absence of Expert Witness in Medical Negligence Lawsuit

Ferid Okic’s common bile duct was damaged during a routine gallbladder removal surgery. His injury went undiagnosed for over a month, requiring corrective surgery and significantly delaying Okic’s recovery. Okic sued his surgeon, Dr. Athanasios Diniotias, alleging that both the surgeon negligently performed the surgery and that he was negligent in providing postoperative care.

Most significantly, Okic did not retain an expert qualified to testify regarding the applicable standard of care for performing gallbladder removal surgery.

Just before the beginning of the trial, the trial judge granted several of the defendant’s — Dr. Diniotias’ — motions in limine, including ones barring him from presenting any evidence related to the performance of the surgery because of the absence of expert testimony on this issue. In any event, the jury found against Okic and in favor of Dr. Diniotias and on Okic’s remaining theory of negligence.

On the appeal by Okic, he challenged the trial court’s in limine rulings barring him from presenting evidence related to the surgery itself and evidence that he contended would have also supported his claim of postoperative negligence. Okic also argued that the trial court should have granted his motion for a judgment in his favor or, in the alternative, for a new trial on his claim of postoperative negligence.

The Illinois Appellate Court concluded that the trial court’s ruling precluding Okic from presenting any claim that Dr. Diniotias negligently performed the gallbladder removal was equivalent to granting of an untimely dispositive motion. It was improper for Dr. Diniotias to present or for the trial court to entertain such a motion under the guise of a motion in limine.

Because it was clear from the record, the appeals panel stated that Okic could not have presented evidence to support a claim of surgical negligence because of the absence of an expert and thus the Illinois Appellate Court found no reversible error. Furthermore, the appellate court concluded that the trial court did not abuse its discretion in its other in limine rulings and that the jury’s verdict in favor of Dr. Diniotias on the claim of negligent postsurgical care was supported by the evidence. Okic’s other arguments, which related exclusively to damages, were not addressed since there was no finding of liability.

Ferid Okic v. Fullerton Surgery Center, Ltd., et al., 2019 IL App (1st) 181074 (June 10, 2019).

Kreisman Law Offices has been handling medical negligence cases, misdiagnosis of cancer lawsuits, nursing negligence lawsuits, hospital negligence cases and birth trauma injury lawsuits for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Des Plaines, Westchester, Berwyn, Melrose Park, Franklin Park, Bloomingdale, Lake Zurich, Highland Park, Winthrop Harbor, North Chicago, Libertyville, Crystal Lake, Elgin, Carol Stream, Hoffman Estates, Downers Grove, Bridgeview, Chicago (Back of the Yards, McKinley Park, Archer Heights, Garfield Ridge, West Lawn, Chatham, Avalon Park, Woodlawn, Hyde Park, Bronzeville, Douglas, Chinatown, East Side, Pullman, Morgan Park, Mount Greenwood), Hickory Hills, Palos Hills, Palos Heights, Orland Park and Country Club Hills, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.