Kreisman Law Offices Professional Corporation
The plaintiff Mary Sikora was the independent administrator of the estate of Chris Allan Sikora, deceased. Sikora brought a lawsuit against the defendant, Nirali R. Parikh, M.D., and ManorCare of Elk Grove Village Ill., LLC d/b/a ManorCare of Elk Grove Village, in the death of her husband from a pulmonary embolism. The case went to a jury trial; the jury returned a verdict in favor of both defendants.
Sikora moved for a new trial based in part on Dr. Parikh’s attorney’s closing argument. Dr. Parikh’s attorney asked the jury to place itself in Dr. Parikh’s shoes. The attorney allegedly violated a pretrial in limine order, which barred any mention of Sikora’s initial refusal to be transferred to the hospital on the day he died.
The trial court agreed that Dr. Parikh’s attorney had made improper remarks during closing argument and found the cumulative effect of those errors sufficiently prejudicial to warrant a new trial.
Dr. Parikh appealed the trial court’s grant of a new trial arguing that her attorney’s statements in closing argument did not deny plaintiff a fair trial and thus, did not warrant a new trial. However, for the reasons given by the Illinois Appellate Court, the trial court’s order granting a new trial was affirmed.
The Illinois Appellate Court found that the defense counsel’s violation of pretrial in limine order, which barred any mention of the decedent’s initial refusal to be transferred to a hospital on the day he died was highly prejudicial and did in fact warrant a new trial.
The plaintiff’s second amended complaint framed the issue on appeal. In that complaint, the plaintiff brought survival and wrongful death claims against Dr. Parikh and ManorCare. In addition, the claim against ManorCare alleged violation of the Illinois Nursing Home Care Act (210 ILCS 45/1-101 et seq.).
The allegations were based on Dr. Parikh’s choosing not to diagnose and treat Sikora’s pulmonary embolism and ManorCare’s nurses’ failure to inform Dr. Parikh of changes in his physical condition. The second amended complaint also alleged that these failures contributed to, or caused, Sikora’s death on April 9, 2013 from a pulmonary embolism.
In the appellate court opinion, there was a footnote that showed that ManorCare and the plaintiff reached a settlement after trial; as a result, ManorCare was no longer a part of the litigation.
Both defendants denied the allegations of negligence and raised an affirmative defense. As the case went to a jury trial, the parties submitted several motions in limine. Relevant to this case is the plaintiff’s ninth motion in limine, wherein she requested that defendants’ expert witnesses be barred from testifying about Sikora’s initial refusal to be transferred to the hospital on the day he died.
During the hearing on that motion in limine, it came to light that around 11:50 a.m. on the day of the death, a nurse practitioner at ManorCare recommended that he be transferred to the hospital. Sikora initially refused; however, he later acquiesced apparently within a minute of his initial refusal.
It was argued by the Sikora family that because neither defendant was alleging comparative negligence, Sikora’s initial refusal to be transferred to the hospital was irrelevant to the issue of causation, especially because he agreed moments after his initial refusal.
Conversely, Dr. Parikh argued that Sikora’s initial refusal was relevant because plaintiff’s theory of the case was that Dr. Parikh should have taken various steps to diagnose and treat Sikora’s pulmonary embolism within a “very tight timeframe [sic]” and any deviation during this time could have prevented him from obtaining lifesaving treatment. The trial court granted the motion, finding Sikora’s initial refusal to be transferred to the hospital irrelevant to the issue of causation and accordingly barred any reference to it during the trial.
The case went to a jury trial in which the evidence revealed that a pulmonary embolism is a blood clot that has travelled from somewhere in the body through the bloodstream and ended up in a pulmonary artery, where the clot blocks the artery and prevents blood flow. The most common symptoms of a pulmonary embolism are shortness of breath, fatigue, a rapid heart rate, decreased oxygen levels, a stabbing chest pain upon breathing, a cough accompanied by blood, a feeling of weakness and a fever. Many of these symptoms can also indicate pneumonia, including shortness of breath, an elevated heart rate, a feeling of weakness, a fever, a cough, though the latter two usually are more prominent with pneumonia.
The appellate court opinion stated that in the spring of 2013, the state-of-the-art test to determine if a patient had a pulmonary embolism was a CT pulmonary angiogram, an imaging test that allows a view of a patient’s pulmonary arteries. ManorCare was a nursing home, not a hospital, and because of this distinction, it did not have the capabilities to perform a CT pulmonary angiogram on site. Similarly, ManorCare did not have an X-ray machine nor the ability to test blood on site. However, these tests could be done at Alexian Brothers Medical Center, a comprehensive stroke center and level 2 trauma center.
At the end of closing arguments of counsel, the jury returned a verdict in favor of Dr. Parikh and ManorCare. Thereafter, the plaintiff filed a motion for a new trial, arguing, in part, that the comment made by Dr. Parikh’s counsel during closing argument that the jury should “[s]tand in [Dr. Parikh’s] shoes” violated the long-standing rule that it is improper to ask the jury to place itself in the shoes of a party. Although plaintiff acknowledged that the trial court sustained her counsel’s objection to the argument, she posited that Dr. Parikh’s counsel compounded the impropriety by subsequently asking the jury to take “[t]ake yourself back to that time and evaluate for Dr. Parikh’s perspective,” a mere variation of the same improper comment.
The plaintiff also argued that the comment and visual aide from Dr. Parikh’s counsel about Sikora agreeing to go to the hospital were improper as they implied that he initially refused to be transferred to the hospital, which violated the trial court’s pretrial in limine order that had barred any mention of this fact at trial. The plaintiff argued that both violations were reversible error that mandated a new trial.
When reviewing the trial court’s ruling on a motion for a new trial, the Illinois Appellate Court will afford the trial court considerable deference (Wardwell v. Union Pacific R.R. Co., 2017 IL 120438, ¶ 11) and will only reverse the grant of a new trial only if the court has abused its discretion. Cimino v. Sublette, 2015 IL App (1st) 133373, ¶ 102.
The “golden rule” is the line of argument that has repeatedly found to be improperly used to illicit passion, prejudice, or sympathy from the jury by asking it to place itself in the position of either the plaintiff or the defendant. Because alleged improper comments must be viewed not in isolation, but within the context of the entire closing argument (Drews v. Gobeo Freight Lines, Inc., 144 Ill.2d 84, 103-03 (1991)), some golden rule arguments, while technically improper, may not illicit passion, prejudice or sympathy from the jury.
Because there was a violation in the trial court’s in limine order regarding the patient’s comment about going to the hospital or not, the court found the remark to be highly prejudicial and violated the in limine order. The appellate court also stated that viewing the trial as a whole, the trial court’s decision to grant a new trial was not so unreasonable, arbitrary, or fanciful such that no reasonable person would adopt the same view. Accordingly, the Illinois Appellate Court affirmed the grant by the Circuit Court of Cook County allowing the plaintiff’s motion for a new trial. There was a specially concurring opinion by Justice Gordon.
Sikora v. Parikh, 2018 IL App (1st) 172473 (September 28, 2018); Cook County, Illinois.
Kreisman Law Offices has been handling nursing home abuse lawsuits, wrongful death cases and medical negligence cases 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 Palatine, Palos Hills, Kenilworth, Lake Forest, Lansing, Gurnee, Oakbrook, Oak Forest, Highwood, Arlington Heights, Orland Park, Chicago (Back of the Yards, Little Italy, Greek Town, Wicker Park, Austin, North Lawndale, Garfield Park, Washington Park), Antioch, Long Grove and Wheeling, Ill.
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