The Illinois Appellate Court First District Fourth Division, in its opinion filed on September 10, 2020, upheld a defense verdict in an Illinois medical malpractice case where the plaintiff alleged that the defendant physician negligently failed to diagnose him with sepsis, failed to refer him to the emergency room for treatment, and negligently performed an incision and drainage in an outpatient setting without first administering intravenous fluids and antibiotics, thereby causing bacteria and toxins to enter his system and toxic shock syndrome to develop, resulting in a below the knee amputation of both legs.
The plaintiff argued that the trial court committed numerous errors including: (1) failing to dismiss a juror for cause; (2) granting a motion in limine preventing one of his experts from testifying as to the defendant physician’s standard of care; and (3) allowing the defendant’s expert to testify about his personal practices despite a motion in limine prohibiting such testimony.
With regard to the plaintiff’s last argument, the plaintiff contended that he was denied a fair trial where one of the defendant’s experts, Dr. Zar, supported his causation opinion by testifying to a specific incision and drainage he had performed on his own daughter. The plaintiff argued that this testimony was unfairly prejudicial where it was not previously disclosed pursuant to Rule 213 and testimony regarding an expert’s personal practices had been barred by a motion in limine. In response, the defendant argued that Dr. Zar did not testify that this incident formed the basis of his opinion that the incision and drainage at issue did not cause toxic shock. The defendant further noted that the plaintiff did not object to Dr. Zar’s earlier reference in his trial testimony to performing an incision and drainage on his daughter.
With regard to the plaintiff’s argument, the Illinois Appellate Court stated, “The record reflects that during cross-examination and numerous recross-examinations, plaintiff’s counsel did not question Dr. Zar about the incision and drainage he performed on his daughter. On one redirect, which is pertinent to this appeal, in response to a question regarding whether he ever considers that toxic shock syndrome could develop from performing an incision and drainage procedure, Dr. Zar discussed the anecdote. Dr. Zar stated that the possibility of toxic shock syndrome was never on his mind and explained that he even performed an incision and drainage on his daughter’s belly button after it had become infected without such a thought. Dr. Zar went on to briefly explain that the incision and drainage he performed on his daughter, who had a fast pulse and a fever, was routine and he did not send her to the emergency room or administer intravenous fluids or antibiotics prior to the procedure. Plaintiff’s counsel objected to this testimony without stating a basis for his objection. The trial court sustained plaintiff’s counsel’s objection and Dr. Zar’s testimony concluded immediately thereafter. Plaintiff’s counsel did not move to strike Dr. Zar’s response.”
The Illinois Appellate Court held: “We agree with the trial court’s determination that plaintiff forfeited this issue by not objecting to the content of this testimony the first time it was raised on direct examination of Dr. Zar. A denial of a motion in limine does not preserve an objection to disputed evidence later introduced at trial … When a motion in limine is denied, a contemporaneous objection to the evidence at the time it is offered is required to preserve the issue for review … Absent the requisite objection, the right to raise the issue on appeal is forfeited … The same principle rings true for a party’s failure to raise an objection to a Rule 213 violation … In this instance, because plaintiff failed to object to Dr. Zar’s initial testimony regarding the belly button anecdote, we find this issue to be forfeited.”
The Illinois Appellate Court concluded: “In sum, finding no reversible error was committed by the trial court, we affirm its judgment.”
Source Ittersagen v. Advocate Health and Hospitals Corporation, 2020 IL App (1st) 190778.
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