February 27, 2020

The Appellate Court of Illinois First Judicial District Fifth Division (“Illinois Appellate Court”) held in its Order filed on February 7, 2020 that the trial court did not abuse its discretion by refusing to allow the Illinois medical malpractice plaintiff’s expert to perform a demonstration of a medical procedure before the jury that was dissimilar to the medical procedure actually performed on the plaintiff by the treating physician.

The Illinois Appellate Court further held that the trial court committed no abuse of discretion by preventing the plaintiff’s medical expert from offering opinions about the causation and permanency of certain of the plaintiff’s injuries, where the expert had no reliable basis for those opinions.

The Illinois medical malpractice plaintiff had an endoscopy to remove a dental appliance that she had swallowed during which her esophagus was perforated. Another surgeon performed a thoracotomy in which the plaintiff’s chest was opened and the tear was sewn up. The plaintiff allegedly suffered permanent injuries from the thoracotomy, which never would have happened had the defendant gastroenterologist not negligently perforated her esophagus in the first place.

The plaintiff alleged in her Illinois medical malpractice claim that the defendant gastroenterologist’s negligence resulted from his use of a latex hood in the course of the endoscopy to remove the dental appliance, and that he should have used an “overtube” instead, which would have reduced the chance of an esophageal perforation from occurring.

The plaintiff requested that her expert be allowed to manually manipulate the exemplar of her dental appliance into the distal tip of the overtube in front of the jury, so as to demonstrate that the actual flipper swallowed by plaintiff (which was smaller than the exemplar) would have also fit inside of the overtube. The trial court denied the plaintiff’s request, finding that the proposed demonstration, in which the expert would use his hands to manipulate the exemplar into the distal tip of the overtube, was not allowable because it was too dissimilar to the actual circumstances faced by the defendant gastroenterologist during the EGD he performed on the plaintiff, when he utilized an endoscope (not his hands) to pull the flipper out of her stomach. The trial did allow, however, the plaintiff’s expert to draw a diagram to aid the jury in understanding his testimony.

The plaintiff also sought to question her expert about his opinion that she suffers permanent constipation and pain caused by the thoracotomy that was performed to repair the esophageal perforation negligently caused by the defendant gastroenterologist. The trial court refused to allow the expert to testify as to such, finding that he had no reasonable basis to support his opinion regarding the cause and permanency of the plaintiff’s injuries.

The Illinois medical malpractice jury returned a verdict in favor of the defendants, and the plaintiff appealed.

The plaintiff argued on appeal that the trial court erred by: (1) refusing to allow her expert to demonstrate to the jury how an overtube could have been used to safely remove the dental appliance without perforating her esophagus; (2) precluding her expert from offering causation opinions as to her post-surgical bowel evacuation problems; and (3) preventing her expert from testifying about the permanency of her injuries.

Illinois Appellate Court Opinion

The Illinois Appellate Court held that the trial court was correct in finding that the plaintiff’s expert’s proposed demonstration was not substantially similar to the defendant gastroenterologist’s actual procedure performed on plaintiff, where: the defendant gastroenterologist utilized an endoscope to withdraw the flipper into a latex hood and out her mouth, while the expert planned to force the exemplar into the distal tip of the overtube with his hands instead of with an endoscope; the defendant gastroenterologist withdrew the flipper from the plaintiff’s stomach past the esophageal sphincter, where the esophagus made a significant turn, while the expert’s demonstration would take place on a flat table outside of an actual person’s stomach; and the defendant gastroenterologist had limited visibility due to the placement of the flipper inside plaintiff’s stomach, whereas the expert would face no similar visibility restrictions during his demonstration. “Accordingly, the trial court committed no abuse of discretion in refusing to allow [the plaintiff’s expert’s]
courtroom demonstration, and in denying plaintiff’s posttrial motion.”

The Illinois Appellate Court further upheld that “[t]he trial court found that without any expertise in performing thoracotomies, and without performing an examination of plaintiff, or reviewing a medical record of a recent examination, [the plaintiff’s expert] lacked information reasonably relied on by experts in the field to form an opinion about whether the thoracotomy caused plaintiff’s continuing constipation and pain and whether such conditions were permanent.”

Source Ackerman v. Yapp, 2020 IL App (1st) 182708-U.

If you or a loved one suffered injury during an endoscopy in Illinois or in another U.S. state, you should promptly find an Illinois medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your endoscopy medical malpractice claim for you and represent you or your loved one in an endoscopy medical malpractice case, if appropriate.

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