December 29, 2020

The Appellate Court of Illinois Second District (“Illinois Appellate Court”) held in its opinion filed December 7, 2020 in an Illinois medical malpractice case: “the evidence in this case was closely balanced, making it highly probable that the repeated improper comments during closing argument compromised the integrity of the verdict … The comments were intended to inflame the passions of the jury, even though the comments concerned Advocate’s agent, rather than Advocate itself. The trial court abused its discretion when it found that the comments could not warrant a new trial, because they pertained to a party’s agent, rather than the party itself … We reverse and remand for a new trial.”

The 57-year-old plaintiff had back surgery at Advocate Health and Hospitals Corporation, d/b/a Advocate Good Samaritan Hospital (“Advocate”) that involved a laminectomy and the removal of a synovial cyst (first surgery). Following the first surgery, he experienced increased leg weakness.

On October 30, 2010, while still an inpatient at the hospital, the plaintiff was being helped to the commode when his bottom hit the commode in an uncontrolled descent, causing great pain and leg weakness that increased to the point of feeling “dead.” On October 31, 2010, he underwent a second surgery to investigate whether a screw was pressing on his nerves and causing the leg weakness (second surgery). During the second surgery, the doctor removed a screw, and, over time, his leg strength increased. The plaintiff was then transferred to Marianjoy Rehabilitation clinic, where he had to learn to walk again. At Marianjoy, he suffered a deep vein thrombosis (DVT) blood clot and, on November 19, 2010, an infection. The infection required a third, emergency surgery. Shortly after the third surgery, the hospital released the plaintiff as an outpatient, where he continued to improve. One year after the first surgery, the plaintiff’s leg strength had been rated a four-plus out of five and his pain had decreased but his weakness increased and his activities continued to be restricted.

Before trial, the trial court ruled on the parties’ motions in limine. Specifically, the court “barr[ed] any attorney or witness from making reference to, comments about, [and] barr[ed] any evidence which relates to the wealth, poverty or financial status of any party including reference to any other Advocate facility for purposes of showing wealth of the party.” It also found that “[i]t is prejudicial error to ask a jury to put itself in the position of a party.”

During closing argument, Advocate’s defense attorney told the jury: “So you were asked to award *** almost $800,000. And the first thing that popped into my mind was how many shifts, how many years, a nurse and a physical therapist in their life would have to work to earn $800,000” “So put yourself in [Nurse] Lisa Begler’s— ” “And I would submit to you that exploiting people’s lack of memory and having them on the stand for hours, and basically openly mocking them— ” “And then asking with all the expert witnesses that have made all this money in this case, then asking to award a sum of money that would take years for nurses and physical therapists— ”

The Illinois medical malpractice jury returned its verdict in favor of Advocate. The plaintiff filed post-trial motions.

The trial court did not believe that the complained-of comments in Advocate’s closing argument were so prejudicial as to result in the return of an improper verdict in its favor, further stating, “In this case it is clear, and I think no one disagrees, that Nurse Begler was not a party and that under the case law does make a difference.” The plaintiff appealed.

Illinois Appellate Court Opinion

The Illinois Appellate Court stated: “In considering the propriety of the closing argument, the overriding principle is that it is improper to appeal to the sympathy of the jury during closing argument, such that the jury’s decision is based upon that sympathy, undermining the integrity of the verdict. See id. Worse still is when an improper argument not only appeals to the jury’s sympathy but also injects an improper element into the case … This makes it more likely that the jury’s verdict was influenced by the improper comment.”

“Reversal is warranted where undue emphasis was placed on the comment, such that the jury’s verdict was affected by it … or where the verdict resulted from the passion or prejudice of the jury rather than from an objective consideration of the evidence … Additionally, when the evidence is close, such that a jury might reasonably return a verdict for either party, the attorney’s improper comments might warrant a reversal.”

The Illinois Appellate Court stated that in the present case, “Advocate wrongly informed the jury that the case was just as much about Begler’s reputation as it was about Konewko proving the elements of his negligence claim. Advocate injected an improper element into the case by inviting the jury to consider whether Begler, a sympathetic witness and a dedicated nurse, deserved a mark against her reputation. Although Konewko did not object to this opening comment, he later pointed out that it colored the comments that were to follow and showed a persistent scheme to play upon the jury’s sympathy and inject improper elements into the case. Also, it does not matter that Advocate did not use the words “at stake,” because the point that Begler’s reputation was “at stake” was clearly conveyed to the jury … —the suggestion of personal responsibility and the reference to financial position—extend beyond an appeal for sympathy and inject improper elements into the case … The third remark—asking the jury to put itself in Begler’s position—is a classic appeal for sympathy, and courts have expressly prohibited the phrase … Again, it does not matter that the phrase was not completed, because its meaning was clearly conveyed to the jury.”

The Illinois Appellate Court further stated: “By stating that Konewko, and his attorney, had the resources to hire expert witnesses “that have made all this money in this case,” it not only portrayed Begler as being of modest means but also portrayed Konewko as having vast means and able to bear a loss. This comment was also in violation of the court’s motion in limine order. Moreover, these comments were made following an otherwise well-fought case, where the evidence was closely balanced such that the jury could have reasonably returned a verdict for either side … The evidence was close, with favorable facts, as well as omissions and inconsistencies, on each side. This primed the jury to be influenced by appeals to its sympathy.”

The Illinois Appellate Court held: “a reversal is warranted. Advocate made four to five improper comments, as compared to two comments in Rush, one comment in Torrez, and one comment in Kass. The repeated nature of the comments shows an intent to appeal to the sympathy of the jury. Also, like in Rush, the comments violated the trial court’s motion in limine orders, here, to refrain from mentioning any evidence that relates to the financial status of the parties or asking the jury to put itself in the position of a party. Like in Rush and Torrez, the fact that the court sustained the objection to one or more of the comments does not preclude reversal, where the comments appealed not only to the sympathy of the jury but also injected improper elements into the case. While the court here did sustain and strike the offending comments, the better practice, particularly in the face of repeated improper comments, would have been to expressly instruct the jury to disregard the comments. Most importantly, like in Torrez and unlike in Kass, the evidence in the instant case was close, such that a jury might reasonably have returned a verdict for either party. Indeed, the appeals to sympathy on behalf of Begler appear to have influenced the jury’s deliberation, because the jury asked if it could answer the special interrogatory in the negative and find that Advocate’s agents had not acted negligently, yet still require Advocate to pay Konewko’s medical expenses.”

The Illinois Appellate Court further stated, “we think it matters not whether the comments refer to a party or the party’s agent, but whether the comments prejudice the jury in favor of or against a party. To hold otherwise would be to allow an attorney to make any number of improper, inflammatory remarks, perhaps in contravention of motion in limine orders, or at least the underlying purpose of those orders, and be excused merely because the comments pertained to a party’s agent and not the party itself … the implication that a nonparty will be harmed by an adverse judgment can be considered more egregious, because the implication has no purpose but to inflame the passions of the jury.”

The Illinois Appellate Court concluded: “We acknowledge that, generally, the decision to deny a motion for a new trial based on improper comments in closing argument is a matter of discretion for the trial court. Here, however, the trial court failed to exercise the full range of its discretion when it incorrectly found that the improper comments could not warrant reversal because they pertained to a nonparty. Further, to whatever extent the court believed that the jury fully understood that Begler was not a party to the case and that the jury had not been confused by Advocate’s comments, that belief is belied by the jury’s question during deliberation. When the jury asked if it could find Advocate’s agents (i.e., Begler) not negligent, but still order Advocate to pay Konewko, it showed that it was concerned about Begler’s reputation and wanted to ensure that she would not be a responsible party in the lawsuit. Moreover, answering the special interrogatory in a manner so as to relieve Begler from “blame” directed the outcome of the lawsuit. We are not persuaded by Advocate’s point raised at oral argument that several of the improper comments did not refer to Begler by name, but referred only to nurses in general. There was only one nurse in the room with Konewko at the time of the commode incident. Begler was the face of Advocate for the purposes of this case. Again, by pointing to Begler, Advocate accessed a figure that was more human, more relatable, and more sympathetic than it could ever portray itself, a business entity, as being. Likewise, we are not persuaded by Advocate’s point that the problematic comments were not unduly prejudicial when made in the context of a 45-minute closing argument following a nine-day trial. Advocate chose to risk the legitimacy of an otherwise well-run trial by repeating improper comments even after the court had sustained objections to the same. Advocate did so at its own peril. In sum, the trial court erred in determining that the comments at issue could not constitute reversible error, because they referred to Advocate’s agent, rather than Advocate itself. As such, we determine that the trial court abused its discretion. We reverse and remand for a new trial.”

Source Konewko v. Advocate Health & Hospitals Corp., 2020 IL App (2d) 190684.

If you or a loved one may have suffered serious injury (or worse) as a result of medical malpractice 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 medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

Visit our website or telephone us on our toll-free line in the United States (800-295-3959) to be connected with local medical malpractice attorneys who may assist you with your medical malpractice claim.

Turn to us when you don’t know where to turn.