A Chicago medical malpractice verdict was reversed after an Illinois appellate court found that the testimony of the defendant’s cardiology expert had violated an agreed order. Luis San Roman, et al. v. Children’s Heart Center, Ltd., d/b/a Rush’s Children’s Heart Center, et al., No. 1-09-1217, will be remanded to the trial court for a retrial that will exclude the defendant’s cardiology expert’s testimony.
The case involves allegations of surgical errors during a procedure performed on plaintiff Luis San Roman when he was a baby. Luis was born with cyanosis and was referred to as a “blue baby” because he was born with transposition of the aorta, a congenital heart condition that deprives the body of oxygen. In addition to his congenital heart disease, Luis also had a condition of narrowing of the pulmonary artery.
In order to correct his congenital heart defects, a heart procedure was performed shortly after his birth. Chicago pediatric cardiologist Carlos Ruiz, recommended that Luis undergo a heart catheterization process which would insert a stent into Luis’s left ventricle. This procedure was an alternative to open-heart surgery and was eventually performed at Rush-Presbyterian-St. Luke’s Medical Center.
However, during the heart catheterization procedure Luis’s mitral valve was torn and he went into heart failure. In addition, as a result of the surgical errors, Luis suffered a series of strokes as a result of the procedure. Luis also lost his vision and began to exhibit cognitive defects.
The San Ramon family filed an Illinois medical malpractice lawsuit against Dr. Ruiz and his employer, Children’s Heart Center, Ltd., which contended that Dr. Ruiz had failed to explain that the heart catheterization surgery was experimental. Furthermore, plaintiff’s attorneys asserted that open-heart surgery was in fact a better option for Luis’s condition than the heart catheterization.
Following the filing of the Illinois medical malpractice lawsuit in 2001, the defense attorneys hired Dr. James Lock, a Boston cardiologist, to be their consulting expert and to review the medical records. In Illinois, experts are used not only to review the facts of a case and advise attorneys on technical issues, but also can be used to testify on those technical issues that are beyond a lay person’s knowledge. Experts in Illinois medical malpractice lawsuits must be specialized in the same area of medicine on which they are offering opinions, which is why the defense attorneys hired a cardiologist to testify as to the care and treatment provided by the defendant Dr. Ruiz, a pediatric cardiologist.
The San Ramon case becomes complicated by the fact that in 2003, almost two years after their medical malpractice lawsuit was filed, Luis was referred to Dr. Lock for treatment of his heart disease. Dr. Lock began treating Luis, even going so far as to perform his own catheterization on the infant in 2003. At no point did Dr. Lock inform the San Roman family that he was working with the defendant attorneys in their son’s surgical error lawsuit, nor did the defense attorneys inform the plaintiffs or their attorneys of Dr. Lock’s potential conflict of interest.
However, in late 2003, the defendant’s attorneys did file a motion for a protective order that would secure Ruiz’s right to continue to use Dr. Lock as a retained expert/consultant despite his treatment of Luis. In addition, the defense attorneys also prepared an agreed order which would allow Dr. Lock to continue acting as a consulting expert and relay any matters related to his care and treatment of Luis.
In response, the San Roman family filed a motion to bar Dr. Lock from testifying at trial on the grounds that the physician-patient relationship created a duty of confidentiality. The motion also included a request for the defendants to produce any and all correspondence between Dr. Lock and Ruiz’s attorneys to determine if Luis’s confidences had been breached. However, the trial judge denied plaintiff’s motion to bar Dr. Lock’s testimony at trial.
Dr. Lock did end up testifying at the medical malpractice trial, both as a treating physician for Luis and as an expert witness for the defense. At the conclusion of the surgical error trial’s conclusion, the jury returned a verdict in favor of Dr. Ruiz and Children’s Heart Center.
The San Roman family appealed this verdict to a higher court, making the argument that the agreed order had clearly intended that Dr. Lock would continue on as a defense consultant, but that it in no way provided that Lock would later provide trial testimony that was adverse to his own patient. In Illinois a litigation consultant is an expert who works entirely behind the scenes and never testifies at trial. Therefore, by agreeing that Dr. Lock remain as a consulting expert for the defense, the plaintiff’s attorneys argued that they had not agreed that he would be testifying at trial. Furthermore, the family contented that Dr. Lock’s testimony at trial was highly prejudicial against Luis.
The appellate court agreed and reversed the jury verdict. A new trial was ordered, one that would no longer include Dr. Lock as a defense expert witness. The court held that “the parties did not agree that Lock could testify against his own patient…[and that] the agreed order did not support the court’s denial of the San Roman’s request to bar Lock from testifying at trial.”
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