Articles Posted in Experts

In a split decision, the Kentucky Supreme Court has allowed a medical malpractice lawsuit to proceed against the defendant, a surgeon, who was alleged to have chosen not to inform a patient, the plaintiff, of a risk associated with a device implantation procedure. The trial judge dismissed the case for lack of a medical expert to support the plaintiff’s case.

In a 4-3 decision, the Kentucky Supreme Court agreed with the intermediate appellate court that overturned the trial court’s directed verdict. The claim brought by Jacqulyn G. Harrington had been dismissed. In her suit, Harrington had alleged that Dr. Alex Argotte chose not to warn her that the device, called an inferior vena cava (IVC) filter, which was designed to prevent blood clots, could break apart and become lodged in her lungs.

The trial judge threw out the case shortly after Harrington’s lawyer made an opening statement at trial saying that they were not going to call an expert witness because only “common sense” was required to determine whether Harrington had been properly informed of the risks of the procedure.
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After the jury found in favor of the treating physician, an appeal was taken by Zbigniew Adwent arguing that he was entitled to present testimony from a forensic document examiner in the lawsuit he brought against Dr. Richard B. Novak. The lawsuit alleged that Dr. Novak chose not to properly treat Adwent for back pain and other ailments. The Illinois Appellate Court for the First District stated that the examiner’s opinion that a page was missing from Adwent’s chart was conjecture.

“Mr. Adwent’s counsel clearly intended to use that testimony to suggest that Mr. Adwent’s medical records had perhaps been altered to cover the doctor’s inappropriate treatment of his patient.” The appeals panel also stated: “Such a use of this testimony would be completely speculative and highly prejudicial.”

The appeals panel also ruled that Adwent’s claim that the trial judge should have instructed the jury on contributory negligence also did not hold up because there was no reason to think doing so would have had any impact on the jury.
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In 2011, Sean Elliott filed a medical malpractice lawsuit against Resurgens P.C. and Dr. Tapan Daftaria. The lawsuit alleged that Elliott ended up with paralysis because treating physician Dr. Tapan Daftaria chose not to timely diagnose and treat an abscess in Elliott’s thoracic spine.

During the jury trial, he attempted to call Savannah Sullivan, a nurse. She was not identified as a potential witness in Elliott’s written discovery responses or in the parties’ pre-trial order.

The trial judge excluded Sullivan as a witness. After the jury returned a defense verdict for Resurgens and Dr. Daftaria, Elliott appealed to the court of appeals arguing that the trial judge’s exclusion of Sullivan was an error. The court of appeals in Georgia agreed, reversing the jury’s verdict and remanding the case for a new trial.
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The U.S. Court of Appeals for the 10th Circuit has held that an expert on language issues and healthcare could not testify that several healthcare providers had breached the standard of care in their treatment of a patient who had limited use of the English language.

Dalip Basanti, who was a native of India, received treatment for back and shoulder pain from doctors at the Salud Family Health Center and the Platte Valley Medical Center. She later became paralyzed from the chest down and learned that she suffered from a benign endodermal cyst that had compressed her spinal cord.

She sued the U.S. and others alleging liability for medical negligence. Basanti sought to admit the expert testimony of Dr. Glenn Flores, a physician specializing in language issues related to healthcare, who was to testify that the defendants had breached the standard of care that caused Basanti’s injuries by choosing not to use interpretative services to communicate with her. Basanti had limited English language proficiency. The defendants moved to strike Dr. Flores’s standard of care and causation opinions. The U.S. District Court judge granted that motion.
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Mariam Toraish, as the administrator of her deceased five-year-old son Adam’s estate, filed a medical malpractice lawsuit against James J. Lee, M.D., and his practice. Dr. Lee had done a tonsillectomy and adenoidectomy surgery on Adam, who died that same day from cardiac arrhythmia.

Toraish’s complaint alleged that Adam was at a high risk for postoperative respiratory difficulties and that Dr. Lee violated the applicable standard of care by choosing not to order that he be monitored overnight following surgery.

During jury trial, the trial court allowed the expert testimony of Simeon Boyd, M.D., a board-certified pediatric geneticist, who gave an opinion that Adam likely died of “cardiac arrest due to Brugada syndrome.”
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Betty Collins appealed from a summary judgment that was entered in favor of the defendants Ricardo Herring D.C. and Herring Chiropractic Center LLC. She filed a lawsuit for damages alleging medical malpractice with respect to the treatment of her knee, shoulder and back pain.

Collins’s knee was treated with a cold pack. The evidence in the case viewed in a light most favorable to Collins showed that the cold pack had been in the refrigerator for seven days, that it had not been thawed when Collins arrived for her appointment and that it was frozen hard on the day of her treatment compared to the treatment on other visits.

Collins reported that she felt heat when the cold pack was removed from her knee. She developed blisters on her knee following the treatment and later scarring.
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In the recent Illinois Appellate Court decision of McChristian v. Brink, it was held that the defendant’s attorney, representing a podiatrist and the podiatry clinic, was not prohibited from calling a controlled expert (Ill. S. Ct. Rule 213 (f)(3)) podiatrist to testify at trial when this expert was also one of the injured plaintiff’s treating podiatrists and a member of defendant’s podiatry clinic.

This court held that the Petrillo doctrine does not preclude ex parte communications with individuals who serve as the “corporate heads and are the decision makers of the defendant corporation.” Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 601 (1st Dist. 1986). The Petrillo decision and the many cases following that basic principle is that defense attorneys are not allowed to retain an expert who works for the same professional organization where the plaintiff received medical care.

In the McChristian case, the court ruled that the defendant medical group and doctor could utilize an expert witness at trial who worked for the same clinic as the defendant. Recent cases have expanded the Petrillo decision stating that a treating physician’s status can now be imputed to expert witnesses in the same professional association, even if they practice in different fields of medicine.
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A medical malpractice lawsuit was filed by Beverly Coote on behalf of her mother, Phyllis Brevitz, against Dr. Robert A. Miller and Midwest Orthopaedics Consultants S.C. The issue in the case was whether the Coote’s expert had enough credibility to testify at trial. The trial judge ruled that Coote’s expert was inadequate and granted summary judgment in favor of Dr. Miller and Midwest Orthopaedics Consultants.

However, on appeal to the 1st District Appellate Court, the ruling was reversed finding that Coote’s medical expert, Dr. William C. Daniels, met the necessary qualifications to testify in this case.

“Based [on] our review of the record, we find that Dr. Daniels possesses the requisite knowledge and familiarity with the methods, procedures and treatment in this case to provide expert testimony.”
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Mary Leemputte came to the emergency room at Northwest Community Hospital in Arlington Heights, Ill., in April 25, 2011. She was admitted to this hospital suffering from severe abdominal pain, urinary tract infection, tachycardia or rapid heart rate and an elevated white blood cell count, which often is associated with an infectious process.

She had a history of chronic constipation and was diagnosed with a large bowel obstruction after a CT scan showed a large bulging at the site of a previous colon resection and anastomosis done in 2007.

One of the defendants, Dr. Jonathan Wallace, provided a surgical consultation that night. The doctor observed that her cecum was dilated as he reviewed the CT scan, determined her clinical presentation did not require immediate surgical intervention and ordered additional tests for further evaluation to take place the next morning.

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In November 2008, Anil R. Shah, a medical doctor who practices facial surgery and otolaryngology, performed several outpatient plastic surgery procedures for Daniel Green in the doctor’s Schaumburg, Ill., office. The procedures did not require general anesthesia and were performed under local anesthetic in Dr. Shah’s outpatient office.

Although Green was not given a general anesthetic, Dr. Shah gave him both Valium and Phenergan, medications designed to sedate a patient as well as prevent nausea.

Dr. Shah testified at trial that Green was lucid and talking throughout the operation. Dr. Shah also said Green was aware and able to understand instructions.

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