Illinois Appellate Court Finds that Examining Physician Held Out as Expert is Not Subject to Medical Malpractice

In a medical malpractice case brought against an expert witness who was alleged to have misdiagnosed the plaintiff in a prior malpractice case, Philip W. Sandler sued Jerry J. Sweet, Ph.D., a clinical psychologist and neuropsychologist who was retained as a defense expert when Sandler sued Downers Grove-based Advocate Good Samaritan Hospital.

Sandler asserted that Dr. Sweet chose not to correctly diagnose the extent of the brain injury he allegedly suffered because of Advocate’s negligence.

The Illinois Appellate Court affirmed the judgment that dismissed the complaint against Dr. Sweet and explained, “Because physicians conducting medical examinations at the request of third parties assume a fundamentally different role from treating physicians, no physician-patient relationship exists between Dr. Sweet and the plaintiff and, therefore, Dr. Sweet owed no duty of care to the plaintiff.”

Furthermore, the trial judge was also correct in dismissing Sandler’s claim against Dr. Sweet for alleged breach of fiduciary duty “because it is duplicative of his medical negligence claim.”

And there was no error in dismissing Mr. Sandler’s claim for alleged common-law fraud, which was based in part on the reports Dr. Sweet submitted in the first case, because “witnesses enjoy an absolute privilege from civil suit for statements made during judicial proceedings.”

Justice Thomas E. Hoffman wrote in his opinion, “In our view, absolute privilege must extend to reports prepared by an expert witness which form the basis of the witness’ testimony.” The issue in the case on appeal was whether the plaintiff’s medical negligence claim against Dr. Sweet, an expert witness, retained by plaintiff’s adversary in the pending litigation, owed a legal duty to the plaintiff. In its analysis, the appeals panel looked to the analogous cases of Cook v. Optimum, 130 Ill.App.3d 180 (1984) and In re Detention of Duke, 2013 IL App (1st) 121722.

In the Cook case, the plaintiff, a claimant in a workers’ compensation case, was examined by a physician retained by his employer. When the physician refused to furnish the plaintiff with a report of the medical examination, the plaintiff filed suit, alleging that withholding the report damaged him because his treating physicians did not have access to it.

On appeal, the court held that the physician did not owe a duty of care to the plaintiff, including a duty to disclose medical information. The court explained that the physician did not agree to see the plaintiff for purposes of care and treatment, but rather for purposes of an examination on behalf of plaintiff’s adversary in pending litigation. In the Duke case, the plaintiff filed a medical negligence counterclaim against a court-appointed forensic psychiatrist, alleging that she improperly diagnosed and treated him as a sexual sadist.

Affirming the dismissal of the plaintiff’s medical negligence counterclaim, the appellate court held that no physician-patient relationship existed between patient and the forensic psychiatrist. Because physicians conducting medical examinations at the request of third parties assume a fundamentally different role from treating physicians, no physician-patient relationship existed between Dr. Sweet and the plaintiff, and therefore, Dr. Sweet owed no duty of care to the plaintiff. As a general rule, witnesses enjoy an absolute privilege from civil suits for statements made during judicial proceedings. The purpose of the rule is to preserve the integrity of the judicial process by encouraging full and frank testimony. In Jurgenson v. Haslinger, 295 Ill.App.3d 139 (1998), the court explained:

“The doctrine of absolute privilege rests upon the idea that conduct that otherwise would be actionable is permitted to escape liability because the defendant is acting in furtherance of some interest of social importance, which is entitled to protection even at the expense of uncompensated harm to an injured party. Absolute privilege provides complete immunity from civil action, even though the statements are made with malice, because public policy favors the free and unhindered flow of information. In the absence of such a privilege, a witness might be reluctant to come forward to testify, or, once on the stand, the witness’s testimony might be distorted by the fear of subsequent liability.”

The privilege has been extended to statements made to prior to the initiation of judicial proceedings, to out-of-court communications between attorney and client related to pending litigation, and to post-litigation statements an attorney made to a client. As a consequence, the absolute privilege of an expert witness extends not only to his or her testimony, but also to act and communications which occur in connection with the preparation of that testimony. Accordingly, the judgment of the circuit court which dismissed the plaintiff’s amended complaint is affirmed.

Sandler v. Sweet, 217 IL App (1st) 163313 (Aug. 4, 2017).

Kreisman Law Offices has been handling medical malpractice lawsuits, birth trauma injury cases, hospital negligence lawsuits and wrongful death cases for individuals, families and the loved ones who have been injured, harmed or killed by the negligence of a medical provider for more than 40 years, in and around Chicago, Cook County and its surrounding areas, including Naperville, Melrose Park, Richton Park, Palos Hills, Palatine, Park Ridge, Westchester, Romeoville, Gurnee, Merrionette Park, Matteson, Crete, Steger, Chicago (Albany Park, Gold Coast, South Loop, Englewood, West Rogers Park, Lake Calumet), Deerfield, Winnetka, Skokie and Niles, Ill.

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