Illinois Appellate Court Reverses Medical Malpractice Jury Verdict Because Trial Exhibit Went Beyond the Fairness Limit

The plaintiff in this case, Lee Ann Sharbono, filed a lawsuit claiming medical negligence against the defendant Dr. Mark Hilborn, a board-certified radiologist. In the lawsuit it was alleged that Dr. Hilborn had chosen not to timely diagnose Sharbono’s breast cancer.  After the trial, the jury found for Dr. Hilborn and against Sharbono.  She filed post-trial motions for judgment notwithstanding the verdict, for new trial and for rehearing, all of which the trial court denied. This appeal was taken.

In August 2006, Sharbono was diagnosed with breast cancer in her left breast.  It had spread to her nearby lymph nodes under her left arm. She underwent extensive treatment including a modified radical mastectomy of her left breast.

The lawsuit in this case arose out of a diagnosis that was made by Dr. Hilborn in November 2004.  Sharbono, who was then 39 years old, went to see her primary care physician because she was experiencing fatigue, weight gain, aches and pain.  The doctor ordered a screening mammogram. That mammogram and an ultrasound were claimed to have been misinterpreted.

In December 2007, Sharbono brought the instant lawsuit against Dr. Hilborn and the hospital for which Dr. Hilborn provided services, alleging negligence and failure to timely diagnose her breast cancer. At the trial, it was alleged that Dr. Hilborn mistakenly misread radiographics in November 2004 when reviewing mammograms and an ultrasound. He concluded her breast-tissue region was benign.  The attorney for Hilborn used a PowerPoint presentation at the jury trial supposedly as “demonstrative evidence” with images from a treatise that included the test done on Sharbono.

The PowerPoint slides also included “headings” that reinforced the expert opinions for Hilborn about his diagnosis.

Sharbono’s lawyer objected to these slides, arguing that they had not been disclosed during discovery.  The defendant’s attorney said the exhibit had been delivered by e-mail at the start of the trial.  However, the attorney for Sharbono said that he did not see the slides before they were used at trial in the jury’s presence.

The appellate court reversed the verdict in favor of Dr. Hilborn explaining that:

(a)  The exhibit wasn’t demonstrative evidence because it was “used to help show the basis of defendant’s own medical opinion in this case and to support his diagnosis in 2004 that plaintiff’s lesion was benign.”  Not just “to teach or educate the jury about the before evaluative characteristics that radiologists use to evaluate breast lesions”;

(b)  The defense attorney failed to establish a proper foundation for the exhibit under Wilson v. Clark, 84 Ill.2d 186 (1981) and Illinois Rule of Evidence 703;

(c)  “The use of the diagrams and the conclusory images in Exhibit No. 18 to show the basis of defendant’s medical opinion was highly prejudicial in this case because it went right to the heart of the malpractice claim”; and

(d)  “Without timely disclosure, plaintiff was completely deprived of her ability to effectively cross-examine defendant as to such matters as the extent of his reliance on the treatise, whether the treatise was truly a reliable authority, whether the specific images and diagrams in question were reliable and whether it was reasonable for defendant to rely on the treatise in this case.”

The appeals panel stated that demonstrative evidence had no probative value in and of itself and was merely admitted or used as a visual aide to the jury.  The value of demonstrative evidence “rise in the human factor of understanding better what is seen than what is heard.” Smith, 10 Ill.App.2d at 75.

The primary test in determining whether demonstrative evidence is admissible or not at trial is its relevancy and fairness.  Demonstrative evidence should be admissible if it actually is used to illustrate or explain the testimony of a witness as to a matter that is relevant in the case.  With respect to fairness, even if the relevancy test has been satisfied, demonstrative evidence may still be excluded by a trial judge if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.”  Illl.R.Evid. 403.

Demonstrative evidence to be admitted must have a proper foundation.  In order to admit an item that is demonstrative, a witness with personal knowledge must be able to testify as to its accuracy in the way it is presented or stipulation has to be in effect.  Absent that foundation, demonstrative evidence may not be used. 

In this case, the appeals court found no reason why the images of the plaintiff from 2004 could not have been used except for the lack of foundation, which was not established as provided for in Wilson v. Clark.  It was error for the trial court to allow the defendant to use Exhibit 18 to show the bases of defendant’s opinion that the plaintiff’s lesion was benign and not cancerous in 2004. 

Furthermore, the use of the diagrams and the conclusory images in the exhibit to show the basis of the defendant’s medical opinion was highly prejudicial in this case because it went right to the heart of the medical malpractice claim.  In addition, since the defendant failed to sufficiently disclose in a timely manner as required by Illinois Supreme Court Rules 213 and 214, the exhibit would not be allowed anyway.  That is because the plaintiff was not given an ample amount of time, or any time for that matter, to effectively cross-examine the defendant doctor as the extent of his reliance on the treatise, whether the treatise was truly a reliable authority, whether the specific images and diagrams were reliable and whether it was reasonable for Dr. Hilborn to rely on the treatise in this case.  Given the circumstances, the trial court’s judgment is reversed and the case is remanded for a new trial.

Sharbono v. Hilborn, 2014 IL App (3d) 120594.

Kreisman Law Offices has been handling medical negligence cases, physician negligence cases, hospital negligence cases and birth injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Skokie, Deerfield, Palatine, Rolling Meadows, Oakbrook Terrace, Oakbrook, Bedford Park, Berwyn, Lincolnwood, Lincolnshire, Evergreen Park, Alsip, Crestwood, Harvey, Calumet City, Chicago (Morgan Park, Beverly, Lake Calumet) and Summit, Ill.

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