Impeachment of Medical Expert for Prior Inconsistent Statement in Section 2-622 Report Allowed By Illinois Appellate Court – Iaccino v. Anderson

The Illinois Appellate Court has found that a medical expert in a medical malpractice case may be impeached with the use of the physician’s §2-622 (Illinois Code of Civil Procedure) report as a prior inconsistent statement. This issue before the court was one of first impression in the state and was decided upon in Iaccino v. Anderson, No. 1-07-0207.
In the Iaccino birth injury lawsuit, the plaintiff’s attorneys alleged that the defendant doctors and hospital were responsible for the brain damage that the minor plaintiff, Jonathan Iaccino, suffered as a result of oxygen deprivation during his birth. The plaintiff’s attorneys alleged that the defendants’ medical negligent occurred as a result of their failure to monitor Jonathan’s fetal heart rate and their lack of response to the hyperstimulation of the uterus during his labor and delivery.

Gary Blake, M.D. provided a Illinois Code of Civil Procedure §2-622 affidavit as one of the plaintiff’s medical experts in Iaccino. When Dr. Blake signed the §2-622 report he stated that the decelerations recorded on a fetal-monitor strip were “variable decelerations.” However, at the trial, Dr. Blake testified that these strips showed “late decelerations” or “variable decelerations with a late component.”

During its cross-examination of Dr. Blake, the defendants’ counsel used the §2-622 report as a prior inconsistent statement. After the Illinois jury entered a verdict for the defendant doctors and hospital, the plaintiff’s attorneys filed an appeal arguing that the trial judge erred in permitting impeachment based on a statement in a §2-622 report and that the Illinois brain injury lawsuit should be retried.

In the appellate court’s opinion, it was stated that the §2-622 report was enacted in 1985 to curtail frivolous medical malpractice lawsuits. Section 2-622(a)(1) requires that the plaintiff or his attorney file an affidavit of merit with the medical malpractice complaint. That affidavit should state that the affiant consulted and reviewed the facts of the case with a healthcare professional. Furthermore, it requires that the healthcare professional reviewed the relevant medical records and materials before submitting a written medical report which affirms that there exists a “reasonable and meritorious” cause for filing an action.

The appellate court said that impeachment was permitted in cases where the §2-622 report was inconsistent with an expert’s trial testimony. The condition for using the report is that a proper foundation first be laid before it can be used as the basis for filing an impeachment claim. In addition, the report’s content must be materially inconsistent with the expert’s trial testimony.

In the Iaccino case, Dr. Blake had changed his opinion as stated in his §2-622 report when he testified under direct examination that he interpreted the decelerations as either “late decelerations” or “variable decelerations with a late component.” The appellate court determined that this difference between the physician’s report and his testimony was in fact inconsistent and as such was grounds for impeachment.

The appellate court went on to state that §2-622 does not prescribe the form of the written medical report, nor does it prevent the physician from qualifying his or her opinions to make clear that they are preliminary opinions subject to amendment or supplementation later on in the case.

The appellate court said that it would be up to the jury to assess the explanation given by the physician and the credibility of the doctor in trial testimony. In the Iaccino birth injury case the jury apparently found Dr. Blake’s opposing testimony to be inconsistent and his opinions to lack credibility. Therefore, the appellate court held that the expert’s written medical report prepared pursuant to §2-622 of the Illinois Code of Civil Procedure may be used against the physician as a prior inconsistent statement for impeachment purposes.

Kreisman Law Offices has been handling Cook County birth injury cases for more than 35 years in and around Illinois and Chicago, including Streamwood, Woodridge, LaGrange, Evergreen Park and Antioch.

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