Medical Malpractice Case Shut Down by Plaintiff’s Late Expert Disclosure

Bozena Smith filed a medical negligence complaint against two doctors who were residents in 2006 when she claims she was injured in postsurgical treatment.

After the fact discovery was done by each of the parties, and the trial judge entered a deadline of Sept. 13, 2010 for the plaintiff to disclose any experts and opinions. Bozena disclosed one expert she had hired to render an opinion. In the Rule 213(f)(3) disclosures, the plaintiff stated that the doctor retained as an expert would provide expert opinions that both the residents, Drs. Murphy and McFadden, deviated from the standard of care in treating Smith, which caused her injuries. 

However, on Nov. 8, 2010, when the plaintiff’s expert doctor appeared for his deposition, he testified that he was withdrawing his adverse opinions against the residents and then testified that he held no opinions that implicated the residents in any substandard medical care of the plaintiff. In fact, the plaintiff’s expert testified as follows:

“It’s my opinion that residents in training should not be held accountable for these kinds of decisions, and, ultimately, actions of a resident . . . are the responsibility of the attending physician . . . I would like to scratch the two paragraphs [in my report] that implicates the residents.”

Afterwards, Bozena and her attorney had many opportunities to address the issue: Her only expert witness had withdrawn an opinion in which he criticized the defendants.She could have engaged another expert, who may have had critical opinions of the doctors, by asking the court for additional time to disclose experts. But instead, the plaintiff remained silent.  On Jan. 14, 2011, the court set the deadline for the defendants to disclose their experts in rebuttal to the opinions by the plaintiff’s only expert. The defendants complied with this deadline.

On May 2, 2011, the trial court ordered all discovery closed on May 19, 2011. The final case management conference was held on May 24, 2011, at which time the trial court and the parties agreed on a trial date of Oct. 17, 2011. 

The defendants then filed motions for summary judgment on Aug. 9, 2011, stating  that there was no evidence in the record criticizing the conduct of the two physician defendants. With the pending motion for summary judgment, the trial court gave time to the plaintiff to respond to the defendants’ motion for summary judgment and struck the trial date. 

The plaintiff filed a response with an attached unsigned proposed affidavit stating that she had an undisclosed new expert.In addition, the plaintiff filed the affidavit with a pleading entitled “Plaintiff’s Supplemental Answers to Rule 213(f)(3) Interrogatories” without leave of court. At the same time, the plaintiff filed a motion requesting time to file a signed affidavit of the new expert chosen by the plaintiff.

A hearing was held on the issue of plaintiff’s untimely disclosure of the new expert. The trial judge found that since the plaintiff waited until the conclusion of expert discovery, until defendants had already incurred the costs of an expert witness and presented them for deposition, the plaintiff was asking the court to reopen discovery, which was too late. The trial date was set and discovery was closed. The trial judge also found that if the plaintiff had stated  she needed an extension of time to disclose an additional witness that issue should have been taken up right after the deposition of the doctor who retracted his opinions criticizing the defendant doctors. Instead, there was no objection raised by plaintiff’s counsel, and the case proceeded. 

On granting the summary judgment motions brought by the defendants, the plaintiff appealed to the Illinois Appellate Court.  Plaintiff argued that the trial court erred when it barred the affidavit of the previously undisclosed expert witness. The court found that having disclosed plaintiff’s new expert for the first time, almost a year after plaintiff’s own expert exonerated the two defendants and testified they were not guilty of medical professional negligence and almost five months after discovery was closed, the plaintiff was simply too late. The appellate court found that defendants were surprised when plaintiff disclosed this new expert for the first time months after discovery was closed.  In addition, the disclosure of a new expert would be prejudicial to the defendants’ case because it would be unlikely that the defendants would be able to depose the new expert and retain their own expert to rebut the plaintiff’s new expert so close to trial. 

The appellate court justices stated that the trial court was correct in making its decision to bar the testimony of plaintiff’s new expert witness. The trial court did not abuse its discretion. Finally, the appellate court stated that the decision of the trial judge was not an error when it barred the affidavit of plaintiff’s previously undisclosed expert witness which was attached to plaintiff’s response to defendants’ motion for summary judgment and then entered judgment in favor of the defendants and against the plaintiff. The decision of the trial judge was affirmed. 

Bozena Smith v. Brian Murphy, M.D. and James McFadden, M.D., 2013 IL App. (1st) 121839.  Decision date is July 16, 2013. 

Kreisman Law Offices has been handling medical negligence cases, birth injury cases and elder abuse 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 37 years in and around Chicago, Cook County and its surrounding areas, including Niles, Chicago (Jefferson Park), Harwood Heights, Schiller Park, Western Springs, Chicago (Lake Calumet), Justice, Blue Island, Rosemont, Riverdale, Crestwood, Orland Park, Chicago (Lincoln Square) and Elk Grove Village, Ill.

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