The Illinois Appellate Court has affirmed a request for a new trial in the wrongful death case against a nursing home where a doctor failed to recognize and diagnose the symptoms of a pulmonary embolism.
The case arose from Mary Sikora’s request for a new trial. She claimed that the nursing home doctor did not realize that the symptoms experienced by her late husband, Chris Sikora, were caused by a pulmonary embolism, not bacterial pneumonia.
The Illinois Appellate Court was split on whether a Golden Rule argument asking the jurors to view the situation from the perspective of the defendant was merely “technically improper” or should be treated as “never appropriate.”
When a nursing home employee told Chris Sikora that she wanted to call an ambulance to take him to a hospital, he initially refused but then quickly acquiesced — apparently within a minute of his initial refusal.
The defense did not allege contributory negligence, so the trial judge granted plaintiff’s motion in limine No. 9, which asked for a ban of all references to his momentary hesitation about going to the hospital.
During closing argument about Dr. Nirali Parikh’s differential diagnosis, her attorney asked the jurors “to evaluate this case for Parikh from a prospective analysis. Stand in her shoes on that warning.”
The judge sustained an objection and instructed the jury to disregard this comment.
Later in the closing argument, the defense team was trying to build on the theme that Chris Sikora was supposedly responsible for a crucial delay. Lawyers said simultaneously, “Once Mr. Sikora agreed to go to the hospital” and flashed a slide on a projection screen that read: “Once he agreed to go, we did go to the hospital, he would have had a CT scan, which would have shown a PE (pulmonary embolism), which would have resulted in some type of therapy (TpA) being given and his life would have been saved.”
The jury found in favor of Dr. Parikh. However, the judge ordered a retrial and the appellate court permitted an immediate appeal from that decision under Illinois Supreme Court Rule 306(a)(1).
One line of argument, which this court has repeatedly found to be improperly eliciting passion, prejudice or sympathy from the jury, is asking it to place itself in the position of the plaintiff or the defendant.
Because alleged improper comments must be viewed not in isolation, but within the context of the entire closing argument, some Golden Rule arguments, while technically improper, may not elicit passion, prejudice or sympathy from the jury. See Offutt v. Pennoyer, 36 Ill.App.3d 194 (1976).
The court added that as a general principle, it is improper to ask the jury to place itself in a position of a party; however, it limited that principle to only when the comment was “calculated to arouse the jury’s passions and prejudices.”
During the closing argument, Dr. Parikh’s lawyer attempted to summarize plaintiff’s theory of the case, namely the hypothetical timeline of events had Sikora been transferred to the hospital earlier and remarked “once Sikora agreed to go to hospital.” Accompanying this statement was a projection screen with a slide that read, “Once Sikora agreed to go, we did go to the hospital.”
While Dr. Parikh’s lawyer did not state that Sikora initially refused to the transfer to the hospital, to which the court’s in limine order had barred reference, counsel’s statement was nevertheless implicitly barred by the court’s in limine order. As a result, Dr. Parikh’s lawyer violated the trial court’s in limine order with her statement and visual aid. The court found the remark to be highly prejudicial, and given its position of being present at the moment of the error occurred compared to our position of reviewing a cold record, we have no basis to reject its finding that the violation of the in limine order was highly prejudicial.
In a medical-malpractice case, it is never appropriate and it is always an error when a lawyer asks the jury members to place themselves in the shoes of the physician. This is because the jury does not have the medical training and experience that would be necessary to understand the decision-making process of the physician in complying with the required standard of care.
Accordingly, the order for a new trial was affirmed by the Illinois Appellate Court.
Sikora v. Parikh, 2018 IL App (1st) 17273 (Sept. 28, 2018).
Kreisman Law Offices has been handling medical negligence lawsuits, wrongful death cases, nursing home abuse cases, nursing negligence cases and hospital negligence lawsuits for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Calumet City, South Holland, Blue Island, Inverness, Glencoe, Highland Park, Highwood, Lake Zurich, Crete, Deerfield, Warrenville, Hinsdale, Wheaton, Elgin, St. Charles, Joliet, Chicago (Midway, Hyde Park, Medical District, Wrigleyville, Chinatown, Andersonville, Wicker Park, Logan Square, Bucktown, South Loop), Lynwood, Lansing, Long Grove and Winnetka, Ill.
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