The Illinois Appellate Court affirmed a Cook County medical malpractice jury verdict in favor of the defendant doctors regarding the death of an orthopedic surgeon from an allegedly misdiagnosed malignant nasal polyp. The plaintiff’s appeal had focused on alleged violations of the Dead Man’s Act. Agins v. Otolaryngology Group, Ltd., et al., No. 1-08-3207.
The facts of the case begin when the decedent presented to an otolaryngologist complaining of a severe nose bleed for six days straight. On examination, it was found that the decedent had a 5-millimeter opening to the airway on the right side with severe scarring and a polyp on the anterior part of his right nose. The bleeding was stopped by the doctor through cauterization and the decedent was advised to get a CT scan and referred to another doctor with more expertise.
The decedent continue to follow up with the same physician group over the next few months. Then about five months later the decedent followed up with yet another physician who diagnosed the polyp as neuroblastoma cancer. While the polyp was removed, the decedent died from the cancer two years later.
In the Cook County medical malpractice lawsuit brought by the decedent’s widow, it was claimed that the otolaryngology group that the decedent saw several times during the summer of 2000 and who had cauterized the decedent’s nose bleed but did not otherwise evaluate or treat the decedent’s condition, which in turn led to the failure to diagnose the cancer. However, the defendant doctor claimed that he never saw the decedent in his office.
The Dead Man’s Act is a statute meant to protect the interest of a deceased party who can no longer speak for himself. Under the Act, testimony by witnesses regarding communications or transactions with the decedent is barred if the witness has an individual interest in the case and that interest is contrary to the decedent’s interest.
In Agins, the defendant doctor, whose interest is contrary to the decedent plaintiff, testified that the decedent failed to return to his office for evaluation and treatment after his first consultation. The trial court waived the Dead Man’s Act and allowed the testimony in this Cook County medical malpractice case, which plaintiff’s attorney cited as an error by the court. Plaintiff also argued that the trial court had erred in barring as hearsay the plaintiff widow’s testimony that the reason the decedent waited five months to see the specialist physician was that the defendant doctor had stated that surgery on the polyp could wait until then.
Upon a return of a verdict in favor of the defendants, plaintiff’s attorney filed a post-trial motion for a new trial based on the trial court’s evidentiary rulings regarding the Dead Man’s Act and a hearsay objection to testimony by the plaintiff’s widow. The trial judge had denied the plaintiff’s motion and entered judgment on the verdict, at which point the plaintiff’s filed an appeal with the Illinois Appellate Court.
The Illinois Appellate Court rejected the plaintiff’s argument and affirmed the Cook County medical malpractice jury verdict. This decision was based on testimony from witnesses that the decedent had visited the defendant doctor on multiple occasions, which then opened the door for the defendant doctor’s testimony. According to the Illinois Appellate Court fairness permitted the defendant doctor’s testimony that he didn’t have the opportunity to evaluate the decedent because the decedent didn’t come to him for an examination. Therefore the plaintiff’s objections would not change the course of the evidence or the case, so the trial verdict stands.
Kreisman Law Offices has been handling Cook County medical malpractice cases for over 30 years, serving those areas in and around Cook County, including Deer Park, Schaumburg, Oak Park, and Naperville.
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