Are you considering retaining an expert, in a medical malpractice case, who has a history of medical malpractice suits being filed against him or her? Have you just deposed an expert in a medical malpractice case and learned that they have been previously sued for medical malpractice? In either situation, you will likely have to determine whether the expert’s prior lawsuits will be admissible at trial. A recent Illinois appellate court ruling, Swift v. Schleicher, suggests that circuit courts should bar any evidence of medical malpractice lawsuits filed against the expert.
The issue of whether an opposing party may cross examine an expert in a medical malpractice case about medical malpractice cases that have been filed against the expert has historically been a matter of trial court discretion under Illinois law. Various trial courts in Illinois have excluded the evidence. In assessing the risks and benefits of retaining the expert or evaluating whether to proceed with trial, you may ask: “what if the trial court chooses to admit the evidence?” You may also need to consider not only the admissibility of the suit but also of the admissibility of the alleged malpractice itself. Swift addresses both of those issues.
Swift involved a bowel perforation that occurred during a laparoscopic hysterectomy. Swift v. Schleicher, 2017 Ill App (2d) 170218, ¶ 1. The defendants sought to cross examine the plaintiff’s expert about a hysterectomy he performed in 1989 in which he caused a bowel injury, resulting in a medical malpractice suit. Id. ¶ 9. The plaintiff argued that the evidence was inadmissible, since, “generally, experts should not be cross-examined about prior malpractice suits against them.” Id. ¶ 10. The defendants responded that the 1989 procedure was relevant for purposes of questioning the expert on why the standard of care applied to the defendant doctor but not the expert. The defendants also contended that the evidence was relevant as affirmative evidence of the standard of care. The trial court permitted cross examination about the 1989 procedure, but the defendants were not allowed to elicit testimony about the lawsuit. Id. ¶ 10.
On appeal, the Second District recognized that the evidence qualified as personal-practice testimony: “testimony by a medical expert concerning how he himself typically performs the treatment at issue.” Id. ¶ 81. “[P]ersonal-practice testimony is admissible if it is relevant to the credibility of an expert testifying to the standard of care or, in limited instances, if it affirmatively elucidates the expert’s opinion of the standard of care.” Id. “To be relevant for impeachment, personal-practice testimony need not outright contradict standard-of-care testimony”; rather, it “need only be inconsistent with standard-of-care testimony.” Id. ¶ 83.
After observing differences between the facts surrounding the expert’s 1989 procedure and the expert’s theory regarding the defendant doctor’s negligence, the Second District determined that evidence of the 1989 procedure did not qualify as admissible personal-practice testimony. Id. ¶ 96-103. Moreover, the Second District determined that the 1989 procedure was not admissible as affirmative evidence of the standard of care in 2010, since the standard changed greatly in that time frame. Id. ¶ 105-108. The fact that the testimony was not probative was sufficient to justify a finding that the trial court committed error in admitting the evidence. Id. ¶ 109. Additionally, the Court went on to observe that the evidence was prejudicial. Id. ¶ 109-110.
In discussing the prejudicial nature of the testimony, the Second District observed that “[c]ourts generally disfavor as irrelevant and unduly prejudicial the cross-examination of expert witnesses regarding their personal involvement as defendants in malpractice actions.” Id. ¶ 110. “Although [the testimony about the expert’s 1989 procedure was] properly characterized as personal-practice testimony, it came extraordinarily close to the highly disfavored malpractice testimony.” Id. ¶ 112 (emphasis added). The Second District concluded that, given the circumstances of the case, a new trial was warranted. Id. ¶ 111-114. Arguably, if the admission of personal-practice testimony constituted error that ultimately warranted a new trial, then the admission of testimony about lawsuits filed against an expert should too.