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Medical Malpractice Caselaw Update – Winter 2010

By Matthew J. Maddox

Jackson v. Reid: Attorney-Client Privilege

The defense disclosed that the defendant physician would testify that she did not breach the standard of care.  The plaintiff demanded that the physician produce all medical journal articles she considered authoritative on the issues at hand. Upon motion of the defendant, the trial court ruled that the physician’s research was subject to the attorney-client and work product privilege.  The plaintiff was barred at trial from asking any questions suggesting that the physician or her counsel concealed, hid or prevented disclosure of articles.  The trial court also denied plaintiff’s motion to bar the physician’s opinions.   Trial was held and the jury found in favor of the physician.

On appeal, the Third District analyzed whether a physician defendant who testifies as an expert witness waives the attorney-client privilege.  The court noted that litigants are given wide latitude in cross examining expert witnesses and that this can include questioning the witness about materials reviewed by the expert, even though not relied upon by the expert.   The court held that an expert witness who is also a party is subject to the same rigorous cross exam as is a non-party expert.  Thus, the appellate court concluded that  once the defendant elected to testify as an opinion witness that her expert opinions previously shared with counsel prior to trial are no longer protected because the privilege has been waived.  The appellate court held that the trial court’s granting of the motion in limine denied the plaintiff a fair trial and reversed the jury verdict in favor of the defendant.

The defendant filed Petition for Leave to Appeal to the Illinois Supreme Court.  That petition was recently denied.  Thus, the opinion in Jackson is controlling authority throughout the state.

It is a disturbing opinion.  At a minimum, it will now require a defendant physician to record for future reference all articles and other resources he/she may consult regarding the issues in the case.  They all will need to be disclosed, on appropriate request, to the plaintiff’s counsel.  The Jackson opinion might also be interpreted more broadly as it contains the statement that the physician’s “expert opinions previously shared with counsel prior to trial are no longer protected,”  as the attorney-client and work product privileges are waived if the physician intends to offer opinions at trial.  Thus, the plaintiff might be able to ask at the physician’s deposition what opinions he/she voiced to defense counsel on issues involving standard of care, damages and causation.  Obviously, this casts a significant chill on the free exchange of opinions and information that has been the hallmark of defending a physician.

Our firm is already seeing plaintiffs’ counsel utilize the Jackson decision in submitting requests for all communications between the physician and his/her attorney, as well as between the physician and his/her insurer.  We are refusing to comply with those requests, but it is unclear how the courts will rule.  The once inviolable privilege of communication between attorney and client has been compromised by the Jackson decision. 

Knight v. Van Matre: 2-622 Report Filing

When filing a complaint alleging healthcare malpractice, the plaintiff must file a report from an expert attesting that the claim is meritorious.   That report may be filed within 90 days if the statute of limitations was about to expire when the complaint was filed.   A portion of the medical malpractice reform legislation mandated that no extension of that 90-day period be allowed,  but in Lebron v. Gottlieb Memorial Hospital, the supreme court declared the reform unconstitutional.  

In Knight v. Van Matre, the Second District made clear that extensions are once again available.  The plaintiff filed a complaint, but because the statute was about to expire, did not file the required report.   On the 98th day following the filing of the complaint, the defendant moved to dismiss as the plaintiff had not yet filed the required report.  A few days later, the plaintiff moved for an extension of time to file the report.  The trial court, relying on the provision barring an extension (it had yet been declared unconstitutional), denied the plaintiff’s motion for leave to file the report and granted the defendant’s motion to dismiss with prejudice.   The plaintiff appealed.

The Second District reversed the dismissal, holding that Lebron struck all portions of the medical malpractice reform including the bar against extensions.   This would be expected; however, the appellate court not only clarified that the extension was available, but also implicitly held that the plaintiff need not even file for an extension within the initial 90 day period. 

Originally published in the Winter 2010 edition of Quinn Quarterly.