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It’s about time plaintiffs get a complete and unequivocal win at trial and on appeal in a medical malpractice case. In Gapinski v Gujrati the jury returned a verdict of $1.727 million for the plaintiff in a case alleging medical negligence against a physician pathologist and her employer for the failure to diagnose cancer that resulted in the patient’s death. 2017 IL App (3d) 150502 (April 24, 2017). The Illinois Appellate Court considered multiple issues on appeal including whether the trial court erred when it barred the doctor and her practice from dual representation during the trial proceedings, an issue of trial management that is wholly within the judge’s discretion (concurring Justice Carter provides an informative exposition on the topic). The Appellate Court also reviewed, the allowance of a supplemental disclosure of the plaintiff’s expert’s opinion and the scope of the testimony of several of her expert witnesses, whether the complaint was barred by the statute of limitations based on when the plaintiff discovered the patient was injured, the denial of the defendants’ motions for a new trial based on the conduct of the plaintiff’s attorney, and finally whether the jury verdict was against the manifest weight of the evidence.

This case will likely be relied on by future med-mal plaintiffs because it appears to shut down many of the typical trial maneuvers of defendants, among them, double-teaming of counsel, accusing the plaintiff of exceeding the boundaries of expert discovery disclosures (when actually exceeding the rules themselves) and trying to limit expert testimony and making statute of limitations arguments that border on the frivolous. The court even foreclosed on defendants’ efforts to paint the plaintiff’s attorney as temperamental and unscrupulous rather than a motivated advocate seeking a fair recovery for his client’s widow. Let’s be clear, some of the defenses would certainly fuel the fire of any plaintiff’s attorney.

Among the more callous of defenses presented by the doctor was that the case was barred by the statute of limitations because the plaintiff suspected cancer before her husband was told by any doctors that he had cancer. This suspicion, according to the defendants, was enough to start the clock on the malpractice claim. Both the trial court and appellate courts rejected that defense and went with the actual day documented in evidence that the doctors gave the diagnosis of cancer. Even worse, the crux of the substantive defense was that the patient was going to die anyway, so the extra two years that cancer was allowed to ravage his body unimpeded didn’t matter. The treating radiologist even testified that he would not have altered his radiation treatment that he believed he was administering to a patient with a benign tumor, if he had known it was a malignant growth. The jury didn’t buy this argument and other defense theories; the trial and appellate court weren’t having any of it either. The court’s opinion in the Gapinski case is a rebuke for all-too-common defense trial tactics meant to marginalize and demonize victims of medical malpractice.

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