A woman suing a Chicago hospital for malpractice can shield a physician's report from the hospital's lawyer, even though her lawyers first designated the doctor as an expert witness, only to redesignate him a consultant, to prevent scrutiny of his findings, Illinois' high court has ruled.
Chicago's Mercy Hospital and Medical Center had argued the tactic amounted to "gamesmanship" and should be disallowed.
The Illinois Supreme Court, however, disagreed, finding nothing wrong with the plaintiffs' moves.
"A party should be able to change its mind regarding who it presents as an expert witness where" the "report has not yet been disclosed," Illinois Supreme Court Justice Rita Garman observed in authoring the Nov. 19 decision.
Chief Justice Anne Burke concurred with Garman's ruling, as did Justices Lloyd Karmeier, Thomas Kilbride, Michael Burke and Mary Jane Theis. Justice P. Scott Neville Jr. did not take part.
Alexis Dameron sued Mercy Hospital and Medical Center, as well as medical staff, in Cook County Circuit Court, alleging negligence during 2013 surgery caused her nerve damage. Dameron disclosed to Mercy, through discovery, that Dr. David Preston would testify as an expert witness. Preston examined Dameron after the disclosure.
Dameron said two months later Preston was instead a consultant and would not testify, adding Preston had mistakenly been designated an expert. Mercy demanded Preston's examination report and Circuit Judge William Gomolinski ordered Dameron to provide it, but Dameron refused, saying the report was privileged.
Illinois First District Appellate Court ruled Dameron did not have to turn over the report, prompting Mercy to seek the state high court's ear.
Justice Garman found Mercy's arguments unavailing.
Garman noted Mercy learned almost one year before the trial date that Preston would not testify. As a result, Mercy could not claim it needed to see Preston's report to prevent Dameron from springing an "unfair surprise at trial," Garman said, quoting from Illinois Supreme Court Rules on procedure.
In addition, because Mercy never received Preston's report, it "could not have come to meaningfully rely on Dr. Preston's participation at trial as an expert witness," Garman pointed out.
Garman further said there was nothing to stop Mercy from having its own doctor examine Dameron, as Preston had done.
"Defendants present us with nothing more than a conclusory statement that they are unable to obtain the same information," Garman said.
Another tack by Mercy was to contend lawyers in other cases would engage in "impermissible gamesmanship" if Dameron was permitted to withhold the report.
Garman said, "Defendants make much of the fact that Dameron attempted to redesignate Dr. Preston as a consultant only after Dr. Preston conducted his examination and completed this report."
Nonetheless, Garman said she would not "speculate as to Dameron’s motive in redesignating Dr. Preston as a consulting expert," but even if Dameron wants to hide Preston's report because it undercuts her case, Mercy needs to argue "exceptional circumstances warrant disclosure of the information or request an independent examination."
Dameron has been represented by Karamanis Law Group, of Chicago.
Mercy has been defended by Donohue Brown Mathewson & Smyth, of Chicago.