CHICAGO — A Cook County judge shouldn’t have let Advocate Health’s attorneys defend a medical malpractice lawsuit by repeatedly invoking irregularities in the plaintiff’s tax returns, according to a state appeals panel.
Toya Banks brought a $16 million medical negligence action against Advocate Health and Hospital Corporation following the death of her husband, Robert. According to court documents, Robert was admitted to Advocate Trinity with chest pains on Oct. 1, 2015, and discharged that day following a series of tests. He died of a heart attack on Oct. 2.
Although Banks objected during the trial, Cook County Circuit Judge Thomas Lyons allowed Advocate to cross-examine her expert witness regarding the couple’s returns from 2011 to 2015. The expert, Malcom Cohen, was testifying regarding the economic loss resulting from the death, but the defense raised concerns about Banks’ honesty because of inconsistencies in filing status, despite the couple being married the entire time.
Advocate’s lawyers told Lyons, in part: “There is absolutely no basis for this court to allow this economic claim because it is based on 11 years of fraud, and their expert, again agreed to that.”
A jury ruled in favor of Advocate in April 2019. Banks sought a new trial, a request Lyons denied in July.
The Illinois First District Appellate Court ruled on Banks’ appeal of that rejection in an order issued Sept. 7. Justice Carl Walker wrote the court's decision; Justices Michael Hyman and Daniel Pierce concurred. The order was issued under Supreme Court Rule 23, which restricts its use as precedent.
Banks argued Lyons shouldn’t have admitted the returns as evidence or let Advocate’s lawyers question Cohen about those documents. Advocate countered by saying Banks didn’t do enough during the trial to preserve the issue, but the panel disagreed, saying she objected during the trial and raised the issue in her post-trial motion.
The panel also said cross-examination of the returns was proper because the question of economic loss was central to Banks’ lawsuit.
However, the appellate judges found “defense counsel’s repeated inferences of criminal conduct were highly improper,” Walker wrote. “Advocate stated during the sidebar, ‘She spent the last 11 years lying to the government.’ During closing arguments, Advocate’s counsel stated: ‘You can’t tell the federal government you’re single then walk into this courtroom and accuse another man of lying. … You can’t have it both ways.’ Advocate’s counsel improperly painted Toya as a dishonest person who cheats the government, and it substantially prejudiced Toya.”
Advocate further contended the jury’s verdict was general, so Banks can’t prove the returns were prejudicial. It invoked the “two-issue rule,” which applies when there are multiple defenses or multiple aspects to the plaintiff’s theory of cause. Specifically, Advocate said it challenged Banks’ position on both the cause of her husband’s death and whether the hospital committed a breach of duty.
“However,” Walker wrote, “Advocate concedes that they did not present two defenses or two theories for the proximate cause of Robert’s death. Instead, Advocate simply attacked the sufficiency and credibility of Toya’s evidence. The two-issue rule applies only where a party is challenging a jury instruction. The jury instructions rejected Advocate’s arguments of a two-issue rule as there was only one theory on which the jury was instructed. Therefore, the two-issue rule does not apply to the verdict in this case.”
Ultimately, the panel said Advocate’s lawyers’ remarks during cross examination and closing arguments “were irrelevant, highly prejudicial and denied plaintiff a fair and impartial trial.”
The panel reversed Lyons’ ruling and remanded the case for a new trial.
Banks was represented on appeal by attorney Jack Kennedy, of Kennedy Watkins, of Chicago.
Advocate was represented by attorney Karen De Grand, of Donohue Brown Mathewson & Smyth, of Chicago.