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12/21/89 Margaret Dolores O'brien, v. John Meyer Et Al.

December 21, 1989

O'BRIEN, PLAINTIFF-APPELLANT

v.

JOHN MEYER ET AL., DEFENDANTS-APPELLEES



Before trial, plaintiff made a motion in limine, seeking the preclusion of any references to the fact that her expert witness, a doctor licensed in Florida, had failed to pass the Illinois licensing examination on four occasions. Defendants sought to bar her testimony altogether on qualifications grounds. The court allowed the witness to testify and also allowed defendants to inform the jury of her past failures to pass the Illinois examination.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

MARGARET DOLORES O'BRIEN, Adm'x of the Estate of Dennis E.

554 N.E.2d 257, 196 Ill. App. 3d 457, 143 Ill. Dec. 322 1989.IL.1991

Appeal from the Circuit Court of Cook County; the Hon. Paddy H. McNamara, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. JOHNSON and McMORROW, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Plaintiff, Margaret Dolores O'Brien, brought a wrongful death and survival action based on the alleged medical malpractice of her deceased husband's doctors. Defendants are John Meyer, M.D., Meyer Medical Group, S.C., and Thomas R. Araujo, M.D. The jury returned verdicts in favor of all defendants. On appeal, O'Brien contends that numerous trial errors deprived her of a fair trial and that the jury's verdict is against the manifest weight of the evidence.

For the reasons that follow, we reverse and remand for a new trial.

Background

The decedent, Dennis O'Brien, died of a virulent form of lung cancer that apparently grows very fast and has an extremely low survival rate regardless of when the cancer is discovered. Plaintiff's suit was based on the alleged failure of Dr. Meyer to diagnose her husband's condition while treating him. She also alleged that his record keeping fell below the standard of care. Dr. Araujo, she asserted, also deviated from the standard of care by failing to take a lateral X ray of the chest and by failing to obtain a history or receive communication from the treating physician.

Defendants produced testimony indicating that they did not deviate from the standard of care and that the X rays taken in January and May 1977 did not display any abnormalities or anything suggesting cancer. They also produced testimony to the effect that earlier detection of the cancer would not have extended the decedent's life.

The lengthy trial record need not be summarized in detail because our reversal for new trial concerns procedural errors and not the merits of the malpractice allegations.

The record indicates that the initial trial was aborted the day after the plaintiff's first witness, Dr. Clarence J. O'Reilly, testified. The trial court apparently believed that plaintiff had attempted to elicit from Dr. O'Reilly information going to the standard of care despite the fact that he had not been called as an expert witness. Defendants had not objected to his testimony, which related Dr. O'Reilly's treatment of the decedent in April 1978, as well as the decedent's disclosure of his prior treatment in 1977 at the hands of the two defendants. When the court stated its concerns with the testimony of Dr. O'Reilly, one of the defendants' attorneys only moved ...


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