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07/14/97 KAREN GOSSARD v. JYOTI KALRA

July 14, 1997

KAREN GOSSARD, PLAINTIFF-APPELLANT,
v.
JYOTI KALRA, M.D., DEFENDANT-APPELLEE, AND COVENANT MEDICAL CENTER OF CHAMPAIGN/URBANA, A NOT-FOR-PROFIT CORPORATION, DEFENDANT.



Appeal from Circuit Court of Champaign County. No. 94L1572. Honorable George S. Miller, Judge Presiding.

Rule 23 Order Redesignated Opinion and Ordered Published nunc pro tunc September 10, 1997.

Honorable James A. Knecht, J., Honorable Rita B. Garman, J. - Concur, Honorable Robert W. Cook, J. - Concur. Justice Knecht delivered the opinion of the court.

The opinion of the court was delivered by: Knecht

The Honorable Justice KNECHT delivered the opinion of the court:

Plaintiff Karen Gossard filed a complaint in the circuit court of Champaign County alleging medical malpractice against defendants Jyoti Kalra, M.D., and Covenant Medical Center (CMC). The trial court entered a directed verdict in favor of CMC, and the jury returned a verdict for Dr. Kalra. Gossard appeals, contending the trial court erred by (1) excluding evidence of Dr. Kalra's prior failed attempts to pass board-certification examinations in radiation oncology and (2) refusing Gossard's request to send certain medical records to the jury room. CMC is not a party in this appeal. We affirm.

In 1992, Gossard was diagnosed with breast cancer. As part of her treatment, Gossard was referred to Dr. Kalra for radiation therapy. Gossard contends during treatment Dr. Kalra negligently created radiation fields that were "inappropriate and excessively large," which resulted in burns, disfigurement, lymphedema, infections, and mental suffering.

Dr. Kalra filed several motions in limine. One requested the trial court prohibit Gossard from presenting evidence concerning Dr. Kalra's failures to pass the board-certification examination. A deposition from another case revealed Dr. Kalra received board certification in radiation oncology in 1986 after three failed attempts to pass the oral portion of the examination. Dr. Kalra passed the written portion of the examination on his first attempt in 1982. After hearing argument, the trial court granted Dr. Kalra's motion.

Prior to closing arguments, the trial court refused to send certain medical records to the jury room. Gossard presented redacted versions (exhibit Nos. 8A and 14A) of two medical records (exhibit Nos. 8 and 14), which she argued would eliminate concerns surrounding the larger records. Dr. Kalra argued the redacted versions unduly emphasized the aspects Gossard believed to be most favorable to her case. The trial court determined which exhibits would go to the jury room and excluded exhibit Nos. 8 and 14. After Gossard's counsel sought clarification whether the court's ruling excluded the redacted versions, the court responded those were-not in evidence. The trial court then explicitly reminded Gossard she may argue anything in evidence, even that not sent to the jury room.

Gossard first argues the trial court erred by barring reference to Dr. Kalra's earlier failures to acquire board certification. Gossard maintains these failures are directly relevant to Dr. Kalra's credibility in his expert testimony. Gossard argues O'Brien v. Meyer, 196 Ill. App. 3d 457, 554 N.E.2d 257, 143 Ill. Dec. 322 (1989), a case the trial court purportedly relied upon in granting the motion in limine, is flawed. Gossard contends two later cases declined to apply O'Brien in similar circumstances: Creighton v. Thompson, 266 Ill. App. 3d 61, 69-70, 639 N.E.2d 234, 239, 203 Ill. Dec. 195 (1994), and Kurrack v. American District Telegraph Co., 252 Ill. App. 3d 885, 889-901, 625 N.E.2d 675, 685-86, 192 Ill. Dec. 520 (1993).

Dr. Kalra contends the evidence was irrelevant and immaterial and, in the alternative, even if relevant, the probative value of the evidence was outweighed by its prejudicial effect. Dr. Kalra argues O'Brien is applicable and Gossard's assertion Creighton and Kurrack failed to apply O'Brien in analogous situations is incorrect. Dr. Kalra further argues even if the trial court committed error, the error was harmless.

A trial court's ruling on a motion in limine, whether to admit evidence, will not be disturbed on review absent a clear abuse of discretion. Swick v. Liautaud, 169 Ill. 2d 504, 521, 662 N.E.2d 1238, 1246, 215 Ill. Dec. 98 (1996). When a physician defending a medical malpractice suit testifies as an expert, evidence as to his qualifications as an expert, such as the physician's age and practice, is admissible. McCray v. Shams, 224 Ill. App. 3d 999, 1002, 587 N.E.2d 66, 68, 167 Ill. Dec. 184 (1992), citing Ward v. Epting, 290 S.C. 547, 556, 351 S.E.2d 867, 872 (1986). In general, any type of impeaching matter may be produced during cross-examination, because a purpose of cross-examination is to test the witness' credibility. Rush v. Hamdy, 255 Ill. App. 3d 352, 362, 627 N.E.2d 1119, 1126, 194 Ill. Dec. 477 (1993). Relevant evidence may be excluded, however, when factors of prejudice or confusion outweigh its probative value. Gill v. Foster, 157 Ill. 2d 304, 313, 626 N.E.2d 190, 194, 193 Ill. Dec. 157 (1993).

In O'Brien, the plaintiff's expert failed the Illinois licensing examination four times, but she later became licensed in Florida. The first district held evidence of the expert's past failed attempts to become licensed in Illinois was inadmissible as to her credibility. The O'Brien court reasoned:

"Once the qualifying threshold has been met, attempts to impeach the expert's opinion should have a clear link to facts and assumptions underlying the opinion, the methodology or testing used, the knowledge and experience of the expert in the matters to which he testifies, personal bias (such as the fact he or she is paid to testify), and so forth. Matters going to schooling and licensing are in a different category, we believe, because of their attenuated relevance to the medical opinion in issue. Also, there is a practical consideration of where to draw the line. Should juries be allowed to consider the school rank of a witness, or the fact that he or she failed a course? Few would argue that the answer to that question should be no." O'Brien, 196 Ill. App. 3d at 462-63, 554 N.E.2d at 261.

The O'Brien court examined Ward (290 S.C. 547, 351 S.E.2d 867), in which a South Carolina court found it proper to cross-examine an expert witness regarding her failure to achieve board certification in her specialty, because the court found it was relevant to whether the expert was qualified to meet her specialty's standards. The O'Brien court distinguished Ward, stating "if an expert gives an opinion relating to a specialty in which she has not obtained certification, her credibility as a specialist is in issue." O'Brien, 196 Ill. App. 3d at 464, 554 N.E.2d at 261. The O'Brien court believed permitting impeachment based on prior failures to pass the Illinois examination had little value considering the witness was ...


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