 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Nelson v. Upadhyaya9/23/2005
82 to support the theory that the standard of care changed in 1980 and the defendant complied with the applicable standard. The court held:
" he effect of allowing [the defendant's expert] to testify as to his opinion on the proper course of treatment * based on both pre- and post-1982 articles was to place irrelevant and highly prejudicial evidence before the jury, and as a result this cause must be remanded for a new trial." Karr v. Noel, 212 Ill. App. 3d at 584.
The trial court here allowed defendants to use materials published after 1990 as support for their interpretation of materials available before 1990 concerning the standard of care. But doctors in 1990 could not refer to any of these materials when they actually interpreted the available literature to decide how to treat a patient in 1990.
The use of later materials generated considerable discussion from the experts of the irrelevant issue of the correct interpretation of the materials published after the alleged malpractice. Thus, when defendants presented evidence that later publications advocated prophylactic antibiotics for mothers with probable GBS colonization, plaintiff's experts explained that those later publications referred only to mothers who had not shown any recent symptoms of GBS infection. The issue of the correct interpretation of materials published long after the medical treatment at issue could only distract the jury from proper focus on the issues in the case. See Rios v. City of Chicago , 331 Ill. App. 3d 763, 772 (2002). Here, as in Karr, the trial court allowed the defense to use irrelevant postoccurrence literature as an aid to interpreting the applicable standard of care. We find that the trial court abused its discretion, and prejudiced plaintiff, by permitting the defense to elicit evidence related to postoccurrence literature.
Defendants' experts adequately substantiated their opinions that the defendants did not violate the 1990 standard of care in their treatment of plaintiff and Tammy. But the trial court abused its discretion when it allowed defendants to introduce postoccurrence literature, unavailable to the treating doctors, as an aid to interpreting the applicable standard of care. Therefore, we reverse the judgment and remand for a new trial. On remand the court will have the opportunity to reconsider its decision to bar the testimony of Dr. Barkin.
Finally, we wish to comment on the exemplary conduct of the parties, their attorneys, the trial court and the jury throughout the lengthy proceedings. The pretrial hearings and the trial here show that persons involved in litigation can conduct themselves civilly and with integrity. We especially appreciate the trial court's concern for producing a good record to facilitate our review. But because we find that the court committed prejudicial error by allowing use of postoccurrence literature to establish the standard of care, we must reverse the judgment and remand for a new trial.
Reversed and remanded.
FITZGERALD SMITH and O'MALLEY, JJ., concur.
|