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Case Law Update: Experts in Medical Malpractice (9-30-09)

Dienstag v. Margolis, No. 1-06-1558 (9-30-09) affirmed that the trial court properly denied motion for JNOV or new trial on jury verdict of $5.95 million (reduced to $5.45 on remittitur) for failure to diagnose breast cancer case. Defendant physician was not prejudiced by one instance in which plaintiff’s retained expert referred to plaintiff’s attorney, who is also a physician, as “Dr. Chessick”, as it was done inadvertently, and defendant declined an offer of instruction for jury to disregard it. Conflicting expert testimony on standard of care and breach thereof is not evidence that so overwhelmingly favors defendant that no contrary verdict could stand. Defendant waived issue o f improper statements during closing arguments by not then objecting to counsel’s personal attacks on defendant. This Illinois case will impact medical malpractice cases.