Medical Malpractice Plaintiff Granted New Trial Over Defense Counsel Actions

Most community members have a basic idea of how the appeals process works in civil law cases. An appeal, of course, is essentially a “second opinion,” where a party who is unhappy with the result of a decision in a different court is asking for reconsideration. However, each Chicago medical malpractice lawyer at our firm has often explained that the rules regarding appeals are more complicated than simply asking another court to make a different decision. Not all appeals are created equal.

For one thing, there must be grounds for an appeal. That means that it is simply insufficient for any party to get an appeal simply because they did not like the outcome. Instead, specific errors of law or fact be alleged, whereby the moving party suggests to the appellate court that law or basic fact decisions were misapplied or other procedural unfairness occurred in the lower court proceeding. These grounds may challenge many decisions from evidence that was allowed (or not allowed) to be presented to decisions of summary judgment and motions to dismiss.

Perhaps most importantly, in any appeal there are many different lenses in which the appellate court (often referred to as the “higher” court) will look at the decision in the lower court. These different lenses are referred to as “standards of review” and they have a huge impact on the likelihood that any given appeal will be successful. There are actually half a dozen or more different standards and each applies differently depending on the grounds for the appeal. Perhaps the typical standard is “manifestly erroneous” meaning that the court will over overturn the lower court’s decision when a mistake was obvious-close calls do not count. At the other end of the spectrum, “de novo” review awards no deference to the lower court’s decision. This means that the appellate court will review the decision with completely fresh eyes.

Our Illinois medical malpractice attorneys realize that plaintiff appeals usually occur if a court ends the case early, via a motion to dismiss or summary judgment. On the other hand, it is the defense that is most likely to appeal following an unfavorable verdict or decision. This is the case in large part because, depending on the size of an award, some defendants feel like they have “nothing to lose.” If they appeal and lose they still have to pay the award anyway with the only loss being the cost of attorney’s fees throughout the appeals process.

It is much rarer for a plaintiff to appeal an unfavorable trial decision and win a new trial on review. However, according to a story in the ABA Journal this week, that is exactly what happened in one recent medical malpractice case. Following an unfavorable verdict, plaintiffs in the case appealed based on the egregious and prejudicial conduct of the defense counsel during the trial. The plaintiff’s medical malpractice lawyer explained how the defense lawyer used phrases like “working the system” to inflame passions unfairly against the plaintiff. Instead of trying to get to the truth of the matter, the defense attorney personally attacked the plaintiff’s treating physician and expert medical witness. In addition, during cross examination the defense lawyer apparently wet off on a range of tangents that touched on the lack of a judicial raises over the past ten years, among other irrelevant things. Fortunately, the appellate court noted the improper nature of the counsel’s actions and ordered a new trial.

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