In May and June of this year we tried and won a difficult medical malpractice case in the Circuit Court of Cook County, Illinois. The plaintiff alleged that the defendant physician misread certain biopsy tissue slides of the plaintiff’s vocal cords in 2010, missing his cancer and allowing it to grow and spread.
The defendant denied the plaintiff had cancer cells in the tissue. Plaintiff was diagnosed with cancer of the vocal cords 14 months later in November 2011.
The rulings of the Judge were, in my opinion, wrong and constituted reversible error. For example, the plaintiff had been a very heavy smoker and drinker for many years and continued this even after the first biopsy. Even the plaintiff’s expert testified at deposition that the man’s vocal cord cancer was caused by the combination of heavy smoking and drinking, which together increased the risk of cancer dramatically. He also testified, along with our expert, that vocal cord cancers can develop in under one year.
The Judge barred any reference at all to the plaintiff’s smoking and drinking history, barred our expert from saying the man did not have cancer at the 2010 biopsy and then allowed the plaintiff’s expert to testify that he did have cancer at that time. She also further barred any reference to any error or wrongful treatment on the part of the plaintiff’s treating ENT specialist, whom we believed failed to properly refer the plaintiff for additional treatment long before he did so.
We re-raised these defenses during the trial and again objected each time we were denied the right to address any of the topics of these rulings, then made a complete record anticipating an appeal. We also made an offer of proof before each of the relevant witnesses with their deposition transcript and their answers to the 213 interrogatories. The Judge was clearly annoyed as we objected numerous times and made our record for appeal and was especially annoyed at our offers of proof.
Surprisingly, despite the restrictive rulings of the Judge, we won the medical malpractice case. The lesson here is to persist. Even if the rulings are against you, even if you really think you will lose the case, even if you are barred from eliciting the testimony you need – keep going strong. Make your objections. Make your offers of proof and most of all, make your key points to the jury over and over with each appropriate witness – even if you are annoying the Judge. It pays off, sometimes to your surprise!