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Medical Malpractice Expert Immune To Suit, Court Says

Medical Malpractice Expert Immune to Suit, Illinois Court Says

Via Law360

By: Y. Peter Kang

Law360, Los Angeles (August 7, 2017, 7:22 PM EDT) — An Illinois appellate court on Friday affirmed the dismissal of a suit accusing a psychologist serving as a medical expert in medical malpractice litigation of failing to properly diagnose a man’s brain injury, saying the doctor made witness statements in judicial proceedings so he is immune to civil liability.
A three-judge First District panel declined to revive Philip Sandler’s suit against Dr. Jerry Sweet, who had served as an expert witness for Advocate Good Samaritan Hospital in Sandler’s underlying medical malpractice suit against the hospital. Sandler claimed that Sweet’s psychological evaluation of him constituted medical negligence, breach of fiduciary duty and fraud.

The panel said expert reports written by Sweet, testifying that Sandler did not suffer a brain injury as a result of his suicide attempt while an inpatient psychiatric patient at Advocate, were statements made by a witness during court proceedings, which confers absolute privilege from a civil suit.

The appellate court shot down Sandler’s argument that because Sweet submitted the statements prior to giving trial testimony they weren’t a part of judicial proceedings, saying Illinois courts have recognized that the doctrine of absolute privilege is not limited to testimony while on the witness stand.

“In our view, absolute privilege must extend to reports prepared by an expert witness which form the basis of the witness’s testimony,” the panel wrote in a 15-page unpublished opinion. “If we held otherwise, the policies underlying such immunity would be undermined. Indeed, an expert’s courtroom testimony is the last act in a long, complex process of evaluation and consultation with the litigant. There is no way to distinguish the testimony from the acts and communications on which it is based.”

Citing case law, the panel also said Sweet’s statements are protected even though he wasn’t a court-appointed witness.

“The fact that Dr. Sweet was retained by an adverse party, as opposed to being appointed by the court, should not deprive him of immunity,” it said. “Under either circumstance, the fact remains that Dr. Sweet is a participant in a judicial proceeding, and it is that status on which absolute privilege rests.”

An attorney representing both Sweet and Advocate declined to comment. Representatives for the other parties did not immediately respond to requests for comment Monday.

In the underlying medical malpractice suit, Sandler accused Advocate of not doing enough to stop his suicide attempt while he was a psychiatric patient at the hospital in 2007. The suit ended in May 2015 with a $4.2 million jury verdict in favor of Sandler, according to news reports.

In the instant suit, the trial judge tossed the case after finding that Sandler did not have a patient-physician relationship with Sweet, and therefore the psychologist did not owe any duty of care to Sandler.

While the appellate court agreed with the trial judge’s finding in relation to Sandler’s medical negligence and breach of fiduciary duty claims, it said it wasn’t enough to beat the fraud claim since duty of care is not an element of a fraud claim. However, the panel tossed the fraud claim due to the aforementioned discussion of absolute privilege.

Justices Thomas E. Hoffman, Mary K. Rochford and Mathias W. Delort sat on the panel for the First District.

Sandler is represented by Ronald Bell of Ronald L. Bell & Associates PC.

Sweet and Advocate are represented by Andrea H. Kott, Kevin J. Clancy and Joseph E. Comer of Lowis & Gellen LLP.

The case is Philip W. Sandler v. Jerry J. Sweet Ph.D. et al., case number 1-16-3313, in the Appellate Court of Illinois, First District, Sixth Division.

–Editing by Alanna Weissman.