Appellate Law

Trial Court?s Abuse Of Discretion Not Enough To Reverse Medical Malpractice Judgment

By Steven R. Merican

Sandra Downey sued her doctor, Gary Dunnington, for medical malpractice when a mastectomy and reconstruction he performed resulted in permanent disfigurement. After a jury trial, judgment was entered for Dunnington.

On appeal, Sandra argued that it was reversible error to admit evidence that Dunnington?s father was a minister and his mother was a stay-at-home-mom. The Fourth District Illinois Court of Appeals agreed that the evidence was ?wholly irrelevant to the issues in this trial, and the use of such evidence constitutes an aberrant practice that should not be tolerated.?

Despite the trial court?s abuse of discretion in allowing the evidence, the appellate court ruled it was not bad enough to reverse the defense judgment.

To reverse the verdict, we would have to attribute to the jury a simplemindedness and even a viciousness that are implausible. We would have to infer that the jury considered Dunnington to be a paragon of virtue because, decades ago, he was raised by a father who was a minister and a mother who was a housewife. We also would have to infer that, in its verdict, the jury punished plaintiff because, compared to Dunnington, she had an unfortunate childhood. We choose to believe better of the jury. We conclude that the prejudice was not great enough to have affected the verdict.

The appellate court also took exception to Downey?s argument against a ?rigid? application of the ?harmless error doctrine.?

It is unclear what plaintiff means by applying the doctrine "rigidly." There is no question of rigidity or flexibility. Either the error is harmless or not. Either the error changed the result, or it did not ? Either the error "substantially prejudiced a party and affected the outcome below," or it did not ? And the burden is on the party seeking reversal to establish such prejudice ? The logic of incentives is undeniable, but the alternative to the plain-error doctrine would be requiring perfect trials. That alternative is impracticable.

Get the whole opinion, Downey v. Dunnington, No. 4-07-0681, modified on 8/21/08, by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on December 03, 2008 (boomark / email).