days in the jury deliberated over two days before reaching their verdict this was a classic battle of the experts and as in any medical negligence case the credibility of plaintiff's experts was paramount  we will first i will address primarily issue number one issue number four feet cross examine ation of dr macarthur on withdrawn opinions in the case and issue number three dr andrew young me an independent witness and the raising of the attorney client privilege with regard to dr byock ins reprimand at the onset of trial but the defense had entered by the court a motion and limiting number three preventing the introduction of any other litigation or negligence matters affecting the experts and this was entered re bachmann's direct examination during a luncheon break defendant inform the court that it wished to raise the issue of a reprimand issued by the illinois department of professional regulation and for his feeling to learn that a patient of his had a your analysis test showing blood in the urine the defendant maintained that this was relevant to challenge the credibility of dr byock incipience in this case we argued nearly an hour on this matter before the court in the quiet alternately world that it would be admissible in so doing the quite committed to reversible errors first the credit found that it had no discretion to keep out the reprimand if it was closely linked to the opinions of dr bach and in some believing and finding the court disregarded the teachings of clayton where this is quite emphasized that disciplinary actions and their outcomes are not to admissible what is admissible are restrictions on practice in this case dr botkin had given some testimony on direct already and indicated he was serving as and i agree it is not crafted as a strict limitation and i believe we stated in our briefs that there is no case directly on point saying under no circumstances will a bare reprimand ever be allowed into unless there is a restriction on practice but however it is what the creighton opinion teaches is approval of the circuit court carefully crafting and i met  agency could conduct announced an unannounced inspections of his practice and that a physician proctor was too for review periodic lee his patient records but not his criminal convictions or his history of disciplinary actions and then on the following page of the opinion in distinguishing how all the court went on to say unlikely jury  in midstream and trial and said well we know we have this eliminating order but we would like to bring in this evidence that dr bachmann was found negligent by an administrative body and discretion it mistakenly believed that it had no choice but to allow it if it met a certain test and that test is was there a clear link under o'brian between the basis for the r parkins opinions in this case so even if this court were to disagree with our position on the first issue we submit that the court erred in the second issue the court again refused to void and to determine and apprise itself of facts on which to base a ruling our position is the manifest weight of the evidence which govern this issue because the court had a duty to explore the underlying the reprimand and to make certain it knew what his opinions were in this case before finding a closely it was error to find a close link between a reprimand which had no effect on his practice for not learning of a result of your analysis test or doctor about that in this case and we never raised a head as one of our causes of action or issues of failure to diagnose and in correct diagnosis this was not a wrong diagnosis case wh made her differential diagnosis at two am on the morning of november fifth ok her differential diagnosis was a heart attack because he was a very sick man she kept him on the flux a very mild antibiotic it was his opinion that she failed to treat him in the absence of a firm diagnosis treating empirically she should have placed him on i v antibiotics broad spectrum not only because his infection was spreading which was a matter of record that she knew about it had spread from eight o'clock in the morning on november four what she knew was going on which she suspected was going on and to treat empirically and even if even if this could be construed as a failure to diagnose it had nothing to do with was reprimanded for that scenario had nothing to do with what he was testifying to that ever that's the connection absolutely so you're to diagnose being the issues on both of them and he's now speaking  testifying about someone else who may have failed to diagnose properly that's what you're saying no matter how you put it he was testifying as food and i know that that was the trial judge just position that in both cases there was a failure to diagnose our position as neither really involved a diagnosis but even if you if you use that language and say yes there was a failure to diagnose the severity of mistress to tears infection and dr bach and missed the lab and failed to find that one of his patients had blood in his urine as shown on in your analysis the underlying issues were not the same and that's the point of o'brian there has to be a close link between the evidence that's being offered to challenge the credibility and the issues in the case perhaps the judge is the trial judge to some comment sums it up best she said this is nonsensical close connection between what the case is about and what what the impeaching evidence is about and tellingly it was never used it was just thrown out there in front of the jury as the the presence of the jury no you've had forty five minutes on this we are going home in an hour and four minutes and therefore the jurors heard not only that our expert our only have spared who gave opinions on the assessment performed by the defendant not only that he was his credibility was challenged but that we had spent forty five minutes trying to keep it out and went to his opinions after we settled with christ hospital he had opinions that there were some missed nursing doses and if those doses had been given it also could have provided a better chance for a better outcome to mr cicare this was after the deep end and had her opportunity to treat and provide a better outcome for mr cicare had we not settle with christ hospital all of these opinions would have come in from dr macarthur because we settled they were no longer relevant to the point does the testimony about mr o sses and causation did not in any way impair the credibility of his opinion as to the defendant we brief this in a motion in  the court indicated if we kept our direct exam as tightly as we proposed she saw no reason why it should be allowed and however during the cross examination defendant did in fact examined dr macarthur on that miss doses and causation we have jack did we ask for a side bar ip action was over ruled we were told sure at lunch and the testimony was allowed to be elicited we needed a sidebar then and there to reinforce force what had been argued on our motion and lemony it was a or not to grant that motion and eliminate and it was here and not to give us a sidebar it was error to allow this evidence of nursing errors and proximate cause and put it forth to the jury as a confusing issue that number one dr macarthur had withheld opinions on direct examination and that we were prevaricating by withholding those opinions about either mr of going on in the case and number two it created a false causation issue that even if dr de filippo the defendant did not order the proper antibiotics when she had a chance to that somehow that that spoke  her because two later doses were missed cording to the nursing records and that that is not a lot these would have been if you try the case with  hospital each would have been proximate cause the jury could well have found that both dr di felipe and the nurses were negligent because they were no longer in that case it was not relevant it was nothing the jury should have been focused on and giving on top of that giving twelve o four under the circumstances was highly prejudicial to the plaintiff because it true the jury's attention to matters other than the there has to be some evidence of so proximate cause for it becomes relevant in addition the defendant cannot attempt to put forth its case by going beyond the scope of direct examination and cross examining an expert of the plaintiff have i answered your question your honor totally focused on defendant's theories of proximate cause in this case you should have been given our last of chance instruction and your honor sometimes i get it sometimes i don't in the courts below i'm happy when i get it almost ten years ago this court upheld one of our very lives and my loss of chance instructions in a wrongful death case unfortunately that it was the rule twenty three opinion but it would be very helpful to have some guidance on that so some courts don't feel that fifteen zero one always in any case satisfies instructing the jury there are times such as in a loss of chance case when that theory of proximate cause must be amplified and clarified for the jury i submit that when you have as in this case to a so proximate cause instructions going to the focusing the jury on defendant's theories at a minimum we should be entitled to not only i q but have the force of an instruction behind us when we argue and define what it means to see last chance under the law this is highly prejudicial and there is a supreme court case it's a product liability case mythological that deals with the importance of having each party having its  the case presented to the jury and that there are times when the i p i instructions just aren't enough i submit that in some loss of chance these things it's not enough and we need amplification and for witness the attorney client privilege was raised when i attempted to examine him and his evidence deposition we immediately raised this with the court dr entry only had followed the advice of both defense counsel consul was assigned to me at this point in time we had a right to know what was going on who arranged to have legal representation for this witness who did not request legal representation the attorney client privilege is always construed very narrowly that's how it should be construed in this case it was construed broadly the trial judge made a firm ruling that in no case can we go beyond that end of story so any and he argument of waiver here is is wrongly made because if we couldn't ask the witness the important questions how he may have become biased or prejudiced or influenced in his testimony what is the point of doing anything more and that's why we filed a petition for rule to show cause trying to come at the issue from another angle  it was all the more detrimental to our case he was held out as an independent treating physician when in fact he was assigned console and we believe based on one of the objections by issue in golden in the issue there was the supreme court ruling which barred cross examination of the defense medical experts as to their mutual membership is mirrored if judge exchange was within its discretion or typically in the absence of any showing  f how many mutual members are associated in the exchange or any explanation of how or to what extent individual members would profit in the end of it in the event of a favorable decision so in your case our case was if you only ha just cited that wasn't the issue with the attorney client privilege was raised and we want to get to the bottom of who's assigning this independent witness a lawyer appearing him for a step and giving him documents i mean we have a right to know that that's fundamental trial procedure and the attorney client privilege we sighted the cases it should not have those fundamental questions then and only then would we get to the bottom of the issue and morally relevant in front of the court it the bottom position retained consul to prepare an independent witness to give trial testimony now that's what i believe one time we could never get to get the door open because of the rulings made by the court so we don't know for a fact i can't represent to you that that's that's the solid truth but we just serve right to exploit and that's why if this morning again just as my name is john elaine henry and i represent the defendant mary di filipo the plaintiff first argument was regarding dr fox who was the expert infectious disease expert in internal medicine expert  gave opinions both on standard of care and proximate cause there was some discussion from the plaintiff regarding him that giving opinions regarding a diagnosis at multiple points during his testimony he gave opinions regarding tissue involvement he said she was quote quite sick he also said she didn't diagnose sepsis vs heart attack she just left that out there is possibility she said he said that she didn't diagnose a significant soft tissue infection she called it a mild cellulitis he was very critical of what she diagnosed there and then her subsequent treatment of the catholics which was a and i by addict he said it was a systemic infection which he didn't appreciate he said that it was she didn't appreciate the severity of the infection he said that there should have been a differential diagnosis that included necro multiple points he criticised her diagnosis of mild cellulite as versus what he thought was a much more severe problem which leads to back to judge mccarthy's ruling she said that in both cases prior case where he was reprimanded which was a failure to diagnose micro him attorney he material which is what in the urine and in this case which was a failure to diagnose he severe infection that that was enough of a nexus for that he handled these types of problems that he was on staff that he was leading infectious disease aspect of the hospital we believe that the broad scope of cross examination would allow us to go into it but i want to put it in misdiagnosis criticism that he had with that there is no restriction on this practice of medicine a reprimand doesn't officially restrict you but it is an official sanction from the essential regulation and the other legislation says gross negligence this isn't even regular negligence that could have been brought out which wasn't there was a very minor amount of information it could have been much more extensive also they gave the minimal uncrate in with regard to those say we only give a letter of concern they took at the third step which was which means that they had a finding that there was gross negligence that's the point of it being not a very minor you know it's not a minor thing in context but that wasn't used to inflame the file and the evil language strangers on a plane as far finds this out and say we want to put that up in our opening statement in the first question is did you receive a letter of reprimand for not reading or your analysis report i think you're for me kind of upset about  a limited fashion and that's what that was my main main point it was it is has been counsel is there anything that the court ruled on to prevent the doctor from plaintiff from bringing out that the doctor was not limited in this practice to the court make a ruling after that saying that they could not say that his practice was not limited in any way shape or form but the latest could have done that freely and they could have asked in that earlier it was talked about what  mccarthy said what listen you can make a record later they didn't that make an offer of proof they she was inviting them to revisit that they have dr back and question it's not that she didn't do a poor dear the reality of it was they didn't ask for an offer of proof they didn't have him talk about the background of this or give any more of course it was those two limited questions and nothing more was done about it on their standby that's why we say that they have in effect prevented the bigger scope of this if the judge were to not bring it in they they didn't use those steps and they've waive that indeed distinguished in allowing such a letter of reprimand in any person who is a retain defense expert as opposed to the defendant i certainly do because you're hired your credibility is coming in there they're wondering ok this person must be the greatest person in the world the way they're presented with their background this is the expert they're called experts so if you're an expert you should have a higher standard than a treating physician or a defendant in that case but do you agree is still should be in limited circumstances with this is allows it like this circumstance i do agree yes it's only d defendant i think that standard would warrant that some high scrutiny they're putting their credibility out there more so than just hired a doctor and that in its totality that's why i do believe this would have been harmless error if anything such internal medicine and infectious disease expert he testified that these nurses could have earlier when the hospitals in the case of the nurses could have given this unison nang hours earlier when ordered in two doses that were skipped and that would have confined the infections to the abdomen and it's important because this was a proximate cause of cross examination of dr mcarthur and judge mccarthy found it as such because he also said that no matter filipo would have done what she would have prescribed which would it would have been confined to the abdomen still would have only spread to the abdomen so we're talking theone day so that's why there could be a small proximate less defense saying that ok if the when these other persons were in their judgment her expert macarthur was talking against them he was playing both sides and he said oh if these drugs would have been given it would have just stayed in the abdomen but he also said earlier in his testimony about dr di filipo that that's where it would have gone anyway no matter what she did so there was an assault proximate cause argument and  know was an agent of the insurance company or anything like that one point i didn't mention was the motions in limine a that were brought up initially about the doctor by commission it was only about litigation it wasn't about disciplinary actions or anything there was no motion lemonade that was violated you will be very brief on on the balcony issue this doctor went thirty years without a disciplinary action against him and this has a point but he settled the case because bring it up and tell the jury about the thirty years of growth no no no we wanted to keep this out when we're in the impossible position once the reprimand comes in to have to go through all these steps to explain it yes i did make a mistake yes i did the right thing and i thought i wanted to settle this case yes because i settled this case there is a now an automatic review by the i age and yes i was surprised that i got a disciplinary mark on on my record because of this but i thought i was doing the right thing now that's a two edged sword and that's what we were  with and what do we do with this now how do we explain it we have to drag in the underlying issues and this is going to have a this is lots just and it's going to have a chilling effect on settlements because any time a doctor agrees to convictions that aren't supposed to be used to prove the person's guilty but tell a jury that and that that's what happened what why we were so prejudiced all they knew was no other doctor and defense counsel use this only your honors the judge never suggested that we file a petition for rule to show cause we were just told do what you think you have to do but i'm not changing my rulings which made it a futile effort so there cannot be a waiver we did file a petition for a rule to show cause against the lawyer as a last resort nobody wants to do these things the judge struck it from the record and said we're not going to do this after trial so we had no