Post Authored by Alexandra M. Verven
One hearsay issue that arises in medical malpractice claims involves statements made to practitioners, can be admissible both under the federal and Illinois Rules of Evidence. Under FRE 803(4), the admission of statements made for the purposes of medical diagnosis or treatment is an exception to hearsay. IRE 803(4)(A) also allows the admission of statements made for the purpose of treatment as a hearsay exception; however, it only allows medical diagnostic statements in contemplation of treatment. Il. R. Evid. 803(4)(A) The rule specifically makes “statements made to a health care provider consulted solely for the purpose of preparing for litigation or obtaining testimony for trial” inadmissible. Id. However, note that the rule finds statements made to a healthcare provider, even if consulted solely for purposes of litigation or obtaining testimony for litigation or trial under IRE 703, admissible. With this in mind, an example under the Illinois rule would be if a plaintiff testified at a deposition that she told her treating physician she “started having symptoms following a surgery, which was delayed.” The former part of the statement, where she “started having symptoms following surgery,” would be an exception to the hearsay rule, while the latter would remain inadmissible because it was not made for the purpose of medical treatment or diagnosis.
Further, it is well known that medical malpractice claims rely on the testimony and opinions of experts. Thus, it is important for practitioners to know how the Illinois Rules of Evidence compare to the Federal Rules. In general, FRE 702 describes the qualifications necessary for an expert witness–a person with expertise based on knowledge, skill, experience, training or education–to render an expert opinion. However, the Federal Rule adopted the Daubert test through amendment. The Daubert test requires federal courts to assess whether an expert witness’ scientific testimony. See Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). In order to determine whether an expert’s method is valid under Daubert, courts must consider whether the theory or technique in question (1) can be and has been tested; (2) has been subjected to peer review and publication; (3) the known or potential error rate can be determined; (4) standards controlling its operation and maintenance exists; and (5) has attracted widespread acceptance within a relevant scientific community. Kumho Tire Co. v. Carmichael later expanded the Daubert test to include all expert testimony. 119 S. Ct. 1167 (1999).
Illinois, however, takes a different and broader approach to expert testimony. While IRE 702 adopts FRE 702(a), which sets forth a witness’ qualifications to provide an expert opinion, it does not adopt the remainder of the rule. As a result, Illinois trial courts are not considered gatekeepers, unlike federal courts. Instead, Illinois specifically requires courts to apply the Frye test. Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923). Unlike the Daubert test, Frye provides that when expert witnesses make an opinion based on a novel scientific principle, they must show that “the methodology or scientific principle on which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs.” Id. Other than this, the Illinois rule is silent about admitting expert testimony.
FRE 703 allows facts and data relied upon by experts if they are reasonably relied upon to form an opinion. They can only be disclosed to the jury if “their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.” Fed. R. Evid. 703. IRE 703 similarly allows for facts or data that would otherwise be inadmissible, but are reasonably relied upon by an expert, to be disclosed to a jury. Those facts or data are admissible as long as the expert reasonably relied on them in order to form the opinion. While the balancing test set forth in the Federal Rule is not explicitly mentioned in the Illinois Rule, the balancing test in IRE 403 should be considered, which prohibits disclosure to a jury if the probative value of the facts or data is substantially outweighed by its prejudicial effect.
About the Author:
Alexandra Verven is an associate attorney with the law firm of Barker, Castro, Kuban & Steinback LLC. Alexandra has concentrated her practice in the area of medical negligence serving in the defense of hospitals, physicians, and medical staff members. Her medical malpractice defense work involves pre-litigation investigation and counseling, as well as guidance and recommendations to her clients in various risk management strategies. She also handles a wide variety of civil defense litigation where she represents not-for-profit organizations and health care facilities in cases involving premises liability and personal injury. Prior to joining Barker, Castro, Kuban & Steinback LLC, Alexandra worked as a law clerk at one of Chicago’s prevalent plaintiff litigation firms, where she gained invaluable experience she uses to defend her current clients.