News: A court of appeals in Illinois ordered a new trial in a medical malpractice case. In the initial case, the trial court ruled in favor of the defendant hospital due to the hospital’s closing arguments. The case involved a patient in the hospital’s care while recovering from back surgery. A hospital employee dropped the patient while helping him into a wheelchair. The nurse who dropped the patient was not a party to the suit. However, the court said this did not matter because the nurse was an agent of the hospital; therefore, the hospital could be held liable for her negligence.

According to the complaint, the nurse did not alert the patient as she began lowering him into the chair, nor did she use a walker or other support device. The patient sought nearly $800,000 for present and future pain and suffering and for present and future medical expenses, alleging the fall worsened his leg weakness and caused severe pain. Defendants countered by claiming the nurse did use a walker and did cue the patient when she began to lower him. Further, the leg weakness was a known and documented risk for the surgery the patient received. During closing arguments, the defendant attorney made comments plaintiffs considered improper. Still, the jury ruled for the defense. On appeal, the court ordered a new trial, finding the evidence presented in the case was fairly balanced, and the defense attorney’s improper comments might have skewed the jury, entitling the plaintiff to a new trial.

Background: In October 2010, the 57-year-old plaintiff underwent back surgery to remove a cyst. Immediately after the surgery, the patient experienced weakness in his legs. A few days after the surgery, while plaintiff was still in the hospital, a member of the nursing staff was helping the patient lower himself onto a commode when the patient unexpectedly fell. The impact, which caused the patient great pain, also exacerbated the feeling of weakness in his legs, to the point the patient described his legs as feeling “dead.”

A few days after the incident, the patient underwent a second surgery to verify whether a screw may have been pressing on his nerves, causing the leg weakness. During the procedure, the physician removed a screw and, over time, the patient started to regain strength in his legs. The patient was sent to a rehabilitation clinic to relearn how to walk. At the clinic, the patient suffered a blood clot and an infection, and underwent a third emergency surgery. The patient was dismissed, and gradually continued to improve.

The patient filed a lawsuit against the hospital alleging the nurse who helped him to the commode had breached the standard of care and, because she was acting as an agent of the hospital, the facility also could be held accountable. The plaintiff alleged the nurse failed to use an assistive device (such as a walker) to help the patient lower himself, failed to involve a second person as an additional aid to help the patient lower himself, and failed to instruct the patient as to when to sit or how to descend. Because of these three alleged breaches, the patient fell onto the commode, which caused him pain, suffering, and additional injuries.

Several pieces of evidence were disputed. Specifically, the nurse testified she had used a walker to assist, while the plaintiff denied this. During closing arguments, defendant’s counsel made several comments to which the plaintiff promptly objected. The jury returned a verdict in favor of defendants. The plaintiff filed a post-trial motion arguing the defendant’s improper closing arguments warranted a new trial. The trial court rejected the motion and ruled the evidence supported the verdict. However, on appeal, the court ruled the improper closing arguments warranted a new trial.

What this means to you: The appellate court’s decision focused on whether the non-party status of the nurse who allegedly dropped plaintiff was determinative in the case at hand. The court of appeals found the trial court failed to exercise its full range of discretion and had not carefully considered the fact that although the nurse was not a party to the case, her conduct was the object of the case, and it was unclear whether the jury fully understood that she was not a party to the matter.

The court of appeals stated that improper comments during closing arguments may taint the outcome of a trial if the comments are aimed at obtaining the jury’s sympathy. Here, the defense’s counsel repeatedly violated this standard by making improper comments about the plaintiff “mocking” the nurse while she testified, and about how many years a nurse would have to work to obtain the sum requested by the plaintiff.

The plaintiff promptly objected to the comments. However, the trial court ruled the comments did not alter the outcome because the nurse was not a party to the case. Further, the court found the verdict was supported by the weight of the evidence. However, the appeals court found the comments were improper and likely affected the jury’s verdict; therefore, a reversal was in order.

Both the trial court and the appeals court agreed the evidence was closely balanced. In fact, one of the key elements in dispute was whether the nurse used an aid in helping lower plaintiff onto the commode. Each side primarily relied on testimony; however, the plaintiff also demonstrated the nurse’s notes did not indicate that any such aid was used. Further, the fact the nurse was not a party to the matter was irrelevant. In fact, the court found the relevant test to apply in this case was to determine whether the improper comments prejudiced the jury. Specifically, the court noted, reaching any different conclusion would essentially open the gate for attorneys to make many improper comments during closing arguments, as long as they do not pertain to a party. Further, the court added, if such improper comments are directed to a non-party, it may be inferred that purpose of such comments is solely to create sympathy in the jury, which is not allowed. Thus, the court concluded a new trial was warranted.

Because the evidence appears to be so balanced in this dispute, it is difficult to predict the outcome. While the plaintiff undeniably suffered injury and had to undergo two additional surgeries, it is not easy to establish the injuries occurred due to the fall. In fact, the weakness the patient experienced is a well-known risk of the surgery he received. Additionally, the nurse and plaintiff provided flawed testimony, with several memory gaps. The question at trial will ultimately turn on witness’ credibility.

The first lesson that every nurse learns is that if an action is not documented, it did not happen. This case demonstrates that lesson. Often, electronic records are designed to prompt the nurse to document “by exception,” which assumes that orders are followed and procedures and protocols are carried out unless there is documentation otherwise. While this speeds up the documentation process, it can present a nightmare for defense counsel. In other words, if the nurse did not document that a walker was used to assist the patient to transfer to the commode, but the policy for patient transfers states a walker must be used, that would suffice for a licensing or accreditation agency, but could be arguable in front of a jury. Direct and specific documentation is the best approach in court.


  • Decided Dec. 12, 2020, in the Appellate Court of Illinois, Second District, Case No. 2-19-0684.