Attorney escapes malpractice liability: court, rather than attorney error in underlying PI case is cause of client’s injury

by Christopher Graham and Joseph Kelly


You’re injured in a vehicle accident. The other vehicle is an Illinois Department of Transportation or “IDOT” truck. You hire an attorney a day after the accident. You claim neck, back, hip and buttocks pain. You see a chiropractor for pain. That’s the same day you hire attorney. You see a neurologist and pain management specialist. Your neck pain resolves. But other pain continues.

About five months after the accident you fall off a chair at work. You land on your arm. But your hips hit the floor. You claim the character of pain didn’t change before and after the fall.

You have two MRI’s. Both show the same damage, according to your chiropractor. One is before the chair fall. The other is after the fall. After the fall, you see an orthopedic surgeon. He acknowledges you complain of back, leg, and hip pain. About three months later, after pain becomes more severe, he does fusion surgery.

Your medical bills total $58,000, but most are for services after the chair fall.

Your attorney files a claim for you against IDOT with the Illinois Court of Claims. There’s a bench trial. You testify. Your chiropractor’s deposition comes in evidence. He testifies about the two MRI’s. Your pain management doctor’s deposition comes in evidence too. So do all your medical bills. But your orthopedic surgeon’s deposition is excluded. The court decides it wasn’t properly designated as an evidence deposition.

Two years later the court finds that as a result of IDOT negligence, you sustained damages before the chair fall in the form of medical expenses, lost wages and property damage. So it awards you $17,000. But it concludes medical costs incurred on and after the fall weren’t from the vehicle accident.

Your attorney petitions for rehearing and a new trial on damages. He argues the court erroneously assumed you injured or aggravated your back problems from the chair fall and then filed a workers’ compensation claim for the fall. Your attorney shows the only workers’ compensation claim was filed months before the chair fall, for injuries from the vehicle accident. Your attorney raises other points of error including, among other things, that there was no evidence you injured your back from the chair fall. But it was all for naught. And unfortunately for you, court of claims’ decisions generally aren’t subject to judicial review. And this one wasn’t one of the exceptions.

So what do you do? Well, you find another lawyer. And with that lawyer at the helm, you sue your personal injury lawyer for malpractice. It’s all his fault you say. He screwed up because your surgeon’s deposition was excluded. It wasn’t properly designated as an evidence deposition, said the court of claims. You would have gotten all your damages if only it came into evidence like it should have. There’s a bench trial. Experts testify on both sides.

Who wins? Attorney, says the trial court. Attorney breached no legal duty. Excluding your surgeon’s deposition wasn’t the proximate cause of your loss. You lost because the court of claims erroneously concluded the chair fall was a superseding cause. You appeal.

Who wins? Attorney wins again, says the appeals court in Green v. Papa, et al, Case No. 5-13-0029 (5th Dist. Feb. 5, 2014). The trial court got it right. As the court explained:

We cannot say that, more likely than not, [surgeon’s] testimony linking [client’s] surgery to the April 1998 car accident would have changed the decision of the court of claims. Nor can we say that, more likely than not, [his] testimony that it was “certainly possible” that the fall from the chair may have been injurious because of a predisposition to injury as a result of the automobile accident would have changed the outcome for [client] had it been admitted into evidence … It is clear from the judgment order that the court of claims was not cutting off [client’s] damages subsequent to [the chair fall date], because [surgeon’s] causation testimony was excluded, but rather because it erroneously believed that IDOT had somehow proved the fall from the chair was a superceding (sic) event … Because we find that the decision of the court of claims to exclude [client’s] medical damages beyond [chair fall date], was based on erroneous conclusions of facts and law on the part of the court of claims, over which we have no power, and not on the exclusion of [surgeon’s] testimony, we cannot say that the circuit court’s finding that [client] failed to prove proximate cause on her legal malpractice claim against [attorney] was against the manifest weight of the evidence.

Lesson for lawyers, especially in Illinois: Illinois has a peculiar rule distinguishing discovery from evidence depositions. There was an issue about how attorney noticed the surgeon’s deposition. And the transcript face page designated the deposition as a discovery rather than evidence deposition. Although there’s a rule for correcting transcript errors. nothing was done to change the transcript designation to evidence deposition. Attorney claimed he had an agreement with prior IDOT counsel to treat treating physicians’ depositions as evidence depositions. But new IDOT counsel disagreed. And there was nothing in writing. Attorney also argued it would make no sense for him to depose his client’s treating physician for discovery; he could have access to the physician any time. Attorney also said he suggested a trial continuance to client to do an evidence deposition, but client wanted to proceed; nothing was in writing and client said she didn’t remember such a conversation. All that mattered to the court of claims was the transcript designation as being for discovery.

Attorney ultimately won. But he still was sued. His insurer undoubtedly had significant legal fees for a trial and appeal. And maybe attorney paid a deductible. He sure had to spend time dealing with a suit, which could have been spent on work for fee-paying clients. And who wants to be sued. It all could have been avoided by making sure the deposition notice and transcript were designated as an evidence deposition.

Tags: Illinois, legal malpractice, proximate cause, evidence deposition

Category: Lawyers Malpractice Digest Comment »

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