Improper Remarks During Closing Argument Reverse Defense Verdict: Hinshaw's Annual Guide to Key Illinois Medical Malpractice Litigation: 2020 Edition

Issue

Can comments intended to inflame the passions of the jury, even if directed at a non-party, result in error?

Michael Konewko v. Advocate Health and Hospitals Corporation d/b/a Advocate Good Samaritan Hospital 2020 IL App (2d) 190684

Michael Konewko, then age 57, underwent a laminectomy and removal of a synovial cyst at Advocate in October 2010. Following surgery he experienced increased leg weakness. While still an inpatient, he was assisted by Nurse Begler to the commode which involved an uncontrolled descent, after which his leg weakness increased to the point of feeling "dead." Konewko later underwent two additional surgeries, suffered a DVT and infection, underwent rehabilitation, but eventually regained 4+ out of 5 strength in the leg. Plaintiff filed suit against Advocate on the theory that its agent, Nurse Begler, was negligent in assisting with the transfer to the commode. Advocate defended the case in part on the theory that the surgery, and not the transfer, caused the patient's symptoms of leg weakness. Pre-trial rulings prohibited any reference to the relative wealth or poverty of any party, or to ask the jury to put itself in the position of any party.

During closing argument, plaintiff's counsel explained to the jury "[Y]our verdict must not be based on speculation, prejudice, or sympathy. The concept of empathy, on the other hand, is a little different, and the concept of empathy and understanding what somebody has gone through can certainly play a role in this case." Counsel for plaintiff also accused Nurse Begler of lying about plaintiff's use of a walker since she had not documented it and stated "Careful and meticulous, question mark. Doubt it, exclamation point." Plaintiff asked the jury for $762,591, for medical bills, pain and suffering, and loss of a normal life.

During the hospital's closing argument, defense counsel made the following statements:

• "Nurse Begler's reputation as a nurse, the dedication that she does in and out, going back decades . . . [w]e take it seriously. [Begler] takes its seriously . . . That's why we're here."
• "So you were asked to award . . . almost $800,000. And the first thing that popped into my mind was how many shifts, how many years, a nurse and a physical therapist in their life would have to work to earn $800,000[Plaintiff's Counsel Objected]"
• "Put yourself in Lisa Begler's—[Plaintiff's Counsel Objected]"
• "I would submit to you that exploiting people's lack of memory and...