Legal Memorandum: Expert Testimony in a Post-injury Infection

Issue: Under Illinois law, is expert testimony required to establish a cause of action for a post-injury infection?

Expert testimony about the type of bacteria that caused the infection and the probability that the infection developed from the injury suffered is key.  See Harmon v. Patel, 247 Ill. App. 3d 32, 617 N.E.2d 183 (1993) (in medical malpractice case against a physician for failing to diagnose and treat the plaintiff’s staph and strep infection that developed in her leg after the plaintiff was in a single-car accident and suffered a cut to her knee, evidence about how the cut became severely infected within two days, ultimately resulting in necrotizing fascitis, surgery, permanent scarring, and functional impairment to leg, along with expert testimony that defendant’s failure to properly diagnose and treat the staph and strep infections proximately caused the infections to become in necrotizing fascitis, was sufficient for the jury to find causation and liability).

Two cases from other jurisdictions also might be helpful.  In Oliver-Gely v. HI Dev. PR Corp., 472 F. Supp. 2d 140 (D.P.R. 2007), the federal district court denied the defendant hotel’s motion to exclude expert testimony that the decedent hotel guest died from a bacterial infection he contracted after falling in the hotel bathroom and tearing his skin.  The expert’s testimony to the effect that the medical record showed the guest described the laceration as a “skin tear,” that a laceration or lesion could become infected by bacteria, and that the laceration or lesion had become infected with a particular type of bacteria was […]