Ophthalmology Resident With Limited Experience Is Admitted As An Expert Witness

Court: Appellate Court of Illinois, First District, Third DivisionJurisdiction: FederalCase Name: People v. Mislich (In re Mislich)Citation: 2016 IL App (1st) 132662-U

An expert witness, by definition, is someone with a specialized skill set who assists the trier of fact make sense of the factual evidence of a case. Usually, an expert witness is an industry professional with years of experience under their belt. In this case, however, a treating ophthalmologist was found to be a reliable expert witness insofar as her testimony fell within the parameters of “a resident and treating physician whose actions were reviewed by an attending physician.”

Facts

In 1982, the 17-year-old respondent, Mislich, was sentenced to 36 years in prison after he was found guilty of sexually assaulting two women. In 1998, the State moved a petition to involuntarily commit the respondent to the Illinois Department of Human Services, contending that Mislich was a “sexually violent person”.

In 2006, Mislich filed a petition for conditional release. In the said petition, Mislich asserted that he had “successfully finished 4 phases of treatment” and petitioned the court to observe that he had “made satisfactory progress” to justify a conditional release. After reviewing the petition, the court granted Mislich the conditional release. As per the court’s order, the department drafted a conditional release plan which listed 38 release conditions. Mislich accepted all of the conditions, and the plan was accepted by the circuit court. Mislich was then freed from custody in 2007.

The petitioner afterward attempted to revoke Mislich’s conditional release numerous times over the years based on his supposed breach of several conditions of his release plan.

Mislich was recommitted for 60 days after neglecting to cooperate in sex offender treatment as per the terms of his release plan. After concluding that brief recommitment time, however, Mislich was re-released. He was not constrained to re-confinement until the Petitioner opened revocation proceedings afresh in 2013 by moving a petition to revoke, and afterward the amendment thereto, which leads to this appeal.

The State’s petition was moved after Mislich contracted difficulties with his eyes. Mislich visited the emergency room with an alkali injury to one of his eyes after attempting to unclog a sink using liquid plumber. He eventually went blind after complications related to his injury.

The Expert

The circuit court presided over a hearing on the state’s conditional release revocation petition. During the hearing, the expert witness, an ophthalmology resident at Chicago Rush University Hospital Eye Center was qualified, over Mislich’s objection, as “a medical expert for determination of illustrating the treatment of Mislich”.

The expert had treated Mislich while he was in the emergency room. Her treatment included irrigating the patient’s eye, conducting an examination of the patient’s eye, placing bandages, monitoring his progress, communicating the patient’s status to attending physicians, and admitting steroid treatment, among other interactions.

The respondent argued that the circuit court mistakenly allowed the resident to provide testimony as an ophthalmology expert. The respondent contended that the ophthalmologist was not eligible to be an expert and that the circuit court had arbitrarily allowed her to testify as an expert.

Held

The court held that the expert’s status as a resident did not prevent her from testifying about her treatment of Mislich. The court indicated that the expert was qualified to testify within the parameters of “a resident and treating physician whose actions were reviewed by an attending physician.” Therefore, it was determined that the circuit court’s opinions that the expert’s qualifications and experience were uncommon to laypersons and that her testimony would help it in reaching its conclusion as to whether to revoke Mislich’s conditional release were not considered an abuse of discretion.