Illinois Medical Malpractice Blog

The Louisiana Record reported this week on a new medical malpractice lawsuit stemming from negligent care provided to a vulnerable patient at a medical facility. The incident occurred a few years ago. The plaintiff in the case was first admitted to the facility because she was suffering from a high fever and was experiencing severe gastrointestinal problems. Her condition made her very dependent on care workers, because her mobility, strength, and overall cognition were affected by her fragile condition.

The documents filed to initiate the medical malpractice lawsuit state that at one point during her stay the woman was helped to the toilet by a caregiver. However, the caregiver left the woman unattended. For quite some time the woman tried to signal for help leaving the toilet. Eventually, with no other options, the woman attempted to get off of the toilet herself. She fell while doing so and suffered significant injuries. Her neck, back, head, and right leg were all damaged in various ways in the fall.

She ultimately sought legal help and filed suit. The lawsuit claim accuses the involved medical facility of negligence for not taking proper fall precautions. The fact that certain medical patients might need help in this way and are at risk of falls is not anything new. It is common practice for these facilities to be prepared for these sorts of situations and to act accordingly to protect the safety of the patients. The medical facility should have had a coordinated, consistent, multi-disciplinary fall prevention plan. In addition staff members should have properly monitored this individual patient’s situation much more closely.

Our Chicago medical malpractice lawyers know that this case highlights a legal principle that separates different types of legal actions. Medical malpractice is alleged when negligent care is provided to medical patients. However, there is a distinction depending on the specific care that is provided. Not helping a resident with mobility problems is a different kind of negligence than that implicated when a caregiver makes a mistake that is directly related to providing the expert medical care. Medical negligence exists in the latter while the former usually only implicates ordinary negligence.

The distinction between each type of negligence is crucial in a legal case, because there are different requirements about what must be proven in each case. Most notably, when actual medical negligence is at issue there is a requirement that expert testimony be presented. The logic is that community members on the jury do not have the experience to make judgments about whether or not a doctor prudently followed existing medical standards in any given situation. Experts might help explain to the jury what those standards are and whether they believe they were followed in each individual case. Jury members are capable of gauging the reliability of experts but not the underlying expert knowledge itself.

Conversely, in ordinary negligence cases, expert testimony is usually not needed. For example, car accident cases are classic ordinary negligence cases. Jury members are capable of listening to testimony about what happened and determining who failed to act appropriately. The basic rules of the road are common knowledge unlike appropriate medical actions.

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Medical Malpractice Deaths Could Have Been Avoided if Doctors Washed Their Hands

Too Much Noise in Operating Rooms Increase Surgical Errors

The Illinois Times reported last week on a few concerns that are being raised about a sheriff’s decision to continue using the services of a local doctor even after more than $1 million in Illinois medical malpractice payouts have been made following allegations of inadequate care being provided by the physician. According to the story the doctor and his company have faced literally dozens of Illinois medical malpractice lawsuits where he was named as defendant based on substandard care that he provided in jails throughout the area.

Yet, despite these lawsuits and settlements, which should likely raise alarm bells about the services being offered, sheriffs in communities across our state still sign contracts with the doctor and the company he owns to provide medical services to inmates. The most recent Illinois medical malpractice settlement payout came late last year, when $737,500 was paid to an inmate’s family. There is no specific information listed on the Department of Professional regulation website about the case. However, the timing coincides with a lawsuit filed by the family of an inmate who died after the perforated ulcer that he suffered went untreated.

In a different care of apparently troubling medical care being provided, an inmate was found sitting in a cell with a compound fracture to his lower leg. A pool of blood had built up on the floor and the injury appeared to be gangrenous. The man had previously suffered a broken ankle and head injury following a seizure in his cell. Instead of sending the man to an orthopedic surgeon—as recommend by the emergency room physician—caregivers instead sent him back to his cell. It was there that he became delusional and took off his splint without knowing what he was doing. This led to the aggravation of the injury which ultimately required that his leg be amputated below the knee.

The company is defending itself in another Illinois case this year. That situation involves an inmate who died while having a seizure in his cell. The man had previously been denied his seizure medication for unknown reasons.

A few are questioning whether campaign contributions have factored into the decisions to keep using this company. Sheriffs are elected positions in our state. Therefore, like other officials, sheriffs and candidates often raise large sums of money in order to engage in competitive campaigns. This presents the possibility that those who have a stake in the sheriff’s decision will seek to influence the decision with campaign contributions. The medical firm in question here has made campaign contributions to many different sheriff races.

Of course, our Chicago medical malpractice lawyers are not accusing anyone involved of specifically trading funds for these medical contracts. However, it is always important for local community members to be aware of the potential conflict so as to ensure that a spotlight is shone on the issue. Sunshine is often the best policy in these cases. There will always be some additional issues involved in the medical care of jailed inmates. However, we do not live in a society where our inmates are denied basic medical care and left to languish in horrid circumstances. Instead, inmates must be allowed to serve their time without fear of making it out of the facility alive.

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Psychiatric Malpractice Claim Proceeds

Wrongful Death Lawsuit Filed Against Jail

Gastric bypass surgery has been growing in popularity in recent years as community members try to take advantage of the new, seemingly positive weight control option. Those selling the surgeries are fond of using before and after photos in an attempt to convince wavering applicants of the merit of the procedure and highlight its possible benefits to those considering it. However, as with similar procedures, each Chicago medical malpractice lawyer at our firm understands there are often significant risks faced by patients who undergo these procedures. Unfortunately, medical providers often fail to appropriately warn patients of these risks. Matters are made even worse when the surgical team makes egregious mistakes during the procedures, often leading to lifelong consequences for victims.

For example, yesterday News 4 Jax profiled the story of one man, a former police officer, whose life was permanently changed because of medical malpractice after his gastric bypass surgical procedure. The man went in for the surgery over three years ago. At first it seemed like the procedure went well. However, it wasn’t long before complications began to develop. The hospital’s responses to those problems were amazingly inept. According to a medical malpractice attorney involved in the case, the facility failed to following standard protocols to provide even basic care to the victim. Many of the complications went undiagnosed, and by the end the man suffered a range of problems from brain damage to bed sores. He is now unable to walk, feed himself, clean, bathe himself, or speak clearly.

Following the ordeal the man filed a medical malpractice lawsuit against his caregivers. His suit was actually one of five different lawsuits filed by various victims against the same facility for a series of errors caused by basic problems at the hospital. Nurses at the facility even mentioned that they knew there were staff shortages and other issues which placed the care of patients in jeopardy.

Just the week the jury returned a massive verdict against the facility including punitive damages—totaling $177 million. Obviously the award amount is eye-popping, but it was settled upon mostly via punitive damage to punish the facility for its putting profits ahead of patients. The award is also a reflection of the immense costs that this particular victim will face for the rest of this life. The defense attorney even admitted that the man’s injuries were “one of the worst that any human being could have.” He will need around the clock care to perform even the most rudimentary functions and the overall toll on his quality of life cannot be minimized.

Expectedly, the hospital will appeal the decision, and so the case will drag on a bit longer. In the end it remains unclear what the man will actually receive and when. However, at least from this point forward he has the assurance that a jury of his peers heard the evidence and agreed that the care he was provided was far below the basic standard of care that all patients deserve when visiting a medical professional.

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Medical Malpractice Deaths Could Have Been Avoided if Doctors Washed Their Hands

Too Much Noise in Operating Rooms Increase Surgical Errors

The debate continues over the ultimate effects of a transition to electronic health records. Last week the Digital Journal published another story that weighed the pros and the cons of the transition. Our Chicago medical malpractice lawyers understand the concerns that are being raised. We also appreciate that the long-term benefits of the shift cannot be forgotten. However, no matter what, patients must remain vigilant about how the records shift might apply to their care, particularly at the outset, to ensure that they do not fall victim to .

In the broadest sense it seems obvious that our medical records should shift toward electronic formats. After all, we live in an age of technological marvels, and so many aspects of our lives have shifted to computers and the internet. It seems natural that records concerning that which is most important to us—our health—should similarly take advantage of the benefits of cutting edge technology. In theory, our medical malpractice lawyers believe that quick submission of information and the ability to electronically check for potential problems (such as medicine prescriptions and allergies) can pay huge safety dividends for patients. Paper files—which still constitute the majority of medical records—have the potential to include incomplete or inaccurate information. Information can be mislabeled, misfield, be written illegibly, or lost. Potentially serious errors can result because of those problems.

Electronic records will hopefully eliminate some of those risks. However, this shift away from paper records does not come without risk. There remain challenges to the development of certain software plans that are working to compile patient information. Converting the data to electronic forms can be time consuming. It also is a delicate process requiring doctors to learn proper coding and enter those codes to correspond to certain ailments and treatment plans. Failure to enter the data properly can lead to medical malpractice when patients are harmed as a result.

Some are also concerned about the “overload” effect. Electronic health records systems can be set up to create alerts when certain triggers are met or issues are raised—thing like the expiring of a prescription. However, these alerts can lead to more problems. For example, there is a risk that when an alert is triggered doctors may act immediately with our checking in on a patients overall progress. If a prescription is filled immediately without checking it may lead to problems.

Another issue is the effect on record access from potential computer network problems. Obviously the electronic data is only as good as the access to the data over a computer network. However, those networks can go awry. There may be outages which could leave doctors without access to patient records. It takes little imagination to understand how dangerous it could be for there not to be access to these records in certain situations where time is of the essence. There are also privacy concerns, because access to the records could fall into various hands if the network access is compromised.

It goes without saying that all patients should remain abreast of these risks and to take action if they feel their care may have been compromised.

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The rights of medical malpractice victims are under assault on an essentially non-stop basis. Over the past few decades different states (and the federal government) have considered, and sometimes passed, legislation which seeks to do three things:

1. Make it tougher for victims to file a lawsuit against those who caused their injury

2. Make it harder for those victims to win those suits after they’ve been filed

3. Make it impossible for victims to receive the damage award that a jury deems reasonable even after winning the case.

Ask any Chicago medical malpractice lawyer and they will confirm that misconceptions about the legal system allow those who stand much to gain from tort “reform” (i.e. insurance companies and certain big interests) to use the skewed public opinion to advanced dangerous legislation. The misinformation machines which pump out false data about these lawsuits is difficult to stop, because it is backed by deep-pocketed interests who will stop at nothing to improving their bottom line. However, at the end of the day those of us opposing tort reform efforts know that our arguments are stronger. Tort reform laws help only a small sliver of society while hurting the vast majority of us. At the end of the day there are two battles to fight to limit the advance of those pushing these efforts:

1. Defeat the legislation before it passes

2. Explain to the court how the legislation violates fundamental constitutional principles.

Our Chicago medical malpractice attorneys are active on both fronts, as we urge the defeat of legislation which takes away rights of Illinois medical malpractice victims and support legal arguments which point out the unconstitutionality of most of these laws. Fortunately, a few years ago our Illinois Supreme Court validly recognized that a law in our state which capped damages unconstitutionally infringed on the separation of powers doctrine in our constitution. Certain decisions must be left up to the judicial branch of government and legislatures are not allowed to mettle with it without changing the constitution.

This week the Arkansas Supreme Court made similar arguments while striking down a law in its state which limited the kinds of medical experts which could testify in certain medical malpractice cases. According to the Baxter Bulletin, the state’s high court found that the requirement that expert testimony has to come from “medical care providers of the same specialty as the defendant” violated the separation of powers doctrine. Last week we discussed this particularly damage requirement in another state. On its face, of course, the measure sounds reasonable. The problem is that instead of being used reasonably, the requirement in practice was nothing more than a way for meritorious claims to be thrown out of court on a technicality. Some courts required that specialty of the expert be identical to that of the defendant doctor. In some cases, meeting that requirement was virtually impossible, essentially immunizing those doctors from accountability.

Fortunately, with rulings like this, the court rightly notes that decisions about what evidence is or is not allowed at trial is within the purview of the judiciary alone, not the legislature. There is a reason that there are split branches of government—each maintains its own sphere of power. When one branch tries to take away the power of another, it cannot stand.

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The News and Tribune reported this week on yet another medical malpractice verdict stemming from a medical provider’s failure to act quickly enough to deal with a complained of condition. Frequent blog readers (and those familiar with medical malpractice lawsuits) will recognize that this sort of conduct is often at the very heart of these cases. Each Chicago medical malpractice lawyer at our firm knows that time and again doctors, nurses, and other care providers do not act with the speed that would be reasonable under the circumstances, often with serious repercussions for the unsuspecting patients’ involved.

According to the story, this latest verdict stemmed from a woman who suffered serious injury because her doctor did not perform a vital surgery in a timely fashion. The victim, a special education teacher, was only 21 years old when she checked into a local hospital complaining of severe abdominal pain. Shortly thereafter she had a surgical consultation with a doctor to determine if surgery were necessary to fix her abdominal problems. According to a medical malpractice attorney representing the plaintiff in the case, the surgeon initially determined that surgery was absolutely necessary, and so the procedure was scheduled for the very next day. However, when the woman arrived at the hospital the next day the doctor bizarrely decided to cancel the surgery altogether. Then the doctor left town for the weekend and did not make any other arrangements to procure alternative surgical coverage.

The consequences of the delay on the patient would be severe.

The woman’s condition worsened over the next two days. It got so bad that other doctors providing care began worrying if the woman was going to even survive. Eventually two days later an alternative surgeon was called to perform an emergency surgery late that night.

It seems that the woman had what is known as ischemic bowel disease (also known as “dead bowel”). Unfortunately, by the time the surgeon actually performed the operation, virtually the woman’s entire bowel had been destroyed. She now suffers from short gut syndrome because of the removal of most of her small intestine. This is a permanent (and debilitating) disorder.

As the woman’s medical malpractice attorney noted during the case, it is unreasonable for a surgeon to cancel an operation and leave without properly monitoring a patient. Either the doctor should have performed the surgery or he should have said no to the surgery while keeping an eye on the situation to ensure that no problems came up. This is particularly true considering that the situation was such that immediate surgery seemed necessary at first anyway.

Following the four day trial the jury returned a verdict in favor of the plaintiff. They found that the overall past and future losses suffered by the woman amounted to $1.4 million. However, some of that award will be cut because of arbitrary damage caps in the state which randomly limit the amount of money that wrongdoers have to pay regardless of the consequences of their negligent conduct.

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Our Chicago medical malpractice lawyers know that medical errors come in many forms. The civil justice system does not necessarily list specific medical actions which automatically leads to liability. Instead the law generally prohibits negligent conduct generally—which can include a wide range of actions. However, there are certainly some trends that are often lead to the most prolonged costly medical malpractice cases. For example, as an article in Guam PDN News mentioned late this week, at the root of much medical negligence are communication breakdowns by the doctors.

The story explains that while some insurance companies advise not talking to patients when an error has been committed in order to avoid a medical malpractice lawsuit, this recommendation is incredibly misguided. Of course, it is no surprise that insurers would want to keep secrecy involved in the process. Insurers are almost always interested in the bottom line—making money for their shareholders in as many different ways as possible. Of course in public the insurance industry usually tries to present the face of an industry that is only concerned about helping those in need and providing as much support as possible in times of tragedy. Yet, when push comes to shove the industry is usually willing to do whatever possible to avoid paying out claims. This is a large part of the reason why tort reforms efforts are pushed so hard by insurance industry proponents. Tort reform efforts are essentially system-wide attempts for insurance companies to pay less money when those they insure make mistakes that hurt others.

Of course, as the article notes, there are obvious ethical issues behind hiding instances of errors. Instead, the logical approach would always be to admit the error, issue an apology, and then try to compensate the victim for the injury. Any medical malpractice lawyer knows that the legal process can be made much more efficient if those responsible for errors engaged in open and honest communication with those who suffer injury as a result of misconduct.

According to a University of Michigan Health System communication between doctors and patients leads to decreases in prolonged medical malpractice lawsuits. The results of the survey actually led many to support national “apology laws” which would seek to require use of apologies and accountability as a way to avoid prolonged litigation while still providing necessary redress for families. In 2005 there was a national push to enact an apology law known as “MediC Act.” Though it never passed, it spurred action in over 36 states.

Honestly admitting mistakes is important for accountability and improvement purposes. When doctors admit mistakes there is a much greater chance that the error will spur changes which prevent future problems. Most errors are part of systematic problems at the facility. For example, a medication error could be rooted in a wide range of problems from ordering, transcribing, dispensing, delivering, and administering the drug. At the end of the day, admitting a mistake is not only the right thing to do ethically, but it is the smart thing to do to improve patient care.

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Nearly 100,000 Die Every Year From Hospital Acquired Infections

A Hospital’s First Priority: Do No Harm

A failure to diagnose or a delayed diagnosis is one of the most common forms of Illinois medical malpractice. This sort of mistake is often the difference between life and death, because timely treatment is crucial with so many medical ailments. In general each Chicago medical malpractice lawyer at our firm knows that these sorts of errors come in two varieties. Most often a patient will visit a doctor complaining of a certain problem, the doctor will then either fail to order the appropriate tests and/or make a quick decision about the ailment and then send the patient on their way. When the patient does not get better they return and it is only later that the true source of the ailment is uncovered. In other cases, a doctor may correctly diagnose a patient with some condition. However, in taking the tests before that diagnosis an even bigger problem should have been evident to the medical professional but was missed.

According to an article in the Charleston Daily Mail, a failure to diagnose was at the heart of a new medical malpractice trial that is set to get underway this week. The suit was filed against a hospital and several physicians after the death of a 67-year old man. The victim suffered from multiple sclerosis and went to the hospital after suffering a urinary tract infection. While in the hospital the family became increasingly concerned because they noticed that his condition was deteriorating. The family repeatedly asked for doctors to examine him to figure out what was going wrong. However, the examination never took place. It was only when the man’ condition became gravely worse that a nurse phoned a doctor. The man was moved to the intensive care unit, and he died two hours after that call while he was being prepped for emergency surgery. It was only later that it was confirmed that that man had a bowel perforation that went undetected by medical professionals until it was too late.

The medical malpractice attorney who is representing the family explained that throughout the day at the hospital the man began to have an increasingly distended abdomen. The distention eventually made it hard for the man to breathe. Communication problem seem to be at the heart of the mater as nurse failed to properly inform the doctor of the severity of the man’s condition because “they didn’t want to inconvenience” the doctor. Of course, it is always unacceptable for a change in condition to not be properly accounted for. It is particularly disturbing when a patient is already at a hospital, his condition is clearly getting worse, and proper steps are not taken in a timely fashion to actually pinpoint what the cause might be. As this case demonstrates, even a few hours delay is often the difference. These sorts of missteps cannot be tolerated.

Jurors have just been chosen in the case, and attorneys have already made their opening statements. The entire trial is set to last at least two weeks. Many other personal injury trials do not last that long. However, because of the dense material and need for expert testimony, medical malpractice trials are often quite lengthy.

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Birth Injury Lawsuit Leads to $3 Million Medical Malpractice Verdict

The Sun-Sentinel reported last week on the end of a medical malpractice trial involving a vaccination error that left a girl (now a teen) without use of any of her limbs. The case highlights the unique circumstances that, in the end, can be traced back to inadequate care provided by hospital caregivers. It also showcases the sad fact that the losses that result from medical errors can be of the most serious and debilitating variety.

According to the medical malpractice attorney involved in the case, as a newborn the girl suffered a range of health problems. As a result she needed to have her spleen (and various other organs removed). The spleen is an organ that plays a role in filtering dangerous bacteria and viruses from the body. Therefore, the girl required special medication following her loss of the organ to ensure that she was properly prepared to defend against infections.

Shortly afterwards, the girl’s mother brought her to the pediatric unit of a local hospital to have a vaccination. The vaccination was supposed to help those who had no spleen better fight infections. Unfortunately, the particular vaccination that the girl received had expired five months earlier—it was no good. The family’s medical malpractice lawyer explained that it was a classic medication error, with the unsuspecting family having no idea that the false sense of security caused by the inadequate vaccination would come to have severe consequences for the young girl.

Roughly eight months later the child became severely ill. She was rushed to a local hospital where professionals discovered that she had a bacterial infection coursing through her body, causing blood clots to form in her arms and legs. By the time the doctors saw the child, gangrene had set in. To save her life they were required to amputate her arms and legs above the joints. In discussing the matter, the girl’s mother explained, “She developed the very disease that they were supposed to inoculate her against.”

Shortly after the tragedy the family filed a medical malpractice lawsuit seeking to hold the facility responsible for their misconduct which led to the harm. In their defense, the hospital claimed that even had the vaccine that the girl received not been expired she still would have contracted the deadly bacteria. Additionally, the defense team argued that the girl’s mother failed to give her sufficient medication at home to stave off the medication.

The jury ultimately awarded the family $12.6 million following a trial on the merits of the case. However, they also found that the mother’s failure to provide adequate medication played a role in the problem. Therefore the jury award will be reduced by 40%, meaning that the family will likely record roughly $8 million. As sometimes happens in these cases, the hospital plans to appeal the decision. That appeal will delay that ultimate recovery for the family even longer. The medical malpractice lawsuit was actually filed ten years ago, and it is only now that it has been taken to trial—various stall tactics, complications, and other legal maneuvers were involved in keeping the case from the jury for so long.

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Accountability is a pretty basic concept. Measuring the quality of performance is any field is the only way to truly understand what works, what does not, and what needs to be improved. This applies in all fields, from the law and marketing to any types of sales and medicine. Unfortunately, each Chicago medical malpractice lawyer at our firm has come to appreciate that in the hospital context there are very often huge lapses in measurement and accountability of medical errors made by doctors and hospitals.

This reality was verified again in a recent study released by the Inspector General for the Department of Health and Human Services. Lawyers.com published a piece on the report this week and interviewed our Chicago medical malpractice attorney John Perconti for his perspective on the report. According to the study, doctors only report a shocking 14 percent of errors made when caring for Medicare patients. Obviously this low reporting rate raises serious concerns about the overall level of care provided by these professionals. It is a testament to the fact that much work can still be done to improve the care received.

No one likes to admit when mistakes are made, and it is not surprisingly that doctors are no exception. Medical professionals are not superhuman and they have personal failings just like the rest of us. However, accountability and proper reporting of mistakes remains supremely important in the medical context because lives are on the line when doctors make mistakes. Medical malpractice is troubling whenever it occurs, but is it particularly egregious when it occurs repeatedly because lessons are not learned by practitioners. Lessons can never be learned from previous mistakes when no one is made aware that an error occurred in the first place.

As our Chicago medical malpractice lawyer John Perconti explained, doctors and hospitals have very good reasons to keep their mistakes hidden—but none of those reasons have to do with improving patient safety. Attorney Perconti noted that “Reporting may have negative consequences to creditialing as well as exposure to third party claims. For these reasons, I am not surprised these errors are being under reported.” In other words, doctors don’t want to pay families for the consequences of these errors and they do not want professional repercussions for their mistakes. As a result, they often try to sweep errors under the rug.

As Attorney Perconti knows, failing to reports errors properly is not only a failure to abide by Medicare rules, it also is downright dangerous. The reporting of medical errors leads to corrective action being taken to prevent future problems. These changes are the hallmark of improving hospital safety. As the total number of medical errors continues to remain steady, the need for improvement is ever present.

Another problem, as Perconti noted is that “Doctors and hospitals are often selected based upon their reputation in the community. Under reporting of medical errors gives the consumer a false sense of security...Any reasonable consumer would not select a doctor or hospital with a significant number of medical errors.”

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