Illinois Medical Malpractice Blog

When trying to sell tort reform proposals to legislators and the public at large, those advocating for big interests frequently try to present the image of an Illinois medical malpractice crisis. This fabricated crisis apparently involves a wave of frivolous medical malpractice lawsuits being filed with doctors forced to defend against unfair claims. But it doesn’t end there. Arguments are also made that juries frequently award hug verdicts to plaintiffs all the time, even when they are not deserving.

All of this—claim tort reform proponents—necessitates quick legislative action to take away rights from juries and limit the ability of patients to filed suit against their medical providers.

Each Illinois medical malpractice lawyer at our firm knows those claims are incredibly misleading.

A recent article at MedPage sets the record straight.

The story shows how that the civil justice system slants in favor of defendants, it remains incredibly difficult for plaintiffs to succeed at trial. A large reason for this is the myriad of options available to defendants to both win at trial and get a case thrown out before trial.

The story points to some statistics from a recent issues of the Archives of Internal Medicine. The data was culled from an analysis of 10,000 closed medical malpractice cases. The data suggests that only 4.5% of medical malpractice cases ever go to trial. Of that group, the jury returned a verdict in favor of the defendant-doctor nearly 80% of the time. How could that be? Part of the reason is that the burden of proof is on the plaintiff. That means that if a juror is evenly split between finding that the medical professional acted negligently or not, the law requires that they find no liability. This is a significant hurdle that all plaintiff must clear to be successful at trial. That means that the cases where a jury does return a verdict for the plaintiff are actually the exception more than the rule.

So what about the over 95% of cases that do not go to trial? Well over half of them are dismissed by the court before reaching trial. This is a testament to the various procedural rules that are thrown in front of plaintiffs even before they are allowed to go to trial. Contrary to the assumption of much of the public—filing a lawsuit does not automatically mean that a plaintiff has a right to make it to trial. They first must prove that there is sufficient evidence available such that a jury could reasonably find liability. Finding that evidence is often a challenge. That is not because the medical professional acted reasonably but because collecting the right paperwork, testimony, and other necessary information can easily be fought, particularly when defendants are not cooperative in providing information about the care.

Our Illinois medical malpractice attorneys appreciate then that these stats mean that this means that only about a fourth of all filed cases even end in a settlement. In other words, there are an endless array of hurdles placed in front of plaintiff before receiving redress and accountability. The last thing needed are more arbitrary tort reform rules that add more roadblocks for plaintiffs which drag out the justice process in each individual case longer.

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Each Illinois medical malpractice lawyer at our firm understands the continued need for improvements in medical safety. The most common refrain to hammer home this point is the reminder that estimates suggest that the total number of patients killed because of preventable medical errors is equivalent to two jumbo jets filled with passengers crashing everyday and killing everyone on board. If that actually occurred, you can image that the country would be up in arms about the need for increased safety protocols for the airline industry. Much less attention is focused on improving medical safety standards. Unfortunately, the Illinois medical malpractice attorneys at our firm know that instead most attention is focused on actually limited the rights of the patients hurt by the errors—ultimately providing even less accountability

Many advocates are working to change this situation and share information about the critical importance of improving safety standards at all medical institutions. For example, a recent AMED News story explained how a range of celebrity activists are trying to focus public attention on these issues. Many of the public figures were spurred in their efforts by the fact that they have been personally affected medical mistakes.

For example, film actor Dennis Quaid had the horrific experience of nearly losing his children as a result of a medication error. In 2007 the star’s wife gave birth to twins. However, when the babies were only 12 days old they developed an infection. The family rushed them to the emergency room. While there the children were mistakenly given 1,000 times the needed dose of the drug heparin. The babies were nearly killed. Investigations into the incident revealed that the mistake was rooted in the fact that packaging on the drug for 10,000 unit-strength and 10-unit strength are very similar. In addition, the hospital in question was found to fail to separate properly the two types of doses, creating a situation where the error was far more likely to occur.

This sort of infant drug overdose is unfortunately not uncommon. For example, only slightly more than a year before the Quaid children were almost killed the same mistakes occurred in Indiana. In that case six infants were given the 10,000-unit dose of heparin. Three of those babies died as a result.

All community members—not just medical malpractice lawyers—should work hard to eliminate these preventable tragedies.

One important way to help is to create a patient safety board based on the one in the aviation industry. The investigations following airline accidents are intense, and the reports of the accident “often lead to direct changes in federal regulations, airline policies and in the cockpit.” Medical errors receive far less review, meaning that they do not spur changes and similar mistakes are made again and again.

Famous pilot Capt. Chesley B. “Sully” Sullenberger—the pilot who landed a disabled plan on the Hudson River in 2009—has come out in support of the benefits of the aviation safety board. He noted that safety improvements are vital to improving safety long-term in any field, medicine should be no exception.

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Fairness is the bedrock of the civil justice system. Our Chicago medical malpractice lawyers know that in law school all future attorneys—including those who end up working for plaintiffs as well as defendants—are drilled in what this fairness principle actually means. It is not merely lip service to the idea that both sides are able to make arguments. The basic idea of fairness is all-encompassing and guides how attorneys act inside and outside the courtroom.

Of course attorneys are zealous advocates for their clients. But there are limits to that advocacy. An attorney must not take that zealous advocacy to the point of trying to trick the other party. That is why, for example, attorneys for one party in a suit do not contact or discuss material with the other party without that party’s attorney present. The purpose of the civil justice system is to reach truth and provide fair redress. That mission is not accomplished when coercive or underhanded schemes are used.

All Illinois medical malpractice attorneys must keep this in mind to ensure our profession remains an ethical one. The public consciousness has unfortunately shifted in some ways, and lawyers are often viewed as dishonest and manipulative. While we cannot defend all attorneys, our team maintains a steadfast commitment to fairness and honesty at all times. We do not attempt to take advantage of any party—even defendants. The goal is helping those hurt by misconduct receive the support they need to fully recover from all of their losses while holding negligent parties accountable.

We are committed to this fairness. That is why it is particularly shocking to see certain states attempt to enact legislation that runs completely counter to that spirit of openness and fairness. For example, the “early offer” legislative proposal currently being considered in New Hampshire would do nothing more than basically try to “trick” patients into signing away fundamental legal rights. No one who cares about an impartial justice system should support these incredibly misguided efforts.

Recently, the Executive Director of the Center for Justice and Democracy, Joanne Doroshow, testified in front of a state legislative committee on the measure. She attempted to clarify the harmful effects of these bills.

She explained how this particular “early offer” legislation seek to get patients to sign into a special “system”—usually before they have any chance to talk with a legal professional or even know the full extent of their own injuries. Once in the system, the patient has to abide by very different rules when trying to get compensation for the harm caused as a result of medical malpractice. Unsurprisingly, those alternative rules are slanted severely against the patient—essentially allowing the hospital to get away with providing far less compensation to the patient than otherwise.

Our medical malpractice lawyers stand steadfastly against all legislative proposals that seek to trick patients out of their basic legal rights. We are confident that most residents, when fully apprised of the effects of this sort of legislation, would also reject these dangerous changes. It remains important to keep abreast of these potential tort reform efforts, because similar proposals might be introduced in our state at any time.

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One of the most common arguments used by those attacking medical malpractice lawsuits and seeking to promote tort reform is the argument that doctors will leave a state if the changes are not made. Similarly, proponents of these laws also suggest that when these laws are passed more doctors will flock to the states that limit the rights of patients to recover losses after they’ve been hurt by medical negligence.

Each Illinois medical malpractice lawyer at our firm knows that the poster child state for this argument is usually Texas. The Governor of Texas, Rick Perry, pointed to his state as an example of this. It was often claimed that physicians came to the state in droves specifically because certain laws were passed to take away legal rights.

Those claims sound nice as a debate talking point, but are they accurate?

Several law professors—including several from Illinois—recently investigated the situation to get real answers to the questions. A summary of the study published this April can be found here at the Center for Justice and Democracy website. The work is incredibly well-thought out, carefully covering all possible avenues to get at the most well-documented answers yet to whether the claims about tort reform and physician supply are true.

The overall takeaway: Tort reform does not increase the supply of physicians in a state.

In Texas, the state passed a range of “tort reform” measures that severely limited the rights of those hurt by medical malpractice in the state. When compared to similar pieces of legislation in other states, the laws were particularly sweeping. The study notes that a key argument in passage of the bill was that the state “was hemorrhaging physicians and that restrictions on lawsuits would stop the bleeding.” Expectedly, following the passage of the bill proponents of the law claimed that it ‘miraculously’ worked just as intended.

Our Chicago medical malpractice lawyers were interested to read that the study revealed that there were two big problems with that argument. First, the state was not actually losing physicians prior to the passage of the bill. In fact, the state was gaining doctors steadily from 1990 until the law’s passage in 2003. In other words, there was never a real problem in this regard to solve to begin with.

But did the law at least lead to an increase in the number of physicians in the state? This is a bit trickier to pinpoint, because, after all, the state was always adding doctors. Parsing out the effect of the law requires close analysis of the physician levels as well as consideration of all other possible variable which may have affected any change besides the tort reform measures.

Amazingly the study found that, completely contrary to arguments made by reformers, “the rate of increase in Texas DPC physicians per capita was lower after reform.” It is crucial that this reality be shared with more individuals who make arguments about tort reform laws. This is an uphill battle though, because proponents continue to make false and misleading claims.

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The Mercury published a helpful article last week on the large medical malpractice case that made headlines after a jury returned a large verdict after determining that negligence led to a permanent, debilitating brain injury during birth.

The case was filed by a woman who went to the hospital a few weeks before her due date. She was showing signs of placental abruption—when the placenta leaves the uterine wall—which often necessitates an emergency delivery of the child to avoid any long-term harm. Before making any decision, the woman’s doctor performed an ultrasound. Yet, for a variety of reasons—including the fact that the equipment may have been defective—the doctor did not find a fetal heartbeat. As a result he told the woman that he child had died.

But the child was not dead; the ultrasound was just not performed correctly.

When an ultrasound technician actually came in later to review the results, he caught the mistake. It was only then, an hour and twenty minutes later, that the baby was quickly taken from the womb. However, the delay had serious consequences for the child—he suffered a permanent brain injury. A medical malpractice lawsuit was eventually filed. The case ended with the jury finding for the plaintiff and awarding them $78.5 million.

Our Illinois medical malpractice lawyers understand the importance of the family in this case, like all cases, having the right to have a jury of their peers decide the total damages of a case after hearing all of the evidence. Unfortunately, we also know that cases like this are frequently taken out of context, with the verdict amount plucked out, and used to “prove” how certain verdicts are wrong. It is vital that we fight back against those distortions.

For one thing, verdicts of this size are exceedingly rare. As we have mentioned many times before, there are thousands and thousands of cases all the time with very few ending in settlements are verdicts anywhere near this amount. Using an infintismal fraction of decisions as “proof” of the need for legal changes is not apt.

While one might disagree with certain verdicts, the entire point of the law is to provide the best avenue we have available to reach decisions on issues that are inherently filled with disagreement. If everyone already agreed on who was at fault and what the damages were, then there would be no need for a justice system at all. We’d just do what everyone already knew. But that is not the world we live in. Instead, the justice system specifically exists to adjudicate those disputes. In other words, we should be surprised if people weren’t in disagreement with particular outcomes. That disagreement is in no way a reason to change the system itself.

On top of that, changing rules for everyone in the system simply because of a few outlier verdicts is never a good idea. Our Chicago medical malpractice lawyers know that this is nothing more than an attempt by those to have much to gain to slide through legal changes that hurt permanently take away basic rights.

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Most have likely heard talk about the damaging consequences of “defensive medicine.” The idea is that because of fear of being sued, doctors are ordering tests and other procedures unnecessarily. As a result, the costs for healthcare are far higher than they should be. Those making this claim argue that the solution is to limit the rights of individuals to file medical malpractice lawsuits and receive certain compensation. Of course, each individual victim of medical malpractice has nothing to do whatsoever with decision made by doctors across the country, but these proponents argue that there is no other alternative than to curtail their access to the civil justice system if we want to lower healthcare costs.

While all of this makes a clear compelling argument for insurance companies and big hospital interests seeking to enact tort reform laws, it comes with one problem: it is not exactly accurate. Each Chicago medical malpractice lawyer at our firm knows that no matter what one decides about the veracity of claims about the prevalence of defensive medicine, the solution to the problem does not center on taking away basic legal rights from community members.

An article for the Americans for Insurance Reform recently discussed various studies that have examines that issue. They all essentially show one thing pretty clearly: reducing medical malpractice lawsuits will do little to cut healthcare costs. Our Illinois medical malpractice attorneys hope that more people will actually take the time to look into the research behind the claims before making choices about which policies to support or not to support. Please find a brief summary of a few major studies below:

Annenberg Center study: This 2005 effort challenged the overall claims by so many insurance companies that tort reform would save healthcare costs in a project entitled “Insurance Industry Ad Makes Fishy Claim About Lawyers.” The underlying point was that the claims of savings are dramatically overblown when actually looking at likely expenditures and costs.

General Accountability Office: The GAO conducted a research project to try to specifically figure out how widespread the problem of defensive medicine was. It involved working with physicians to get an idea of the actual work that they do because of fear of malpractice. Essentially, the effort found that there was no conclusive evidence that defensive medicine was a serious problem and, even then, no evidence suggested that it was connected to malpractice lawsuits. The final recommendation was that managed care options were necessary because, no matter the cause, doctors should not be incentivized financially to provide care that is not necessary.

Congressional Budget Office: The CBO effort from a few years ago looked very closely at all the possible effects of limits on medical malpractice lawsuits and healthcare costs. They found, unsurprisingly, that there was little connection. Even accounting for all malpractice claims, it could account, at best, for 2% of healthcare costs. Enacting tort reform laws, would change only a fraction of that already small 2%. In other words, limiting patient’s access to justice system would have so little effect on reducing costs as to be negligible.

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One might suspect that a Chicago medical malpractice lawyer would spend most of their education time learning the ins and out of the civil justice system while focus specifically on understanding the more common forms of medical malpractice—delving into the medical side of the issues. Of course understanding the procedural aspects of our legal system and close familiarity with certain medical issues is essential in the field. However, a third factor exists in virtually all Illinois medical malpractice cases—and most civil law cases generally—the complexities of insurance.

The truth is that insurance is at the heart of these issues, because the payment or non-payment of certain claims are often made by those at insurance companies. These companies are intimately involved in these Illinois medical malpractice legal proceedings from the very beginning. Far from being an entity that stands to the side and then provides payment per terms of its agreement after the fact, these entities delve into the details of the case, going well beyond their assumed role of general safety-net for those in certain situations.

Considering the role played by insurance companies in these affairs, our Illinois medical malpractice attorneys were interested to read a new article at The Atlantic. The story discussed the history of insurance generally, pointing out how today’s modern-day counterparts may be able to take a lesson or two from older traditions.

One company, Liberty Mutual, was used as an example. The company’s origins can be traced back over one hundred years—when factory workers were in desperate need of protection in case they were struck with the not-unlikely tragedy of a work injury. At that time, only about one in fifteen injured workers receive fair compensation from their employer. That is why, via hard-fought political wins, the organized labor movement was able to overhaul to worker’s compensation system state-by-state to provide support for those harms faced by ordinary workers. As part of that effort the Massachusetts Employers Insurance Association was formed—today that company is Liberty Mutual.

In other words, the company began as an entity to help ordinary workers. Has the primary focus on helping those in need remained over the centuries? Not quite.

The article explains that now, instead of being a mutual effort of ordinary workers helping one another, the company is beholden to a small group of executives to make decisions—not surprisingly—in their own best interests. This is almost undeniable. After all, how on earth is it possible to justify the fact that its current CEO received almost $200 million in pay over the last four years alone? The company clearly has different goals than those upon which it was founded.

It is about time companies took a harder look at the past and the underlying spirit of insurance.

The modern version of insurance is rooted in England in the early 18th century. It was then that Daniel Defoe endorsed the idea of the modern day insurance, calling it “a Number of People entring into a Mutual Compact to Help one another, in case any Disaster of Distress fall upon them.”

Insurance was supposed to be able helping those involved in times of need—not trying to avoid payouts as much as possible, making policymakers jump through hoops, and striving to increased profits for the executives at the top.

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Our Chicago medical malpractice attorneys have often shared information on one particular invidious form of medical malpractice—the failure to diagnose cancer in a timely fashion. As we’ve explained, time is of the essence when it comes to long-term outcomes following a cancer diagnosis. Medical professionals cannot work miracles, and often they simply cannot discover the condition soon enough to avoid any long term problems. However, in far more cases than acceptable, medical teams do not act appropriately, failing to catch cancer when reasonable doctors would have caught it. This often includes failure to conduct basic tests or mistakes in the reading of those tests. When this occurs local residents should consult with legal professionals to better understand how the law might apply in their case.

Most discussions of medical malpractice and cancer center on those diagnostic issues.

However, there are other issues in cancer treatment which may implicate medical neglect—improper pain control during cancer treatments. An article from American Medical Experts touched on these concerns. Referred to as “chronic opioid therapy,” this pain treatment, according to medical experts, “requires clinical skills and knowledge in both the principles of opioid prescribing and on the assessment and management of risks associated with opioid abuse, addiction, and diversion.” There are also various guidelines from expert panels that provide basic recommendation on how to handle these issues.

In other words, managing these pain programs for cancer patients is not necessarily some roughshod process whereby doctors randomly dole out prescription whenever they think appropriate to a patient. There is a right way and a wrong way to do it—one that accounts for the very powerful addictive forces of the drugs and understanding of the possibility for abuse and addiction.

Each Illinois medical malpractice lawyer at our firm was interested to read that pain treatment in this context does not revolve entirely around powerful narcotics. The story notes, for example, that non-steroidal anti-inflammatory drugs like ibuprofen can be an important part of these therapies, because they can reduce inflammation connected to tumors that are pressing on tissues. Similarly, there are apparently various procedures called nerve blocks which are often helpful ways to relieved localized pain without resorting to opioids.

Of course cancer pain treatment undeniably often requires significant narcotics usage. However, there are very different ways to handle the overall narcotic usage depending on how the cancer progresses. At times it is necessary to switch to different narcotics to reduce tolerance helping to allow a lower dose. Other tools can be used to lower dosages while keeping the same medication.

All of this is simply another reminder that medical professionals should act reasonably in regard to all of these issues, including managing cancer pain treatment issues. Like all patients on these drugs, there is a risk of addiction. That risk isn’t necessarily high when properly managed, but for those who develop unnecessary dependencies the ramifications can be significant. Failure to properly control pain may involve medical negligence, because it could indicate a breach of basic standards of care. If you suspect you might have been harmed in this way, be sure to reach out to a legal professional to share your story.

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Last week the State-Journal Register published a letter which re-emphasizes the role that the civil courts play and how they work to protect citizens across our state. Written by the President of the Illinois Trial Lawyers Association, Jerry Latherow, the article explains how those hurt by negligence, recklessness, and intentional misconduct depend on the basic system each and every day. Each Illinois medical malpractice lawyer at our firm is proud to help local residents navigate that civil justice system to ensure there is accountability and redress after errors or accidents.

The article explains how many corporations, health-care providers, and insurance companies are motivated by profits instead of considerations of safety or service. As a result, those entities often try to skirt all responsibility unless forced to do otherwise. Unfortunately, state and federal regulatory agencies lack the oversight resources and mechanisms to ensure the consequences of these entities are held in check. That is where the civil justice system comes in—leveling the playing field for all community members.

Our Chicago medical malpractice attorneys know that those very entities held in check by the system often work to undermine is efficacy. As a result, despite the critical role played by the system, many community members do not understand exactly what the civil justice system provides or the consequences of weakening that system. It is important that none of us take the benefits of the system for granted.

Under the civil law, all individual Americans have the right to hold those who harm them responsible for that harm. This right exists whether the other party is a friend, neighbor, stranger, or even large corporation. This accountability tool ensures that those hurt can recover as much as possible as a result of the harm. In addition, it acts as an important deterrent—particular for big businesses—to enact safety protocols that prevent harm before they occur.

This seems like a basic principle and system that all should respect. But the biggest corporations, like big tobacco, pharmaceutical companies, big oil, and insurance companies, try to undermine the system. The civil justice system is often demonized by these companies and their front groups. Local community members have likely heard this message, seemingly blaming the civil justice system for virtually all problems in society at one point or another.

Our Illinois medical malpractice attorneys firmly believe that it is imperative to stand up to the misleading efforts to weaken the civil justice system. As Latherow explains, “Without it, these powerful corporations would have free reign to make and break the rules.”

At the end of the day, the truth is there is no “problem” with the civil justice system in Illinois that needs any fixing. All proposed “fixes” are nothing more than attempts to change the system to slant more heavily toward big interests and away from regular community members. Literally no credible evidence exists which connects the civil justice system to the health of our economy or healthcare system as a whole. Those who suggest otherwise are misleading the public and working to make the legal system a bit less fair and our community a bit less safe.

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Our Chicago medical malpractice attorneys were concerned this week to read a summary of a new study which revealed troubling information about the state of our local healthcare systems. The latest edition of the Illinois Trial Lawyers Association’s “Justice for All” newsletter summarized a Crain’s Chicago Business story on a new report which suggested that Chicagoland ranks quite poorly on a number of healthcare variables: including overall care and costs.

The report, from the Commonwealth Fund found that the city ranked 215th out of the 306 markets nationwide examined. The city was cited for problems in a wide range of areas. The basic rankings were compiled using a range of criteria. In general, our medical malpractice lawyers understand that the information is probably best when used to understand the national average (or median) of some variable and comparing that with the Chicago scores on the variables.

For example, the national median is that 17.7% of Medicare patients require readmittance to the hospital within a month of their previous discharge. How does Chicago score? Worse than the national average. In Chicago, nearly one in four Medicare patients have to go back to the hospital within a month—far higher than in most other parts of the country. Similarly, one common condition, pneumonia, is treated according to proper recommended care nearly 97% of the time in most locations across the country. In the Chicago healthcare market that proper care is only received 92% of the time.

The local market performed poorly in various other areas. Take pain prevention. The nationwide median when all 306 markets were taken into account was that 63.2% of patients had their pain properly controlled. Chicago did not perform that well. Hospitals in our area generally properly controlled patient pain in only 58% of cases. Clearly there is room for improvement.

Surgical problems also exist. The study involved examination of proper surgical preventative care that lessened the risk of complications. The national median was that only 3.8% of surgical patients do not receive proper care to prevent complications. Chicago’s rates are more than 225% higher, at 8%. These are troubling statistics that indicate local patients are simply at significantly more risk suffering from preventable harm.

The problem is not only on quality of care measures. For example, the national average for health insurance premiums is $3,314. In Chicago the rate is 12% higher at around $3,700. What is the cause of the pricing discrepancy? The poor care itself may result in increased costs being passed on to patients. In other words, actually tackling Chicago medical malpractice or other medical quality problems will not only have the obvious improvement in care but will also save money. It is yet another reminder of the wide-ranging toll that these issues have on our overall healthcare system.

Summarizing the overall results of the Commonwealth Fund’s study, one co-author of the report stated that the results “are all symptomatic of a care system that has access barriers to timely and effective primary care, care in the community and it under-investing in public health.”

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