Illinois Medical Malpractice Blog

In a recent decision regarding the collateral source rule, the Illinois Supreme Court held that a Plaintiff is entitled to recover the full amount of medical bills even the amount actually paid by Medicare and Medicaid was less than the full amount. The decision came following a trial court decision to reduce the amount of damages awarded by the jury to amount of medical expenses actually paid. The Illinois Supreme Court reversed because the collateral source rule applies even if bills are paid by government agencies instead of private insurance. This decision is a victory for all Plaintiffs whose compensation would be limited by unpaid medical bills.

For the full decision, click here:

Six people are dead and three injured after a medical helicopter crashed into another medical helicopter. The medical helicopter crashes came after the planes were transporting injured patients to the hospital. Medical errors are thought to be grounded in hospitals such as medical malpractice physician errors, pharmaceutical errors or medical device liability claims. This plane accident sheds light on a growing problem of medical helicopter crashes which raises questions about liability for the patient’s health and for the health of hospital and medical employees. To read about the most recent crash click here.

A Midwestern woman recently was awarded $2.75 Million following an incident of medical malpractice and negligence. Physicians failed to test a tumor that was removed from her foot, which had they tested it, would likely have tested positive for melanoma cancer. Instead, one year later, another tumor was removed that, when tested, revealed the cancer. However, due to state damage limit laws, she will likely only receive $1.25 Million.

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A new tort reform bill proposed in the House of Representatives may bring justice to those who face medical device defects and have pharmaceutical liability claims. The bill, titled the Medical Device Safety Act would allow those to bring product liability suits even on products approved by the FDA. This bill would allow those who suffered personal injuries from medical device defects and defective drugs to have a cause of action against the makers of such products. To read more about this tort reform that allows this nation to head in a positive direction click here.

Dr. Jayant Patel is going to be extradited from the United States to Australia on charges of manslaughter for the deaths of three of his patients. The doctor is now asking to be freed for the weeks before the extradition occurs in order to see a cardiologist, attend religious services, and organize documents for his defense; a judge has not yet ruled on his request but may do so today. Patel has faced accusations of medical mistakes for most of his career, starting with his residency and running throughout his tenure as a surgeon at a hospital. The charges are criminal, stemming from a stay at a hospital in Australia. U.S. prosecutors allege medical errors such as failing to stop internal bleeding in a patient who later died, removing a healthy gland instead of a cancerous one, and tearing a patient’s esophagus. There is no word yet whether the families of the deceased patients will file wrongful death lawsuits for the doctor’s alleged medical malpractice.

Read more here.

Following revelations that GlaxoSmithKline misrepresented the suicide risk associated with Paxil, an antidepressant, a recent study has concluded that the drug may also double the risk of congenital malformations in newborns. This study follows the release of information that taking Paxil may lead to an 8 times greater risk of suicide. The company had previously artificially reduced the risk of suicide by improperly counting patients who took placebos.

Similarly, women who took Paxil while pregnant and gave birth to babies with severe birth defects are outraged believing that GlaxoSmithKline may once again have misrepresented the dangers of their drug. Many of these women argue that if they had been properly informed about the risk of birth defects, they likely would not have taken Paxil during their first trimester.

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A product recall has been issued for Total Body Formula and Total Body Mega Formula products. The products which are suppose to help with overall fitness have instead lead to serious personal injuries to the users of the recalled product. The nutrition supplement recall follows after the products were determined to contain toxic levels of some chemicals. Product liability lawsuits have already been filed by users of the recalled product who have suffered personal injuries from hair loss to pain in their legs. Product manufacturer lawsuits and lawsuits against the distributor of the recalled pharmaceutical and health product may be forthcoming. To read the full article click here.

One state and the biggest insurer therein announced a list of 28 medical errors for which doctors and hospitals will no longer be reimbursed. The 28 errors entail mistakes such as performing surgery on the wrong body part, or the wrong patient, performing the wrong surgical procedure on a patient, unintentionally leaving a foreign body in a patient, and death or serious disability resulting from a medication error such as the wrong drug or dose. The list will be used by Blue Cross Blue Shield in the particular state and by several state agencies that provide or subsidize insurance for various groups including needy people. This comes after Medicare announced last year that it would stop paying for what are called “never events,” such as leaving a foreign object inside a surgical patient. This initiative may spread to other states, including Illinois.

Read more here.

Following the lead of a Midwestern hospital, facilities throughout the country are taking a novel approach to medical malpractice – honesty. In an effort to limit liability, hospitals are calling patients’ families for meetings where they inform the family members that their loved one died, not because of natural causes, but physician malpractice or negligence. Surprisingly, the approach has worked to the extent that most family members appreciate an honest account of the cause of death.

However, there is an invidious motive behind this new policy. Hospitals are finding that by calling family members into their facility and telling them what happened, they are able to force ignorant or misinformed grieving family members into an emotional decision to settle before even consulting an attorney. This has the potential to create problems where settlements are far below fair compensation for the pain and suffering experienced by the family or even insufficient to cover basic medical expenses. Many of these cases involve gross negligence on the part of physicians where a patient is administered the wrong medication or a fundamental test is not performed that could have prevented death.

Ultimately, the policy of honesty has potential in wrongful death situations. However, patients and family members should be cautious when faced with a sudden decision to settle. At the very least, these individuals should avoid making an emotional decision on-the-spot. To this extent, consulting an attorney would help improve and refine this new approach to medical malpractice.

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A state legislative agreement was announced today that will publicize the names of doctors charged with misconduct and will give those doctors just one day to produce office records demanded by investigators. The measure is in response to a case where a physician improperly exercised controls over infections resulting in notifications to 10,000 patients that they may be infected. The physician had infected at least one patient with hepatitis C by reusing syringes. That same doctor had also been involved in 10 medical malpractice settlements in 10 years, which should have triggered a state investigation.

The new bill will require increased review of medical malpractice records to find patterns disturbing patterns. The bill will also increase transparency, a critical step to improved patient confidence in physicians and the medical profession. The increased access to medical records will also assist patients seeking to hold physicians accountable for their negligence and malpractice.

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Dennis Quaid’s newborn infants almost died earlier this year after a medication dosing error where they were given an adult dose of a blood thinner. The babies were hospitalized at the time for an infection, however they were doing well when a nurse misread a drug label and inadvertently gave the infants the adult dose, an overdose of the drug for the babies. This caused the infants’ blood to turn essentially into the consistency of water, and they were bruised and bleeding profusely, one of the infants was even bleeding through its belly button. What disturbed Quaid and his wife the most was the hospital’s reaction to the mistake, no one called to notify them, and when they came to visit the next morning, they were confronted by risk management officials from the hospital. While Quaid’s children recovered, other infants have died from similar medication errors regarding pediatric versus adult dosing and labeling. Quaid is now trying to bring attention to medical mistakes in general, which are a leading cause of death in America.

Read the full story here.

Swedish Covenant Hospital in Chicago recently settled a case for nearly $8 Million based on medical malpractice and negligence. The settlement comes following a physician’s failure to diagnose a nurse with meningitis even though she complained of sudden, severe joint pain, headaches and neck stiffness. Her meningitis was left undiagnosed for three days, leading to severe mental and physical disabilities. Further, she became dependent on others for nearly all aspects of self-care and mobility and suffered from severe deficits in social skills. Had the emergency room staff properly diagnosed the woman, she could have avoided severe life-long damage.

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After actor John Ritter died in 2003 from an aortic dissection, his family filed a wrongful death lawsuit against multiple doctors and a hospital. The family settled with the hospital and other people involved for $14 million but sought another $67 million at trial against remaining doctors, alleging that Ritter’s cardiologist misdiagnosed his aortic dissection as a heart attack, consequently mistreating it. Further, the suit alleged that a radiologist failed to perform an x-ray which could have shown the aortic dissection, leading to a missed opportunity for Ritter to receive potentially life-saving surgery. The jury, however, disagreed with his family’s arguments and found in favor of the defendant doctors.

While the Ritter family did not receive the $67 million they asked for, the case still showed the inequities of capping medical malpractice awards. For loss of income, there is normally no cap or a very high one, where as loss of companionship has very low limits. This means that wealthy people, who would have made more in their lifetime, can be awarded larger settlements for the same issues. Often this means that a case on behalf of a decedent who was retired, unemployed, or otherwise not making much money will not be worth filing because of caps on potential awards. Conversely, the same case on behalf of a decedent who was making a large amount of money will be worth filing because the award may be greater since loss of income will have a high cap, if one at all. For example, Ritter’s family could have been awarded a large amount because he had huge earning potential, whereas an unemployed person who died in the same manner would not have been able to receive nearly as large an award because their earning potential was so much smaller.

Read more here.

In Thornton v. Garcini, M. D., No. 3-07-0326 (May 16, 2008) Will County (CARTER), the Third District affirmed the trial court's holding that the Plaintiff was not required to present any expert testimony with regards to her claim for negligent infliction of emotional distress as result of defendant, doctor, leaving her to remain in delivery room with dead infant half delivered for more than an hour.

Further, because single recovery rule was not raised in trial court, and because there was no testimony with regards to how the settlement between plaintiff and nurses and hospital for medical malpractice was apportioned, defendant, doctor, is not entitled to any set off from prior settlement.

In Mercado v. Mount Sinai Hospital Medical Center of Chicago, No. 1-06-1825 (May 27, 2008) 1st div. (Cahill), the Court certified a question answered and held that the plaintiff's complaint for wrongful death of her fetus daughter is not barred by the provisions of Section 2.2 of Wrongful Death Act; because complaint alleges that she agreed to terminate the pregnancy based on misdiagnosis that she had an ectopic pregnancy, which was not viable, when she actually had a viable uterine pregnancy. Therefore, plaintiff's agreement to terminate her pregnancy does not qualify as a "requisite consent" within meaning of Act.

A study of doctor response time in emergency situations published in the New England Journal of Medicine found a strong correlation between delayed time to defibrillation after in-hospital cardiac arrest and a patient’s likelihood of survival. The study lasted five years and covered nearly 15% of the large hospitals in the country. The factors the study identified as highly correlated with response time were hospital size and admitting diagnosis. Small hospitals tended to have quicker response time while patients admitted with non-cardiac diagnoses experienced a higher response time following cardiac arrest.

Surprisingly, however, the study also found a strong correlation between race and response time. In fact, African-Americans and Native Americans experienced nearly 25% greater response times when undergoing cardiac arrest. 25% is extremely significant when considering that only 30% of patients underwent defibrillation after two minutes. However, any time beyond two minutes exceeds the guidelines-based recommendations. This speaks to major problems in hospital response time where nearly 1/3 of responses exceed widely-accepted recommendations.

The significance of this delayed response time? When defibrillation was delayed, patients only had a 22% chance of survival while reasonable response time resulted in a nearly 40% survival rate. Furthermore, the study’s numbers were skewed in favor of successful hospitals as the study was voluntary. One of the study’s authors even noted that this likely resulted in responses from only generally quality care facilities.

Following this study, physicians should realize seconds do make a difference. Many of us have images of doctors on television yelling “Code Blue” and running to revive their patients. In reality, unfortunately, physicians are not always as quick to the punch. In hospitals where such delays are a recurring event, the lack of an adequate response is nothing short of negligent.

For the full study, click here:

The 5th District in Britton v. University of Chicago Hospitals, No. 1-06-3080 (May 27, 2008) 5th div. (Tully) Affirmed. The court reasoned that Plaintiff's complaint against the hospital for injuries sustained when she pushed on a glass door that broke is subject to summary dismissal because the plaintiff did not present any evidence to show that hospital breached its duty to maintain door; or that its negligence in maintaining the door proximately caused her injuries. Since the door was not in exclusive control of defendant the doctrine of res ipsa loquitor does not apply.

In a 2006 study performed by the Harvard School of Public Health and the Harvard Risk Management Foundation, over one thousand medical malpractice files from insurance companies throughout the nation were examined, revealing that more than two thirds of claims contained a clear error on behalf of a medical provider. This study helps to dispel the notion that malpractice claims are mostly frivolous.

In a separate study performed by the Robert Wood Johnson Foundation, it was shown that medical malpractice lawsuits, by enlarge, have only minimal effects on the profession. Exemplifying this is the fact states that do not place caps on malpractice awards are not experiencing large emigrations of their physicians. Moreover, most tort reform has not aided the number of physicians or effected insurance and litigation costs.

Read more here.

The 4th District in In re: A.W., No. 4-07-0489 (April 24, 2008) Sangamon County (STEIGMANN) reversed the trial court's decision and held evidence was insufficient to prove that State followed required procedure before filing its petition for involuntary treatment of Respondent for schizo affective disorder by use of psychotropic medication; because testimony by psychiatrist that she placed written information about proposed medication, side effects and alternative treatment in Respondent's box is insufficient. Further, testimony referring to proposed medication list with dosages up to certain amounts is insufficient. In addition, order is not sufficiently specific. However, it is not error to include in petition and order the proposed administration of Cogentin, a non psychotropic side effect reducing drug.

The American Medical Association is opposing proposals to use “secret shoppers” to evaluate physicians and their relationship with patients. The AMA contends that “secret shoppers” will detract from the real work done by physicians by preventing them from seeing actual patients. The use of “secret shoppers” is simply part of the consumer health information wave but appears to mainly benefit insurers and businesses seeking to limit their health care costs. Physicians also expressed concern that the practice was grossly unethical and would violate the doctor-patient relationship.

At the same conference, the AMA President told physicians to improve patient information and reduce medical errors.

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The Illinois Appellate Court, 1st Dist. Caywood v. Gossett, No. 1-06-2458 (April 11, 2008) 6th div. (OMALLEY) Affirmed; Because plaintiff knew, or should have known, that her condition, with severe sinus infection and fistula between site of tooth extraction and her sinuses was the result of treatment provided by defendant, dentists, on or before her third surgery to correct it, it is barred by limitations period of Section 13-212 of Code of Civil Procedure. Further, the continuous course of negligent treatment exception does not apply to her circumstances; because she saw several specialists during relevant time period, some of whom told her that her tooth extraction caused her problems.

Two state medical insurers are implementing plans to create physician ranking systems that would reduce patient co-payments for visits to higher rated doctors, despite opposition from a state medical group. The medical group filed a lawsuit stating that the tiered system is unfair to physicians who arbitrarily receive low scores while providing a high level of care. The group also argues that higher costs for visiting lower rated physicians are intended to defraud patients. Worse yet, no system exists for evaluating the effectiveness of physician ranking systems. The measures appear to be largely for the benefit of insurers, not patients, and will likely have no impact on medical malpractice or the quality of care provided.

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In 1999 a survey was conducted by the Institute of Medicine that reported between 48,000 and 98,000 Americans dying yearly as a result of preventable medical errors. Specifically, medication errors and neglect were to blame for the deaths. Shockingly, this makes hospital errors the eighth highest cause of death in the United States, above car crashes. The most mistakes occurred in hospitals run by the Veterans Health Administration. Apparently almost ten years has made little difference in VA hospitals, as lawsuits and complaints against them are numerous. A possible explanation for the high rate of errors is that VA doctors do not have to pay their own malpractice insurance since the government pays out for any harm caused by a doctor’s negligence. Further, the caliber of VA doctors may be lower than the general population; take, for example; Dr. Veizaga-Mendez, who was hired by the VA even though he had a history of medical malpractice lawsuits and claims against him. Hopefully the onslaught of medical malpractice lawsuits and allegations will instigate a change in VA hospitals.

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The Third District Appellate Court in Illinois ruled that a wronged woman could recover from a negligent physician even though she had previously been awarded damages in a suit against the hospital. The woman’s claim for intentional infliction of emotional distress against the physician was validated by the court, especially given the extreme negligence displayed by the physician. The woman’s infant son died during child birth after a premature delivery. Her physician was not present at the hospital at the time of the delivery and do no other doctor was present to assist in the delivery. As a result, the woman sat with her baby in a partially-delivered position for over one hour until her physician arrived and completed delivering the baby, who was deceased by this time. A jury awarded the woman damages based on negligence and intentional infliction of emotional distress.

For the full decision, click here:

A pharmaceutical lawsuit has been filed against Baxter after an individual received tainted heparin. The tainted product given to the 38 year old man lead him to suffer from serious personal injuries, pain and suffering and emotional trauma. There is likely a medical malpractice suit to be alleged against the dialysis clinic where the individual received the tainted medication from. To see the full story click here.

Vanessa Jenkins gave birth to her son, Cody Smithey, in 2001 at Valley West Community Hospital. Jenkins, who is from Aurora, Illinois, was allegedly having an uneventful labor until Dr. Martin Brauwelier repeatedly used a vacuum extractor device, using it 18 times within 50 minutes, unsuccessfully. At that point an emergency Caesarean section was performed by a different doctor because the baby’s fetal heart rate displayed signs of distress, at least that is what Jenkins’ lawsuit alleged. After Cody suffered brain damage and ended up with cerebral palsy and mental retardation, Jenkins filed suit claiming his birth injuries resulted from medical negligence. The medical malpractice suit, filed six years ago against the Illinois hospital, its staff, and the doctor, settled Tuesday for $15.35 million.

Read more here.

Levin & Perconti will sponsor the American Constitution Society for Law and Policy’s Chicago Lawyer Chapter this coming year. ACS is an organization of legal professionals including lawyers, judges, law professors, students, and policymakers that seek to uphold the fundamental principles of human dignity, rights for individuals, justice and equality continue to hold a central place in American law.

A state medical board is planning to put information about medical malpractice actions against physicians on its website in an effort to better inform the public about their caregivers. The proposed plan would disclose malpractice payments for individual doctors going back only seven years. However, the medical board is receiving vehement opposition from physicians groups that claim such reporting will adversely impact their practices and will misinform the public. This opposition is misguided given that doctors would be allowed to add comments explaining the circumstances of an individual legal action. Furthermore, the website would disclose whether the medical board publicly disciplined the physician, indicating whether the physician’s malpractice was caused by negligence. Such protections would limit the unintended consequences for physicians while protecting the public by increasing transparency and access to information.

For the full article, click here:

Serious burn injuries and raw skin have occurred after use of the popular pain relieving product, Icy Hot pain patches. A medical product recall has occurred earlier this year where the manufacturer recalled medical products totaling nearly 2.3 million patches. Medical product complaints have been directed to the manufacturer, Chattem Inc, since the product’s distribution in December of 2006. Those suffering medical product personal injuries may think about filing a personal injury lawsuit or a product liability lawsuit. To see the full story on this heated debate click here.

Hepatitis C outbreaks have been linked to unsafe hospital injection practices at an Endoscopy Center. So far eighty-four individuals have contracted the disease due to the hospital’s medical malpractice. The Doctor’s negligent practices have been linked to one day when two identified physicians were on call. Medical malpractice lawsuits have already been filed and more medical malpractice suits will arise in the future as more individuals contract Hepatitis C from the hospital’s illegal conduct. As medical care is increasingly relied upon for protection and heath it is imperative that hospitals and physicians follow protocols and procedures to prevent the spread of infectious diseases, virus and bacteria. To read the full story click here.

A woman’s family who sued a hospital where she was treated after she died there in 2003 has reached a settlement with the defendant hospital. The terms of the settlement are unknown, but past suits against the same hospital have yielded millions in settlements for alleged hospital errors. In the case at hand, 73-year-old Evelyn Weeks died after being admitted for a brain hemorrhage. Her family alleged that medication was given to Weeks through the wrong tube, while the hospital claims she died as a result of a stroke. Either way, the family’s allegations of medical malpractice were strong enough to bring in a settlement. The family stood to gain damages for medical and funeral expenses, pain and suffering, and loss of companionship from the untimely death had the wrongful death lawsuit gone to trial.

Read more here.

In an op-ed piece, the head of a state medical society favors continued erosion of patients’ rights in favor of the insurance industry by unequivocally supporting medical malpractice caps. An Illinois bill, passed and signed into law in 2005, caps non-economic damages but was deemed unconstitutional by a Cook County judge.

Those most affected by this bill are innocent victims of medical malpractice and negligence and their families. Placing a cap on their recovery takes the decision out of juries’ hands, juries that are best able to determine the level of pain and suffering these individuals experience.

One of the primary goals of tort reform is to lower doctor rates for doctors. However, historically, the most successful method to for achieving this goal is insurance regulatory reform, not tort reform. When states, including Illinois, have instituted insurance regulatory reform, rates have dropped and competition has increased. To this extent, tort reform does not benefit patients but helps the insurance industry.

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Recently, a 13-year-old Illinois boy died at a Chicago hospital after being brought there with very severe signs of neglect including ulcers, one of which was seeping pus. The boy was being taken care of by his mother and three nurses for various conditions including cerebral palsy. One of the nurses, Morris Lee Brinkley, found him when she started her shift lying in his own feces and urine in the mornings, yet still failed to make a call to the Illinois Department of Children and Family Services ("DCFS"), which might have saved his life. The other nurse, Loren Brown, did not call DCFS either, though she knew the boy's mother had failed to take him to his doctor's appointments. Both nurses claim that they informed their supervisor of the child's condition, but she denies any such knowledge, further, when the nurses did not see any reaction, they should have made the call to DCFS themselves. The boy’s mother, although not a medical professional, is far from without fault however, as she had a heavy hand in his neglect. The boy’s death has been ruled a homicide, and his mother and the two nurses have been charged with felony neglect and failure to report a neglected child. The extreme level of neglect that was reached could have been prevented had there not been a nursing error: by failing to report the abuse, Brinkley and Brown, regardless of their hand in the actual neglect, made a deadly error in judgment, and their prosecution may show that medical malpractice was involved.

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Chantix drug problems arise as the popular drug used to quit smoking comes under scrutiny. The Chantix drug adverse effects include serious personal injuries, skin reactions, seizures, aggression and suicide. Nearly 1000 FDA personal injury reports have been made since the drug received its May 2006 approval, 28 of those injuries included serious car accident injuries. Sales of the drug continue nationwide, even in Chicago, Illinois. To read the full story on Chantix click here.