February 29, 2012

Pediatric Hospital Bed Recalled by FDA

Med Page Today reported on a new product recall that may have implications for care received by our most vulnerable patients at hospitals across the country. The U.S. Food and Drugs Administration issued a recall last week of a certain class of hospital bassinets. The FDA explained that the bed may actually put children at risk. Our Illinois medical malpractice lawyers hope that all local facilities act quickly to ensure these beds are pulled from use. One of the benefits of having FDA oversight is to ensure steps can be taken before real harm occurs to unsuspecting patients and consumers.

The Perinatal Pediatric Hospital Bed recalled was found to have faulty doors and drawers. As a result the doors may inadvertently open when the bed is moved. The opening doors affect the swiveling and movement of the beds, which can lead to a range of issues affecting these very vulnerable infants. The FDA noted that serious injury and death may result because of this design defect. The particular beds in question were manufactured over a nine years period, from November 2003 until just this month. This FDA recall is in addition to a hold that the manufacturing company itself put on the product in October.

The FDA has labeled the recall Class I. Class I recalls are the most serious in that they have the potential to pose a reasonable risk of serious injury or death. This is most likely the case in this individual sitaution because of the vulnerabilities already faced by those relying on the product—infants in hospitals.

Product issues in the hospital context often implicate various legal issues. On one hand, injuries caused by defective products, even if they occur in a hospital, do not implicate medical malpractice. Actual malpractice is a legal claim that specifically alleges that a professional did not act with reasonable care when acting that professional capacity. That is different than a patient being hurt by a product that was improperly designed. In cases like this one it is easy to understand the distinction between the two types of claims.

However, some hospital injuries present real questions about whether medical malpractice is involved or just regular negligence. For example, each Chicago medical malpractice lawyer at our firm knows that patients are often injured because they fall while at the hospital. One common scenario is when a patient with mobility issues falls while going to, coming from, or using the restroom. In other situations, a patient may fall off a hospital bed or become injured by a bed rail problem. In those situations there is often disagreement about whether any malpractice was involved or simple negligence. The issue usually hinges on the definition of professional duties. Sometimes there is argument over whether helping a resident to and from a bathroom is part of the skill required by a professional medical caregiver or simple basic services.

However, local residents should remember that these are legal distinctions that affect how a suit is brought, what evidence needs to be collected, and similar details. It does not affect ones overall ability to seek compensation for the harm they suffered as a result of the injury. Hospitals and caregivers can be held liable for both medical malpractice as well as ordinary negligence.

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February 28, 2012

Effectiveness of Patient Safety Efforts Questioned

One of the most disappointing aspects of the misguided push for “tort reform” is the distorting effect is has on discussions of medical errors. Instead of talking about the amount of community members affected by preventable negligence, public discourse on the topic focuses almost exclusively on taking away legal rights of those hurt. Each Chicago medical malpractice lawyer at our firm appreciates that this skewed dialogue is reflected in the efforts—or lack of efforts—targeted at the actual problem of medical negligence.

Thirteen years ago the landmark study “Do No Harm” shocked many with the finding that as many as 98,000 patient die every year because of preventable medical errors. The report, from the Institute of Medicine, caused an uproar at the time. However, in the years since, it has become clear that those original estimates are actually low. How much have we advanced in patient safety efforts since that time? According to many observers, not much.

Kaiser Health published a story last week and offered an analysis into the way that federal patient safety efforts may not be doing nearly enough to keep patients safe. The particular federal patient safety effort in question related to the “hospital engagement network (HEN). This is a new Medicare-led program that has been charged with the ambitious goal of preventing 60,000 deaths and 1.8 million injuries over a three year period. There are currently twenty six different HENs, each working to jointly reach those goals by minimizing “hospital acquired conditions”—which are fancy ways of saying medical malpractice.

Those high numbers and an expected cost of $218 million may suggest that federal officials are finally getting serious about fixing this problem. But, some involved parties want to remind the public that even if those ambitious goals are met, this represents less than half of documented cases of patient harm.

The main thrust of the HEN program—and what makes it better than previous efforts—is that it focuses much more on bottom line accountability. One of the program’s co-directors explained that “this is a full court press unlike anything I’ve seen in my ten years in government.” What she means is that never before have there been as many resources put into the effort and as much accountability mechanisms built in. It will be harder for involved medical facilities to use creative explanations of errors or other claims to excuse failure to meet goals. Our Illinois medical malpractice attorneys appreciate the importance of this accountability.

However, as the results of the HEN programs come in, it will be important to keep reminding those involved about the relative modesty of the program goals. In fact, a wide range of groups—from Consumers Advancing Patient Safety to Mothers Against Medical Errors—believe that the targets are too low. In addition, these groups remind advocates that simply withholding certain federal dollars alone is likely not enough to tackle the full scope of this problem. Patients and their families need to retain the strong incentive to hold facilities accountable in individual cases of mistreatment for the vast harm caused.

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February 27, 2012

Fighting Healthcare Fraud Beings with Whistleblowers

One of the most common claims made against those attacking medical malpractice attorneys and urging passage of “tort reform” legislation is that medical malpractice lawsuits cause increases in “Defensive Medicine.” The logic goes that because doctors fear being sued they order tests and other medical procedures which are entirely unnecessary. These unnecessary medical procedures drive up the cost of care overall, these proponents say, and so eliminating it via tort reform is a public good.

Astute readers likely spot an immediate problem with this argument. It is perverse to take away right of medical malpractice victims—who did nothing wrong—in order to “fix” a problem of medical care waste. If defensive medicine is an issue, why not address it head on? Let’s crack down on wasteful medical spending, not take away legal rights from those injured by the misconduct of those professionals.

While “defensive medicine” sounds innocuous, in the end it is often nothing more than healthcare fraud. It is illegal for medical care providers to make insurance claims or Medicare and Medicaid claims for medical services which are unnecessary. If doctors are doing this, they need to be stopped. Yet, sometimes it is incredibly difficult to catch this form of fraud. It is often subtle and hard for investigators to root out.

Instead, our Illinois medical malpractice lawyers appreciate that in the past the main way that this fraud was caught was with the help of whistleblowers. Fortunately, there has been an increase in the number of whistleblower cases over the past few years. According to a USA Today story, of the $16 billion recovered by the federal Justice Department in these cases, more than 36% has come in the last two years. Observers explain that this is a result of the False Claims Act of 2009 and the Obama administration’s effort to crack down on misuse of funds. It is a strong reminder of the benefit of attacking a problem directly—insurance fraud—instead of via unnecessary indirect actions—trying to take away rights of medical malpractice victims.

As one federal legal professional working on these efforts explained, “We’ve made health care fraud such a high priority; we’ve been using this tool very, very aggressively.” The effort has been successful in large part because of the amped up tools available to those fighting this fraud. Under the 2009 law, the government can collected up to three times the amount fraudulently taken. Of course, this is vital, because if the risk to the company engaging in the practice were only the amount of the fraudulently taken money itself, than there would be much financial incentive to risk the practice in hopes of not getting caught.

In fact, even with the success in the effort so far, many believe that there is still room for improvement to crack down on insurance fraud even more. As the justice department lawyer explained, “About 3,500 fraud cases have not been investigated. Why don’t they get the resources? For every case they prosecute, they bring in more money.” Our medical malpractice lawyers understand that the reason is often political. There are many different interests at stake in these situations, and common sense and fairness often get thrown out in the window in favor of appeasing powerful groups like pharmaceutical companies and hospitals.

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February 26, 2012

Unclean Surgical Instruments Risking Lives in Operating Rooms

Surgery is the time when a patient is most vulnerable. When one is put under anesthesia and has their body opened up, there is always a risk that some complication may develop which may lead to some long-term problems down the road. That fact that the patient is unconscious makes it all the more critical that the doctor-patient relationship be one of complete trust. Patients are literally putting their lives into the hands of another. Our Illinois medical malpractice lawyers have worked with many clients where that trust was violated.

Unfortunately, through the years we have discovered that there are many surgical complications which develop that should have been prevented. Most of the time doctors do everything in their power to keep patients safe. However, there are always certain instances where basic lapses in care are made with harmful results. For example, sometimes even something as simple as keeping surgical instruments clean is forgotten about or done negligently. A story in iWatch News probes this issue, finding that dirty surgical tools might a hidden form of medical malpractice across the country.

For example, the tale of one 63-year old man was shared. The salesman went into the hospital to have surgery performed on a torn rotator cuff in his right shoulder. This was supposed to be a routine procedure that required, at most, a single night’s stay in the hospital. He was then expected to need a bit of physical therapy before being back to normal. At first everything seemed to be going fine. However, in the weeks after the surgery his scar began to show signs of problems. It turned bright red, became hot, and eventually oozed a strange substance. He eventually had to rush back to the hospital for an emergency check-up. While at the hospital the family discovered that the man had developed an infection. The infection had eaten away part of his shoulder bone. More, much more comprehensive surgeries were required. Since then he has lost most of the mobility in his shoulder and has had his life turned upside down.

It was only later that the man discovered that his ordeal was caused by hospital negligence. In fact, he was one of seven people at that same hospital who developed severe infections over a two-week period as a result of incorrect sterilization procedures. The outbreak caused the Centers for Disease Control and Prevention to get involved. The federal body began an investigation. Each Chicago medical malpractice lawyer at our firm was shocked to read about what the investigations uncovered. Using cameras which test cleanliness that couldn’t be seen with the naked eye, the investigators found that the instruments were far from clean. In fact, pieces of other patients’ skin and bones were on the instruments.

The family in this case ultimately filed a lawsuit against both the hospital as well as the manufacturer of the medical devices. The claim against the manufacturer is based on a larger problem involving the manufacturer’s inadequate instructions to the hospitals regarding cleanliness procedures. The claims made by the company regarding the best way to clean the objects actual leaves them still dirty, open to infecting unsuspecting patients.

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February 25, 2012

More Evidence that Hiding Medical Mistakes Hurts Patients

American Medical News reported this week on the way that some medical facilities try to hide cover up, or otherwise distort information about medical errors. Instead of creating a “culture of safety” where mistakes are admitted and discussed to understand how they occur—conversations about them are often avoided entirely. Contrary to popular perception, medical malpractice lawyers are not about shaming or blaming individual doctors for mistakes that occur. Our role is to ensure that the one hurt by the misconduct of another receives fair redress for their loss—the shaming of the ones responsible is not at all a goal.

However, beyond redress, acting as a motivator to spur safety changes is a goal of all medical malpractice lawsuits. Yet, the culture in some medical facilities that tries to shield errors does not prioritize improvements. Fortunately, more and more steps are being taken to force that actual cultures of safety to be created. Medicare payments are often pegged to certain accountability standards and more evidence has been found which show that safer cultures correlate with fewer preventable medical errors and better outcomes for patients.

But there is still a long way to go.

Data released this month from the Agency for Healthcare Research and Quality has found that most medical professionals admit that the involved organizations are most interested in punishing individual professionals that make a mistake instead of harboring an open environment where errors are used as opportunities to learn and improve care. The data was culled from over 600,000 medical staff members who answered surveys at well over a thousand hospitals across the country.

Of the survey group, nearly 66% admitted that their mistakes were held in a personnel file. More than half actually did not feel free to “question the decisions or actions of those with more authority.” Our Chicago medical malpractice lawyers know that honesty is almost always the best (and safest) policy. When individual employees fear admitting errors, the patient is the one who suffers. One chief medical provider at a large hospital noted, “You can see how the traditional approach…has a hall monitor in elementary school feeling to it. It’s extraordinarily destructive in a patient safety context.”

Many medical facilities claim that they do not take this “finger pointing” approach—but observers say their claims are usually not following up by changes in action. As another patient safety expert admitted of the industry, “We’ve given more rhetoric than we have resources to this problem in health care.”

Instead, the Illinois medical malpractice lawyers at our firm believe that transparency is the best solution. Some medical facilities have shown great success by investigating claims of errors, being open with patients about the adverse events, and providing compensation for those errors when necessary. Fear of reporting errors by employees has been found to be far less common at hospitals with this open approach. Not surprisingly, this is reflected in patient safety statistics. When mistakes are not covered up, they can be learned from. When individual employees are not shunned for errors, they can use these opportunities as chances to understand weakness in their protocol and enact changes to prevent future harm.

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February 24, 2012

Hospitals Face Pressure to Reduce Medical Errors

The Associated Press is reporting this week on a string of serious medical errors which are leading some observers to question whether certain medical providers are actually doing all that they can to keep patients safe. The article focuses on the problems in one area where at least a dozen serious errors were reported. Government officials noted that the dozen reported errors were actually just the beginning, because there are likely more than eighty other errors which were committed but never reported. It is not surprising that there is a disconnect between the errors that occur and those that are reported. Many facilities would rather cover up their mistakes (and the ability to learn from them) rather than face potential medical malpractice lawsuits as a result of their errors. Each Chicago medical malpractice lawyer at our firm understands the natural instinct of hospital administrators to seek to avoid paying legal claim—but the safety of patients must come first.

The consequences are too stark.

For example, the article shares the story of one hospital that committed an error involving a three-week old infant. The child was in the neonatal intensive care unit when the nurse taking care of the baby mixed up a feeding line with an IV line. As a result of that mistake, the baby died. Instead of covering up the mistake or firing the nurse and claiming everything was now fine, the facility did the responsible thing and figured out systematic problems which allowed the error to occur. The hospital administrator explained the situation by noting that they “had to look at the system error about what was going on. [They] had to correct the system there.”

So what changed?

There are now colored coded tubes delineating each type of line in stark terms that are much harder to mix up. In addition, the tubes will not cross connect. Protocol has also been changed which requires nurses to trace the tubes back to their sources. On top of that nurses now have observers when administering to the babies. Other staff members are not allowed to interrupt a nurse when in the process, and nurses are required to maintain direct contact with the child during this time. All of these steps act as safeguards, ensuring that future fatal mistakes do not occur. Our Illinois medical malpractice lawyers realize that none of these changes would have been enacted had the initial error been covered up or swept under the rug.

We would all be better off if more hospitals acted in this way. The increased focus on patient safety has had very clear results. In 2008 the hospital reported 17 “serious safety events.” Last year that number had dropped to just one—even though the definition of what constituted a serious event was actually expanded.

Hospital officials explain that financial incentives factor into the facility changes. Not only can victims use the legal system to demand accountability, but state and federal regulators are increasingly seeking to tie funding to certain improvements in preventable error. This is particularly true when it comes to things like preventable medication errors, hospital acquired infections, and readmission rates.

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February 23, 2012

Substance Abuse Dependency Among Surgeons A Concern

Some of the best doctors may appear to be super-human when they perform miraculous operations that save lives in even the direst situations. However, all doctors are human like the rest of us and prone to the same strengths and weakness that affect all of us. Medical malpractice lawyers do not believe that doctors should be held to any standard different than that of other professionals. However, like any other community member, the civil law requires that those doctors—and relevant institutions—provide redress when their mistakes cause harm to another.

When an Illinois medical malpractice lawsuit is filed it does not necessarily mean that the doctor involved in inherently substandard. Instead, it may simply have been an individual lapse in judgment or care that can simply occur because human beings are not perfect. Redress still needs to be provided and accountability had but it does not necessarily speak to the work that the doctor is capable of performing in the future. Every situation must be examined on a case-by-case basis with general judgments avoided.

However, at times medical malpractice lawsuits can be helpful in rooting out underlying problems that are not caught until an egregious mistake is made that leads to injury. Certain doctors who pose too great a risk to patients must not be allowed to practice, and lawsuits are one of the few ways where those doctors are often held accountable. For example, doctors who have substance abuse problems may pose tremendous risks to patients. In fact, new survey results posted by Health Day suggests that, in some medical fields, the substance abuse problem may be particularly high.

A new poll found that a shocking 15% of surgeons may have alcohol dependency problems. That is almost double the 8% rate seen nationally among all adults. The results of the poll were published in the February issue of Archives of Surgery. However, those discussing the case suggest that the actual rate of patient harm caused by the impairment is very rare. The doctors claimed that the patient injury due to chemical impairment may occur as little as one in every 10,000 patients. The veracity of that statistics cannot be confirmed, but it is true that blatant cases of errors caused by impaired doctors are not often made public.

That does not mean that this survey result is not without any benefit. One surgeon remarked, “the finding do beg the question as to why it is that every other safety-sensitive profession has random drug screenings, while surgeons do not.” He went on to buck the trends of others in his profession by noting, “Although it may not be a popular statement there’s no reason other interventionists involved in high-risk practice should not be tested. “

Our Illinois medical malpractice lawyers were not surprised to find out that those doctors with apparent substance abuse issues were more likely to have committed a major medical mistake over the past three months. This may not necessary be caused by the abuse itself but by the joint factors of depression, exhaustion or burn out which may independently cause both the errors and substance abuse issues.

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February 22, 2012

Misfiled Prescriptions at Walgreens Leads to Wrongful Death Lawsuit

A new article in the Courtier-Journal discussed a unique lawsuit filed against the mega-chain Walgreens for a botched prescription. Each Chicago medical malpractice lawyer at our firm knows that medication errors are some of the most dangerous mistakes that healthcare professionals can make. Serious injury and even death can result when medication errors are made. The risks are actually highest for those who are most vulnerable health-wise—infants and the elderly. However, everyone can face problems if the wrong medication or too much medication is taken.

This latest wrongful death lawsuit was filed by one elderly woman’s estate which claims that she died as a result of getting the wrong prescription at Walgreens. The suit was filed last week alleging that the victim went to get high blood pressure medication. However, Walgreens officials did not give her the medication. Instead, she received an antihistamine—Hydroxyzine. The woman had a history of health problems, including congestive heart failure and kidney failure in addition to the high blood pressure.

Hydroxyzine, which the woman was mistakenly given, is actually a high-risk medication for seniors. It has previously been documented to cause confusion and oversedation. Besides giving the woman the wrong medication, the lawsuit states that the pharmacy staff did not conduct basic counseling regarding the medication. Had that counseling been given at the time of the pick-up the pharmacist would have caught the error.

The senior took the wrong medication for two weeks before the problem was noticed. During the time her hypertension went untreated. Shortly after the mistake was caught the woman became ill. She died after a short hospitalization.

The lawsuit names those working at the time of the mistake as well as the national Walgreens Corporation which is responsible for the conduct of employees on duty. As in similar cases, the family is seeking accountability for the egregious mistake. It is vital that information be uncovered to figure out exactly how such an error could have gone unnoticed for so long.

All drugs present risks. Having a foreign substance put into the body must be done delicately at all times. This is particularly true of prescription drugs or medicine administered at hospitals. Many of these substances are restricted from open use specifically because of the dangers they present when used incorrectly. There is simply no room for error with these medications. Systems have to be in place which catches these lapses. Even a single mistake, as this case demonstrates, can lead to death. That is why our Chicago medical malpractice lawyers urge all local residents to pay close attention to all medication that they take—even when given by qualified professionals. Mistakes happen, and vigilance is required to catch those mistakes before they cause harm.

However, if you or a loved one has actually been harmed because of a medication error—either at a hospital, via prescription, or some other situation—you must remember that you have legal rights. Be sure to contact a medical malpractice lawyer whenever you are in this situation to learn how the law applies in your case and what can be done to ensure that similar mistakes are not made in the future.

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February 21, 2012

Medical Malpractice Lawsuit For Emotional Distress Without Physical Harm

Each individual case of Illinois medical malpractice presents a range of unique legal issues. In most cases, medical malpractice is essentially rooted in the civil claim for negligence—alleging that another community member did not act reasonably which caused their harm. In a general sense, this is the same whether the negligent party is a doctor, nurse, taxi driver, construction worker, or anyone else. Yet, when medical errors are involved there are often a few legal complications involved that are not present in other negligence situations—like expert witnesses—but the basic legal principles are the same.

However, as a new story in Medical Daily explains, depending on the unique situation, legal claims beyond negligence may be implicated following poor medical care. For example, the story discusses the rare situation where a suit is filed against a doctor for emotional distress, even where there is no physical harm. Each Chicago medical malpractice lawyer at our firm was interested to read about the case which involves a mother who sued her doctor for failing to prepare her for the mental and emotional shock of her newborn’s birth deformities.

In this particular case the mother filed the suit against her doctor in 2005, claiming both negligence and intentional infliction of emotional distress. The doctor performed an ultrasound on the child and told the mother that the results were normal without any abnormalities. However, when the child was actually born he had a range of deformities. The baby did not have arms below the elbows or legs below the knees. He had an accessory tongue, delayed jaw growth, an umbilical hernia, and a ventral curvature of the penis. The effect of seeing her son for the first time without any warning about his unique disabilities threw the mother into shock. She explains that she suffered from severe emotional and mental distress in the aftermath of the birth.

The defense lawyers challenged the emotional distress claims, because it was unclear if the law allowed patients to file suit for purely emotional harm. However, an appellate court ruling in the state just affirmed the patient’s right. The attorney representing the plaintiff explained that the opinion was consistent with other rulings. In addition, he summarized that “where the specific professional responsibility of an attending physician is to convey accurate information, then failure to do so can give rise to liability if the physician’s breach results in unusual and extreme emotional distress on the part of the plaintiff.”

It is unclear how this latest appellate court ruling will affect future cases in the state against doctors. The law surrounding medical malpractice changes over time as societies adapt, rulings are shifted, and the world changes. Our Illinois medical malpractice attorneys closely follow all legal trends in this area for that reason—to ensure that clients are appraised of every option in front of them. When you may have been hurt in any way by the misconduct of your medical professionals, ensure that you visit with an experienced legal professional to learn about the potential legal ramifications of your situation.

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February 20, 2012

Take A Look At Your Own Medical Chart

An editorial for Salem News last week offered an extended recommendation to readers on the importance of patients taking an active role in their care. The author explained that, while most doctors work hard to provide the best care possible to patients, the public remains woefully uninformed about the total number of preventable medical mistakes that occur each and every day. The Illinois medical malpractice lawyers at our firm echo the wise thoughts shared in the piece—an active patient can often mean the different between life and death.

The author explained that it is important to step back from the claims made by those in the medical community which seeks to minimize the total number of deaths caused by inadequate care. This is particularly true when it comes to the claims made about medical malpractice lawsuits causing doctors to leave town, go out of business, and the like. In fact, as any medical malpractice attorney can explain, doctors work primarily in business groups. These groups have insurance companies with unlimited attorney funds to defend the doctors. Even then, when a case actually does go to trial, more often than not the jury sides with the doctor. Many suspect that this is influenced by the fact that society maintains much admiration for doctors—as they should.

But the admiration often clouds the public perception about the very real problem of medical errors and lazy care. This often allows doctors to put up “protective walls” between themselves and their patients. For this reason it is incredibly important for patients to take an active role in their care—for example, by demanding to see information in their own medical chart. After a recent trip to the doctor the author of this editorial did just that. He was amazed to find that the doctor had written things which were simply not true. For example, his chart including lists of things that the patient “denied,’ such as weakness, numbness, urgency, and others. However the doctor had not actual asked the man about any of these things. Apparently the doctor made those judgments simply because the man had put “back pain” on his in-take form when asked what brought him there.

Eventually the author went to a different medical clinic to see if something could be done for his back, on which he had had previous injuries and surgeries. He explained that the doctor eventually came into his room, looked at this charts for a few minutes, said that he could not help the man, and then walked out of the room. Surprised by the bizarre behavior, the man asked for a copy of his records. What he found was that the doctor had written that he had performed a series of tests all of which were normal—even though he never so much as touched the man or asked him to do anything. For this brief ten minute meeting Medicare was charged $300.

Of course, in any subsequent legal action that might take place down the road if the doctor makes a mistake, these forms will likely be used. If the doctor fails to make an appropriate diagnosis that he should have made, the professional will likely use these “denials” or test results as part of his or her defense. These are issues that medical malpractice attorneys deal with each and every day.

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February 19, 2012

Basic Medical Mistakes and Standards of Care

At the root of all Illinois medical malpractice claims are allegations that reasonable standards of care have been breach by a hospital or medical professionals which caused harm to a patient. Obviously then, determining what constitutes a reasonable standard of care is at the heart of most of these lawsuits. Before one can determine if the standard was or was not met, one must first figure out what that standard actually is.

Each Chicago medical malpractice attorney at our firm often explains to clients that proving this standard requires use of expert witnesses. Of course medicine is a very specialized field with professionals taking years of training to learn what should or should not be done in any given situation to best help the patient. Not only are they properly trained initially, but training must be on-going. As new medical research is conducted and new techniques are designed the standards about what does or does not constitute reasonable care changes. Judges and juries are not trained in these matters, and so experts must be brought in to identify what the standard is and whether or not they believe that it was breached in any give case.

This week Indox shared a list of examples of same basic standard of case lapses that can occur in the medical field. For example, trauma care is one area that may have different standards. This area of care is usually thought of as that provided in the first hour after an emergency, such as a car accident. When an injured patient is rushed to a hospital, the medical professionals are generally charged to follow principles outlined in the Advanced Trauma Life Support (ATLS) system. The system was developed by a surgeon in the late 1970s whose children were the victims of medical malpractice after they received inadequate trauma care after a small plane accident. By 1980 the American College of Surgeons Committee on Trauma adopted ATLS. It is now the standard for trauma care nationwide. When the principles it espouses are not met, then the medical professionals providing the care likely committed malpractice

Anesthesia monitoring has different basic guidelines which lay out what level of care is acceptable. In the 1980s, responding to an ABC News segment on anesthesia mistakes, the American Society of Anesthesiologists updated its standards and practices regarding patient monitoring. By 1985 that effort had transformed into the Anesthesia Patient Safety Foundation which offers information about acceptable standards in the field. If a loved one has died or suffered injury while under anesthesia there is a chance that the injury was caused by these guidelines not being followed appropriately. If this happens in our area a Chicago medical malpractice lawsuit might be appropriate.

Fatal allergy detection has its own standards. Before 2000, many medical questionnaires did not include any details asking about allergies. It wasn’t until a landmark Institute of Medicine report on patient safety in 1999 that the use of the questions became common practice. Now many facilities have strategies in place to prevent communication breakdowns which might allow a patient to be given something to which he or she was allergic. Failure to abide by those standards is a preventable error that often results in legal liability.

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February 18, 2012

Dealing with Medical Providers Who Don’t Submit Medical Bills

Many of our fellow Illinois medical malpractice attorneys have confronted a new challenge when trying to actually obtaining funds following a settlement for those families that they represent. As we have often explained, actually securing a settlement or a successful verdict is often only 50% of the battle. In some cases it may only represent 25% of the battle. That is because there are many complex issues that affect the collection process following a settlement or verdict.

Often the defendant themselves seek to stall, hide assets, or shift blame in order to make collection difficult. This is often the case when complex corporate structures are involved, each of which tries to shield itself from liability. However, often the collection problem can be made much worse by third parties—like hospitals and insurance companies.

Every Illinois personal injury attorney likely understands the role the medical bills play in client’s recovery. For example, if someone is injured in a car accident caused by another, they may reach a settlement with the other party (usually their insurance company) to pay for the damage (personal and property) caused by the accident. In a typical case, a hospital will submit bills to the injured party’s health insurance company, allowing insurance companies to pay those bills. However, hospitals offer steep discounts to those insurance companies. When the hospital suspects that a patient may receive a tort settlement, they often refuse to submit the bills which include the steep discount. Instead, they try to place a lien on the settlement itself. You can bet that the lien amount is much higher than what would be submitted in a bill.

However, in many cases there is more benefit for the client by having a bill paid by their insurance carrier and not out of their possible tort recovery. In these cases, it is important for the injury attorney to figure out ways to get the hospital to actual submit the bills to the insurance provider for payment. This month an article in the Tort Trends newsletter from the Illinois State Bar Association discussed the issue. The author, Dennis Berkbigler, offered a strategy for attorneys in this situation. We recommend taking a look at the piece get more information on how you might be able to work through these situations in your case.

The articles includes a sample letter that attorneys should consider using as a template when dealing with hospitals in these situations. The sample letter offers several arguments to make. For one, under the Illinois lien statute which allows the hospitals to take this approach, the total of all liens cannot exceed 40% (and no individual category can exceed 33%). Therefore, if multiple parties have liens, the hospital may actually receive less than they would by submitting the bills to the insurance company. In addition, the patient is a third-party beneficiary of the contract between the hospital and the insurance company for the discounted rates. As such the client-patient may be able to sue to enforce that contract (and the discounted rates). Finally, a tortuous interference charge may even be filed against the hospital for damaging the client’s agreement with his health insurance provider.

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February 17, 2012

Court Considering Trial to Challenge Excessive Hospital Bills

The News-Record published a new story this week about a unique case involving excessive hospital bills. The main issue is whether patients should be able to take hospitals to court to demand that they justify their charges. The issue seems to be a matter of basic fairness in forcing hospitals to at least explain how they arrive at the charges that they cite, particularly in cases where the charge seems incredibly high. While not an issues of medical malpractice, it is still relevant to many who have been victimized by the confusing medical billing process.

The case was brought by a man who was shocked to find out that he owed $20,000 for a three day stay at a local hospital. He was further amazed to learn that the facility charged him a staggering 2400% more for medication that he could pay at a nearby pharmacy for the same medication. In their defense the hospital submitted a bill into evidence, but the bill did not have itemized charges. The man leading the challenge is simply asking that the hospital be forced to explain the charges. He explained, “They [the hospital] are telling you the [they] charge $5,000 for a bed in a hospital and don’t have to tell you what the charges consist of.”

The man in this case is gallantly taking on the legal fight on his own. However, he faces stiff legal opposition as deep-pocketed medical interests are fighting to ensure that they can charge whatever they like without ever having to justify their charges. They claim that the prices are overseen by federal regulators who release “standard” rates. However, there is disagreement about whether “standard” rates are the same thing as “reasonable.”

Each Chicago medical malpractice attorney at our firm understands the way that hospitals sometimes offer exorbitant fees to patients for care. What most community members don’t know is that the price that they are charged is often based on a range of factors that are not exactly fair or logical. Hospitals usually negotiate with insurance companies for prices that will be paid for the performance of certain medical procedures. In exchange for offering lower prices, the insurance company agrees to steer their clients toward those hospitals. When public funds are used to pay for care, via Medicare or Medicaid, the reimbursement rates are even lower. Similarly, when a private citizen is paying for care (without any insurance at all), the hospital may negotiate with the individual for discounted rates.

However, as any Illinois medical malpractice lawyer will tell you, sometimes the hospital uses the patient’s potential recovery in a legal matter as a reason to charge particularly high rates. For example, if an individual is hurt in a car accident that is caused by the negligence of another driver, the injured party may file an accident lawsuit to seek compensation for the harm caused by the negligent party. Anticipating the possible award, the hospital may charge much more for the care that they provide than they otherwise might.

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February 16, 2012

U.S. Government Tries to Expand Immunity from Med Mal Lawsuits For Military Families

This month’s edition of the “Justice For All,” newsletter reported on new efforts by the U.S. government to limit the right of military family members hurt by medical malpractice. The newsletter is published by the Illinois Trial Lawyers Association.

As our Illinois medical malpractice lawyers have editorializes against, under an U.S. Supreme Court ruling from 1950, the Feres Doctrine is in place which denies active-duty servicemembers the ability to seek legal compensation for malpractice that occurs at military medical facilities. The case was essentially rooted in the claimed effect that such suits might have on battle-readiness for the troops and the service’s ability to carry out its military functions. Many legal scholars have questioned the merit of that decision and its current applicability. In fact, a legal challenge was mounted in recent years to reverse course and allow servicemembers the same rights as civilians. However, the nation’s highest court issued another ruling in the cases which essentially stopped the effort in its tracks. It does not look like members of our military will be able to use the civil just system to seek recourse for medical malpractice for the foreseeable future.

However, perhaps emboldened by their victory in the most recent case, now U.S. attorneys are arguing that the legal doctrine also prevent spouses and children of servicemembers from having the ability to hold military hospitals, clinics, and doctors accountable when they are the victims of inadequate medical care that causes them harm. This argument is being brought forward by the government in its defense in a tragic case out of Florida. The case involves an active-duty navy mechanic whose wife visited a military medical clinic complaining of problems. The clinic failed to diagnose her with what turned out to be a fatal cerebral hemorrhage. The wife died, and the husband brought a medical malpractice lawsuit seeking accountability for the harm to his wife.

Government officials are claiming that the Feres doctrine limits the active-duty servicemember from filing suit even for negligent care that his family received. Each Illinois medical malpractice lawyer at our firm knows that in the past federal lawyers have settled many cases where negligent care led to the death of a military family member. That means that this latest tactic is a new approach to these cases, one that might have serious implications for military families down the road.

This may very well be a concerted effort by those involved to even further marginalize military families receiving inadequate care, even in the most heartbreaking circumstances. For example, the same judge that is hearing the case from the Navy mechanic is also hearing a case involving the death of a newborn whose parents are both active duty Navy personnel. A suit filed by the family claims that the child died as a result of mistakes made during his birth. However, federal attorneys are arguing that the birth was “incident” to the parents work as members of the military. The lawyers are claiming that therefore the claim is barred under the Feres doctrine.

See Our Related Blog Posts:

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February 15, 2012

Hospital Blamed for Death from Legionnaires Disease

The Dayton Daily News reported late last week on a new medical malpractice lawsuit that has been filed against a hospital. According to the report, several families are claiming that the facility was negligent in allowing the deadly disease to spread at the facility. It represents a unique case of general hospital errors that exposed nearly a dozen patients to the potentially deadly problem.

This is the first medical malpractice suit that has been filed stemming from an outbreak of Legionella at the hospital last February. Legionella causes a disease known as Legionellosis disease. It is sometimes referred to as “Legion Fever” and often causes infection, high fever, and potentially deadly pneumonia. The disease first attracted widespread notice when it over 300 people contracted it during a bicentennial celebration in 1776 at an American Legion hall. Thirty four people ultimately died from that first outbreak. Fortunately, the disease did not lead to widespread contamination after that initial event.

However, as this case demonstrates, when not properly controlled, the bacteria can wreck havoc in places like hospitals. According to the report, last year at least eleven people were infected by Legionella at the facility. This was the largest outbreak since 2004 when thirteen patients at an Ohio worksite contracted the disease Of the eleven patients exposed to the bacteria last year, at least three have died and many others have been injured. In fact, the lawsuit claims that while there are eleven known cases of contraction, as many as one hundred and thirty five different patients may actually have been harmed by the Legionella problem.

This latest medical malpractice suit was filed on behalf of several victims, including three that died as a result of the outbreak. The death certificate of one of the patients, a 94-year old man, listed death specifically as caused by Legionella pneumonia. The other two death certificates do not specifically mention the disease, but medical records (and an oral admission by a hospital attorney) confirm that they did have the condition. A patient who survived the outbreak is also represented. According to court documents the woman was not unscathed by the Legionnaires outbreak but instead “suffered a significant loss of lung function, other health hazards and emotional distress as a result of contracting Legionnaires’ disease.”

The lawsuit names various hospital officials as well as a construction company as a defendant. Apparently, the outbreak occurred in a new wing of the hospital that had just been opened. The bacteria likely colonized while the individual parts which were used in the construction sat in a nearby warehouse for months at a time. The building was constructed using a “prefabricated” method. Beyond the patients, many visitors and employees may also have been exposed to the problem.

Our Illinois medical malpractice lawyers are disappointed but not surprised by this latest case of mass outbreak at a hospital. Blog readers have likely read about the prevalence of hospital acquired infections. These represent particularly damaging forms of hospital errors. When proper sanitation measures are carried out, these infections should never occur. Yet, those proper measures are often short-tracked, opening the door for potentially deadly outbreaks that can wreak real havoc on those already vulnerable medical patients at the facility.

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February 14, 2012

$15 Million Medical Malpractice Verdict in Failure to Diagnose Breast Cancer Case

Bradenton Herald reported last week on the culmination of a medical malpractice lawsuit filed by a breast cancer victim against a negligent medical facility. The plaintiff went to visit the clinic—which focused exclusively on breast cancer treatment—because she felt a lump on her breast. A mammogram was taken which was examined by a doctor at the facility. However, the doctor failed to see any abnormalities. The doctor did not recommend that a simple sonography be take in the area where the lump was felt. The woman was told that everything was fine.

It wasn’t fine.

In reality the woman, a mother of three children all under ten years old, had breast cancer. By the time the cancer was actually diagnosed, 16 months later, the cancer had spread to her lymph nodes and bones.

The woman field a medical malpractice lawsuit and the case just recently went to trial. At the trial the plaintiff’s medical malpractice attorney offered testimony from several expert witnesses who explained what steps should have been taken by the medical facility which would have led to the cancer being caught earlier. An oncologist also testified as to the degree to which her prognosis was compromised as a result of the 16 month delay in treatment and spreading of the cancer. After a three week trial and a day of deliberations, the jury reached a unanimous verdict in favor of the plaintiff. They found the clinic to be negligent in its actions which caused substantial harm to the plaintiff. She was awarded $15 million. It remains unclear if the clinic will try to appeal the decision.

“Failure to diagnose” cases are perhaps most common where cancer is involved. That is because cancer prognoses are heavily dependent on when treatment is provided. Cancer is a bodily invader that, given time, spreads to different parts of the body and causes a range of problems. When caught early, doctors have a better chance of extracting the cancer and potentially offering a full cure. However, the longer delay the more the cancer is allowed to spread. The spreading of the cancer makes it much more difficult for the doctors to completely extract. The difference for the patient is incalculable—often determining life and death.

Our Illinois medical malpractice attorneys have helped many local families in this exact situation. It remains sad that community members are forced to deal with long cancer odds that could have been prevented. Medical experts are in a unique position of power when it comes to the well-being of residents. Patients rightly rely heavily on the recommendations and decisions of their medical providers. If one goes in to get information about a concern, the doctor’s assessment is trusted. When that assessment is wrong and caused by negligent care then the patient has a right to legal recourse if the failure to diagnose caused them harm. It is important to remember that an incorrect diagnosis is not automatically grounds for a lawsuit. Instead it is when the diagnoses is wrong because of incomplete evaluation that the law might play a role in providing relief for the victim and their family.

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February 13, 2012

Crucial Information Lost As Fewer Autopsies Performed

The most widely quoted statistic on medical malpractice comes from a Center for Disease and Control report. In a landmark study the group found that over 90,000 patients die in the country every single year because of preventable medical errors. This stat understandably shocks most who hear it for the first time. Our Illinois medical malpractice lawyers know that most residents appreciate that mistakes happen, but they do not truly understand how widespread the problem is in some locations and situations.

There is always some disbelief when people first hear that statistic. If the problem truly were that bad we would hear more about it, wouldn’t we? Unfortunately, a lot less is heard about this problem because many cases of mistreatment or accidental death are never actually brought to light. Many patients pass away because of preventable medical errors without their family ever knowing for sure what happened to them. In this way the problem is able to stay below the surface. Comprehensive studies pinpoint the scope of the issue but individual families remain mostly in the dark about the overall level of care that their loved one received.

Part of the problem, according to a new NPR report, is that there are far fewer autopsies performed these days than in the past. In the past, these autopsies—known as “medical audits”—were commonplace occurrences that helped medical providers learn about causes and death and make potential corrections down the road. Not all that long ago autopsies were routinely performed on at least half of all patients who died in hospitals.

No longer.

The best available evidence suggests that less than five percent of all those who die in hospitals have an autopsy performed. Many experts believe the steep decline is a troubling trend. The main problem is that without an autopsy, causes of death on death certificates are often inaccurate. These inaccuracies have ramifications—distorting crucial nationwide databases. Studies show that diagnostic errors are made in about 20 to 25% of cases. However, those errors are often never uncovered when a patient dies without an autopsy. The mistake is usually buried with them, forgotten, and not used as a learning experience to prevent future medical errors.

For example, the article shares the story of one woman who died suddenly at the age of sixty four. The woman was a college professor and cancer researcher. It was only thanks to the generosity of her colleagues that an autopsy was paid for and conducted after her passing. The procedure revealed that the woman’s body was riddled with cancer that she had previously known nothing about. Her husband explained, “Not knowing, to me, has always been worse than knowing the truth, and we know the truth…as the result of an autopsy.”

Honest information about medical care and death is vital to providing families with closure and helping medical providers make corrections for the future. Each Chicago medical malpractice attorney at our firm believes in the power of clear and honest information being collected and provided about the medical process. These principles cannot be forgotten by those in a position to make decisions about death investigations across the country.

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February 12, 2012

Arbitration Agreements Popping Up in Some Medical Cases

A host of tricks exist to take away the right of negligence victims. Large companies and multi-billion dollar conglomerates, from hospitals and nursing homes to pharmaceutical companies, have spent hundreds of millions of dollars on experts to figure out ways to insulate themselves from paying for the consequences of their actions. The Illinois medical malpractice lawyers at our firm frequently discuss the legislative efforts on this front—usually wrapped up in the guise of “tort reform.”

However, legislation is not the only way that these entities seek to take away rights. They also try to ask patients and residents to sign away their rights voluntarily.

All readers have experienced this first-hand: it is the stack of papers that you are forced to sign whenever you do anything from being admitted to a hospital to buying a new cell phone. Often hidden in that stack are clauses which indicate steps that must be taken if the consumer has a dispute with the company with which that they are dealing. Most consumers have no idea what they are signing away and little option but to sign anyway. One of the most common clauses hidden in those stacks of papers are “forced arbitration clauses.” These essentially require all disputes to go through a process called “arbitration” instead of going through the regular court system with a judge and jury.

I’m sure it comes as a surprise to no one that these arbitration proceedings usually end up worse for victims. There is a reason that these large companies want to go to arbitration instead of the regular court system—it is in their own financial interest. When these arbitration requirements occur in the medical context, each Chicago medical malpractice attorney at our firm knows that there are real consequences for those involved.

A Huffington Post article this week touched on the ways that doctors are using these arbitration agreements to avoid facing the decisions of a judge or jury. They’d much rather face the decision of hand-picked arbiter. The story noted that the arbitration agreements are now showing up in all kinds of transactions where they otherwise were never before found, including things like cosmetic surgery operations.

In some cases it might be logical to use arbitration. When there is purely a commercial transaction involved—like with credit card companies or common-carriers. For example, instead of having to file a lawsuit when you have a dispute with FedEx about package delivery, it might be logical to use an alternative system. However, there is a big difference between signing a contract to send a package and signing a contract to receive life-saving medical care or absolutely essential long-term care. Those are not purely commercial situations. When medical malpractice occurs—often with incredibly serious consequences—it is not logical or fair to use some alternative systems. These are exactly the situations when victims should have their rights to a jury and judge preserved. Yet, our medical malpractice lawyers have been surprised to see these agreements popping up in a more cases involving medical professionals. All consumers should remain on the look-out for these situations and do whatever possible to avoid all mandatory arbitration agreements.

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Arbitration Agreements Continue to Unfairly Limit Rights of Nursing Home Neglect Victims

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February 11, 2012

Medical Malpractice Complaints Against Neurosurgeon Not Listed On State Website

Our Illinois medical malpractice lawyers have recently posted a few stories discussing the importance of allowing the public access to their doctor’s history. In our state, the “Patients Right to Know” Act allowed community members access to information about their medical care providers, such as their educational background, areas of specialty, and details about Illinois medical malpractice awards against them. Health is one’s most prized asset. Having available information about the individuals (and institutions) that you trust with your health seems like a logical, common-sense step that governments can take to improve the well-being of citizens.

However, as we noted, the residents of some states still do not have access to this information. Certain medical boards continue to engage in fights to keep the information hidden from consumers. It is yet another unfortunate example where the medical lobby is working to put their own interests ahead of their patients. These sorts of political maneuverings unfairly paint the industry with a tarnished brush and skew the perception of most medical professionals who are hardworking, honest, experts working to improve the lives of those around them.

Even when laws are passed allowing the publication of database about medical professionals, patient rights advocates still have some concerns. Most notably, the database is of no value if the information on it is inaccurate or incomplete. Creating the online space is a great start, but the body in charge of maintaining the space cannot stop there. Failing to update it appropriately is like having a blog without putting any posts up—worthless.

Yet, incomplete maintenance of these medical review sites seems to be occurring in some places. The Duluth News Tribune, for example, reported this week on an investigation which found that some complaints of medical malpractice were not listed on the state or federal website databases. In particular, the newspaper requested information about complaints made against a particular neurosurgeon. The state medical board denied the request. The newspaper knew from earlier interviews that the doctor had faced at least nine medical malpractice suits, seven of which resulted in a settlement. Surprisingly some of these complaints and settlements are not listed in any form on available state or federal database.

For example, in one a case a former patient—herself a 4th year medical student at the time—went to the doctor for what was supposed to be a routine procedure to correct carpal tunnel syndrome. Things did not go well. Instead of fixing her problem the doctor removed a piece of nerve in her right wrist. As a result she has been left permanently disabled. Those researching the doctor would not find this case listed on the website

Each Illinois medical malpractice lawyer at our firm will be sure to keep an eye on our own medical database. Failure to properly include instances of medical malpractice on the website would severely curtail the benefit that it offers to consumers. All local community members who suspect that there is inaccurate or missing information should contact the Illinois Department of Financial and Professional Regulation which runs the board to share your concerns.

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February 10, 2012

State Probes Into Hospital Errors Uncommon

Concerns about the proper vetting of medical malpractice and negligent physicians by state medical boards continues to be a hot topic nationwide. Our Illinois medical malpractice lawyers consider this increased awareness to be a good thing. With so much media attention focused on taking rights away from those hurt by medical errors, it is important to return the focus on the underlying issue that matters most: How do we make sure our hospitals and medical centers are as safe as possible?

For many the answer to that question, in part, goes back to actions taken by state oversight bodies to monitor qualifications and conduct of individual professionals and medical institutions. Patients have come to expect that the state will work to ensure that those not properly qualified to practice medicine will not be allowed to do so. Similarly, it is assumed that the state has standards that must be met by hospitals. If those standards are not met or if facilities have repeated instances of misconduct that harms patients, it is hoped that the facility will not be allowed to continue seeing patients.

But is this how it actually works?

An investigation by the Connecticut Health I-Team suggests that, at least in that state, the oversight function is severely hampered. The investigation found that instances of blatant medical negligence, like wrong-site surgeries and the development of bed sores, have actually increased in the last five years. This was the case even though there seemed to be an increase in resources attempting to tackle these problems. If reducing the instances of these problems were of paramount concern for state officials, one would assume that action to curb the seemingly growing problem would be taken. That action hasn’t been taken.

In fact, analysis of the situation found that state investigations are incredibly rare following adverse events like patient falls, clear surgical errors, and similar mistakes. Even looking at only the most clear-cut cases of misconduct, only one or two incidents in ten receives any attention from state officials. Not only that, but this data only includes self-reports of errors from hospitals. Studies into the validity of self-reports have found, expectedly, that they drastically underestimate the total errors committed by facilities.

Perhaps the most shocking finding in this particular effort was the fact that the investigation rates of these self-reported errors actually dropped considerably over the last five years. The total investigation rate fell from 27% in 2007 to less than 20% today. The fall in regards to certain areas was even starker. For example, in 2007 the investigation rates for patients who had developed pressure ulcers was at 36%. Five years later the investigation rate is now 8%. That means that even when the hospital admits errors occurred, in only the rarest of cases do state investigators do anything about it.

The Illinois medical malpractice lawyers at our firm are not surprised by these findings. We have long known that the civil justice system is one of the few places when many of these negligent facilities are ever held accountable for errors. This accountability is crucial, not only to provide redress for victims, but to spur changes at the facilities that might improve safety and prevent future harm.

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New Data Reveals Prevalence of Hospital Errors

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February 9, 2012

No Accountability: Doctors Who Face No Penalty For Errors

This week the Star Tribune followed up its report on minimal publication of doctor histories, with a new analysis on doctor sanctions. The report suggests that penalties are usually few and far between for those medical professionals who breach standards of care. It is yet another reminder for our Illinois medical malpractice lawyers that many negligent medical professionals would have no accountability at all were it not for patients and their families stepping up and demanding it themselves.

There is a mistaken assumption among some that blatant medical errors are accounted for by state medical boards or other oversight bodies. Unfortunately, that is not the case at all. For example, take the case of one doctor discussed in the Star Tribune report. A medical malpractice attorney who actually defended doctors in these cases filed her own lawsuit against a physician after a botched facial cleanse. The procedure was incredibly painful and the next day her face was swollen with wounds that bled. Eventually, the woman received a $1 million medical malpractice verdict against the dermatologist for his conduct.

As part of the situation, she had also urged the state’s board of medical practice to take disciplinary action against the man for the botched facial peel. The attorney found at least five other patients who were also harmed by the man’s care. She took that information a second time to the medical board in hopes of getting action. Considering there had been repeated victims, it would have been logical for the board to want to ensure that the doctor was not repeatedly negligent and allowed to harm future patients. Surprisingly, the board did nothing. The woman has yet to be contacted and interviewed by those charged with holding these doctors to a reasonable standard and keeping unsuspecting patients safe.

The case of this physician is apparently not unique. A journalistic investigation found that the state’s medical board frequently avoids investigating doctors even after repeated claims are made against them by patients harmed by their actions. The analysis revealed at least 46 cases of doctors who were not punished in any way by the state, even though those same doctors lost their licenses in other states. The cases included physicians that had committed crimes and even had inappropriate sexual relationships with patients.

This lack of discipline is compounded by the fact that the state’s board has been criticized for not keeping the public informed about dangerous practitioners. As each Illinois medical malpractice lawyer at our firm knows, sunshine is always the best policy when it comes to quality of care. Yet, many parts of the country still do not provide the public with information about patient’s medical malpractice awards and sanctions.

Members of the state’s medical board have defended the decisions, claiming that they believe the public is adequately protected. However, patient safety experts think otherwise. Many have argued that the state is not doing nearly enough to keep patients safe. These advocates find the failure to sanction doctors who have been disciplined in other states to be very alarming. They note that in the end, it remains even more important for patients themselves to demand redress and accountability when errors are made.

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Federal Malpractice Data Back Online, But With Restrictions

Federal Medical Malpractice Database Taken Down

February 8, 2012

High Costs Make it Difficult for Some Medical Malpractice Claims to Go to Trial

Each Illinois medical malpractice lawyer at our firm has heard the argument that high costs affect doctors who are forced to defend lawsuit when they make a medical error. This claim is usually made when trying to push for so-called “tort reform” proposals that insulate doctors from having to be held fully accountable for the errors that they caused patients. However, those same advocates will almost never admit or explain that the costs of the legal process are also bore by plaintiffs when trying to hold their wrongdoer accountable. For example, a story in Eastern Iowa News last week touched on the way that litigation costs prevent those with legitimate claims from accessing the legal system. Not only that, but the costs problem is often made worse by those mandating more arbitrary requirements and costs in tort reform efforts.

The problem most affects those who have claims that are not worth hundreds of thousands of dollars but less, often $25,000 to $50,000. While large lawsuit settlements and verdicts make headlines, the vast majority of cases involve sums that are much smaller. But the smaller sums sometimes make it cost prohibitive to pursue litigation, because the cost of the litigation can eat up the entire award. As the story explained, many attorneys, including Illinois medical malpractice lawyers, “are frustrated because people are being denied access to a jury trial, their constitutional right, because they can’t afford the costs for witness fees, exhibits, discovery, depositions, and a court reporter.

The problem affects all negligence cases, but medical malpractice situations are implicated most. That is because the challenge of proving misconduct in a complex field like medicine requires costly experts and other detailed requirements. If one’s case involves sums of money that are not large enough to justify paying those costs, then the victim is essentially denied access to justice. This is particularly frustrating because, while the sums involved may not be lottery riches, they are still incredibly significant for the actual individuals who were harmed.

Considering the barriers already in the way of plaintiffs, it is quite frustrating (and imminently unreasonable) for those calling for tort-reform to put up even more requirements for victims before they can access the judge and jury. These proposals should not be entertained.

Each Chicago medical malpractice attorney at our firm instead believes that, if anything, we need to look at general ways to make the court system more efficient and affordable. That is the opposite of throwing up arbitrary rules that make it harder for all injury victims to access the court system. Those involved in the court system from all sides have proposed a wide range of ideas that improve the justice system without unfairly burdening either side in the process. For example, one idea is to allow doctor’s reports to be read into evidence without their presence in court—potentially saving thousands of dollars. However, right now that is not allowed because of hearsay evidentiary rules. All options like that one should be considered in order to improve the system for all in ways that preserve fairness for all.

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February 7, 2012

New Memo Purports to Reveal Presidential Thoughts on Medical Malpractice

Each Chicago medical malpractice attorney at our firm keeps an ear out for information about proposed state and federal legislation which might impact Illinois medical malpractice victims. Every year those who stand to financially gain from taking legal rights away from those hurt by medical errors mount efforts to get those rights curtailed. It is often difficult to get a clear idea of the likelihood of passage of any particular piece of legislation. That is because so many of the issues are involved in deals and compromises with competing interest groups. While a public official in a position of power has an opinion on an issue, it cannot be deemed conclusive that the individual will maintain that position. Various issues—even those that have no connection to one another—interplay to determine what does get passed and become law and what does not. For example, an official who does not necessarily believe that tort reform is a good idea might actually support it in order to get a favorable vote from an opponent on a tax issue.

The complexity of the legislative process makes it difficult to make any prognostications about future legislation with any certainty. However, that does not stop many people from trying.

For example, Med Page Today published a story this weekend discussing a memo that purports to reveal President Obama’s thinking on the issue of medical malpractice. While the memo may have some insight into the process, it is important not to read too much into any single document or statement about what the future might hold regarding these issues.

The memo explains that abut two and half years ago the President was of the opinion that the best approach to the issue was having physicians disclose when errors occur, issue an apology, and pursue mediation. The memo suggests that he valued this approach because he thought it would best compliment his bigger goal of getting the healthcare bill passed.

The document, prepared for the president by two close aides involved in issues related to healthcare, listed five different “medical liability reform options.” Beyond admitting the error and apologies, the other approaches include: safe-harbor provisions, pre-trial administrative screening panels, health courts, and alternative dispute resolution. Interestingly, the President never actually indicated public support for a disclosure and mediation approach to the issue. However, some are using this memo as evidence that this is the position he actually believes is strongest and might pursue in the future.

In the end, the President’s healthcare bill passed. As part of that package $25 million in grants was earmarked for programs to “test alternatives” to the tort system of medical liability cases.

The Illinois medical malpractice lawyers at our firm will fight night and day to oppose all efforts that unfairly, unnecessarily, and arbitrarily take away basic rights of residents to fully access their court system. We will follow along through the year as more information about federal proposals on this issue comes to light. In addition, we will provide information for all advocates on ways that they can join the effort to preserve fairness and justice for medical malpractice victims.

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February 6, 2012

Doctors Try to Block Open Information About Medical Malpractice Awards in Other States

Blog readers are aware that the Illinois’ “Patient’s Right to Know” Act became law last year. The law, supported by virtually every patient rights advocate and Illinois medical malpractice lawyer, put an online database back online to provide patients with information about the state’s medical professionals. The logic behind the bill was clear. Nothing matters more to local residents than their health. It is only reasonable for residents to have easy access to basic information about those who they are trusting with their health. The information provided includes details about the professional’s education, experience, as well as whether or not they have been involved in an Illinois medical malpractice lawsuit.

Getting this information back online was not an easy battle. The powerful Illinois medical lobby fought the measure virtually every step of the way, even though the point was only to provide patients with basic information if they chose to access it. The online database had previously been online a few years ago. It was put up in conjunction with a bill which enacted egregious “tort reform” measures that arbitrarily capped damages that victims of Illinois medical malpractice could receive from a jury—regardless of the harm caused. Fortunately, those caps were struck down a few years ago by the state Supreme Court. However, the database was taken down as well. It was only with the passage of this latest Patient’s Right to Know Act that the information was again made available to the public.

However, the Illinois medical malpractice lawyers at our firm know that these sorts of gains are never safe. That is because those opposed to openness about the healthcare process are constantly working legislatively to enact changes to take these gains away. Various tort reform efforts are still being proposed and, surely, if the political winds align, efforts will be made to take down this database again as well.

Similar battles are being raged throughout the country. For example, the Star Tribune reported yesterday on a proposal to provide similar sunshine failed in nearby Minnesota. That measure to provide basic information about medical malpractice awards and state disciplinary sanctions was rejected by the state’s medical board last week. Those advocating for the measure explained how it remains logical for patients to be able to learn if their doctor has been disciplined or lost medical privileges because of the care that they have provided. As one former board member and patients rights advocate explained, “This is information that consumers need to know. The more knowledge we have about all of these doctors, the better off we are.”

Each Chicago medical malpractice lawyer at our firm shares these concerns. In virtually all cases, sunshine is the best policy. It is difficult to understand how a community is best served by keeping true and accurate information hidden from the public about that which matters most. Those involved claim that the public would be “confused” if they were provided this information. It is similar to accusations that juries are unfit to make decisions about cases damages, experts, and the merits of lawsuits generally.

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February 5, 2012

State Supreme Court Decision Discusses “Detailed Basis” Requirement in Medical Malpractice Suit

Each Chicago medical malpractice attorney who has discussed the dangers of tort reform measures have likely explained that attacks on the system beyond damage caps. Not only are legislatures attempting to arbitrarily limit the amount of money that victims can receive—no matter how badly they are injures—but they are also working to interfere with the work of judges with regard to what evidence is or is not allowed in and how that evidence affects the overall disposition of a case.

For example, on this blog we have previously discussed various requirement regarding medical expert witnesses having the exact same background as defendant medical professionals. As we explained, while this requirement seems innocuous enough, in practice it often unfairly leads to meritorious claims being thrown out on technicalities. Of course, having these worthy cases dismissed for no good reason is exactly what those who push these efforts hope will happen. Spearheading these laws are big insurance companies and the medical lobby who have everything to gain and nothing to lose from taking away legal rights of victims of medical malpractice.

As the expert requirement situation indicates, it is almost always a bad idea for legislatures to begin meddling into individual aspects of the judicial process. These decisions are much better when left to those actually hearing the evidence and making rulings on a case-by-case basis. The justice system is very case-specific, depending on what exactly happened in each individual case. Therefore laws which set down arbitrary decisions with no information about those individual specifics are destined to be both overinclusive and underinclusive.

Another way in which some tort-reformers try to get legitimate cases thrown out of court are by passing so-called “detailed basis” statutes. These statues, like the expert doctor background requirement, are ways to make it more difficult for plaintiffs to prove that their injuries were caused by the misconduct of another—before they are even allowed to continue with the discovery part of the process. All Illinois medical malpractice lawyers (and attorneys throughout the country) are not fooled and know that a detailed basis requirement is simply another arrow in the quiver given to defense attorneys to take out a medical malpractice case before the jury is allowed to decide on the merit. These requirements are vague, but mandate that medical malpractice cases not advance if the medical expert who provides information about the misconduct in the very earliest stage of the case does not have a sufficient “detailed basis” for the opinion.

Fortunately, some state judges are not allowing the requirement to be used to halt good cases unfairly. For example, Legal News online reported this week on a decision by the Supreme Court of Connecticut which overruled a trial court that had thrown a case out because it did not meet this vague requirement. The court explained reasonably that these medical opinion reports are obtained very early on in the process, before much information has been collected by sides. The majority noted “the opinion necessarily is obtained prior to the commencement of the action, before the plaintiff will have had the opportunity to engage in pretrial discovery under the rules of practice governing such discovery.”

See Our Related Blog Posts:

State Court Throws Out Medical Expert Testimony Limitation in “Tort Reform” Law

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February 4, 2012

National Media Discusses Hypocrisy of Senator Santorum’ s Medical Malpractice Tort Reform Stance

The Illinois medical malpractice lawyers at our firm know that it is old hat to talk about hypocrisy in politics. Sadly, some believe that the culture of saying one thing and doing another is simply part of the system and that it will never change. Of course, this pessimistic view of governance might prove true. But that doesn’t mean those who care about honesty, transparency, and openness in the political process should simply give up. Each Chicago medical malpractice attorney at our firm is reminded of this every day in our work with our clients. These individuals are incredibly strong and courageous community members who deserve equal and fair access to the civil justice system. Fighting to ensure that they maintain the opportunity to seek redress and accountability will always be a battle worth pursuing.

A big component of fighting against misguided tort reform measures is exposing the politicians (and others) who say one thing about the justice system and then do another. In all political issues—including those related to medical malpractice—this hypocrisy is usually a testament to the fact that the political position the wrong one. That is clearly the case when it comes to tort reform. Many of the loudest advocates have been shown to say one thing in public—when they are trying to get the support of deep-pocketed insurance interests—and then do another when their own family is faced with the realities of medical errors or substandard care.

This week the national media picked up on one story of this hypocrisy which we discussed a few weeks ago. A story in the Washington Post explained that Republican Presidential candidate Rick Santorum, who has repeatedly argued that we need medical malpractice caps, testified in his wife’s own medical malpractice lawsuit claiming that the cap should not apply in her case.

His wife’s suit was filed against a chiropractor. She explained that the chiropractor’s mistake led her with a permanent back injury that would lead to a lifetime of pain medication and mobility problems. Mrs. Santorum had visited the chiropractor after childbirth to relieve lower back pain caused by the delivery. The family claimed that the spinal manipulation that the chiropractor performed led to a herniated disk which had to be surgically removed. In the end, the jury awarded his family damages for “pain and suffering” that he had previously argued would be “excessive”—but only if it applied to other families instead of his own.

As one local attorney familiar with the situation summarized, “Politicians complain about these kinds of claims, but when they speak out publicly, they don’t think about the real people affected by these tragic events. When they are the real person affected, suddenly they have a totally different view.”

Every Illinois medical malpractice lawyer—and every local resident—is likely tired of politicians who think the rules do not apply to them. Inequality of opportunity should never be tolerated. However, most so-called “tort reform” efforts seek only to insulate some companies from being held accountability. These special rules rigged in favor of the biggest companies should never be tolerated.

See Our Related Blog Posts:

Presidential Candidate Santorum Exemplifies Hypocrisy of Tort Reform Advocates

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February 3, 2012

Medical Malpractice Lawsuit Alleges Failure to Diagnose Child’s Condition Lead to Paralysis

This week an Illinois medical malpractice lawyer at our firm came across a story in the Madison St. Clair Record about a new Illinois medical malpractice lawsuit. According to the story, a father filed the suit on behalf of his son who suffered paralysis due to what the father believes was a medical error. More specifically, the father is alleging that the defendant doctor failed to diagnose his son with the medical condition which led to the paralysis. The delay in diagnosis apparently led to the permanent physical disability.

The son visited the doctor last year to seek treatment for an unknown medical condition. Sadly, the doctor apparently did now know what the problem was either, and his serious medical condition went undiagnosed. It was only later that it was determined that the child had cauda equine syndrome. The ailment is a medical condition that exists when the nerves in the spinal cord are unduly crushed into the bone. It is a very serious problem that requires immediate action. However, because of the failure to diagnose, the child did not receive the treatment he needed. As a result, the child is now permanently paralyzed and incontinent

Each Chicago medical malpractice lawyer at Levin & Perconti is intimately familiar with the various forms of missed diagnosis and failure to diagnose. As we have consistently noted on this blog, especially recently, diagnosis problems are some of the most common—and ultimately harmful—medical errors that can affect patients. These mistakes represent problems of the most basic variety, because figuring out what is wrong with a patient is the first step in any doctor-patient relationship. If a medical professional gets the diagnosis wrong, then everything that comes afterwards is often for naught. In addition, correcting this error usually takes time. Other doctors are often influenced by the assessment of previous medical professionals and so the problem is rarely corrected until further complications develop and it becomes blindly clear that a former diagnosis was incorrect.

Our Chicago medical malpractice lawyers also know that it is frequently difficult for patients to determine conclusively if they have been hurt by a missed or delayed diagnosis. Some medical errors are obvious, like surgery being performed on the wrong body part or a lethal dose of medication erroneously been administered. Yet, these problems are different, because patients are naturally inclined to trust the decision and assessments made by their medical professionals in diagnosis matters. Failure to diagnose cases are all about timing—time lost to receive treatment before it gets worse. Patients do not have the expertise to know if certain delays actually lead to decreased chance of survival. Similarly, patients do not know for sure if the previous incorrect diagnoses were reasonable to make or if medical carelessness contributed to the problem. That is why if you find yourself in this situation it is always prudent to at least talk with a legal professional to share your story and learn how the law applies. There is no harm is learning more, but there is harm in keeping your consternation silent and allowing things to progress without redress or accountability.

See Our Related Blog Posts:

Kane County Man Wins Verdict Following Paralysis

Doctor Sued for Malpractice with Failed Diagnosis Leading to Blindness

February 2, 2012

Insurance Industry Accused of Maximizing Profits with Lowball Claims Payments

Each Chicago medical malpractice attorney at our firm is used to defending our work against tort reform efforts. We continue to strongly believe that these efforts are universally misguided and are lead by a few small corporate interests that have much to gain by limiting the rights of everyday community members. It is not often than a single resident—no matter how rich or famous—can demand fairness and redress from even the largest corporate interests. In fact, it is only in the courtroom where the scales are equal and there is no benefit to being well-known or having deep-pockets. It is absolutely vital that this level playing field not be tampered with, no matter what the costs.

However, insurance companies in particular are on a continued crusade to take away the rights of so many Illinois medical malpractice victims. It is led by a drive to increase profits. As most blog leaders likely know from personal experience, many insurance companies do everything they can to avoid making payouts. This is true no matter how legitimate the claim might be. In fact, sometimes the companies are held to task for their stalling efforts and decisions which seek to unfairly hurt those who have come to count on them.

For example new allegations toward that end were recently discussed in last month’s edition of “Justice For All”—the newsletter published by the Illinois Trial Lawyer’s Association. Many people are never made aware of the fact that law requires insurance companies to act in good-faith with regard to their customers. In the past, these companies were deemed “semi-pubic trusts.” This meant that they were under certain obligations to serve their clients to a high level. This allowed claims managers to have wide latitude to serve customers in a fair way based on what they saw in person.

However, that has changed over the last twenty years. Now, these companies have switched from being service-oriented to profit-oriented. Instead of giving actual employees discretion in claims based on the reality of the situation, claims are now completely computer-driven. Our Chicago medical malpractice lawyers are aware of the effect this shift has had on basic fairness for consumers. Now, these companies purposefully offer the lowest possible offers to those in need. Those customers who accepted these low claims—often having no idea that they were getting low-balled—would have their claims processed quickly. Conversely, those who did some investigating and realized that their payout would be far less than needed or fair had their claims slow-walked. Those who demanded more were forced to wait.

A former Allstate agent interviewed for a Huffington Post story on the subject explained that “the strategy was to ‘make claims so expensive and so time consuming that lawyers would start refusing to help clients.’” Injury lawyers are likely not surprised by these revelations. We have often explained how the tactics used by so many insurance companies are such that they artificially drive up costs and make the process more complicated than necessary simply to improve their bottom line. More and more community members need to be made aware of this reality. The tort reform debate is simply another part of the plan to increase the power of the insurance companies while shifting the blame to others.

See Our Related Blog Posts:

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H.R. 5 Medical Malpractice Proposals Shot Down By Committee Testimony

February 1, 2012

Kane County Man Wins Verdict Following Paralysis

An Illinois medical malpractice verdict was recently discussed in the latest edition of “Justice For All”—the monthly newsletter from the Illinois Trial Lawyers Association. The case is a tragic one, involving medical errors that left the local man a paraplegic. According to a report in the Chicago Daily Law Bulletin, the 55-year old victim’s paralysis was caused by a failure to diagnose a dangerous spinal infection.

Apparently the man was seen by a variety of doctors at the hospital. He had gone to the facility to get help after experiencing constant back pain. The patient had been playing golf and felt sharp pain between his shoulder blades. The pain only grew worse and then began radiating into his chest. The preliminary diagnosis upon his being admitted to the hospital was chest pain. Then, awhile later, he was diagnosed as having pneumonia. The errors only continued. A doctor ordered a CT scan for the man’s thorax and abdomen. However, for unknown reasons, the nurse actually wrote down a test for chest pain. That triggered the order for a radiology technician.

Amazingly, it wasn’t for another twenty days (and six doctors) later that the man was correctly diagnosed with having a spinal infection. However, by that time serious damage had already been done, because the infection had gone untreated for nearly three weeks. The man was soon permanently paralyzed.

After the ordeal the man met with an Illinois medical malpractice lawyer to share his story. After learning more about the situation and exactly what happened, an Illinois medical malpractice lawsuit was then filed to hold the negligent parties accountable and provide redress. Late last year the case finally went to trial. After hearing the evidence the jury ruled in favor of the plaintiff. They found the hospital and a group of doctors involved liable for the series of errors committed during the man’s ordeal. He was awarded $4.75 million. It remains unclear if an appeal is pending.

This case demonstrates something that our Illinois medical malpractice attorneys have seen time and again through the years. Once an incorrect diagnosis is made originally, it is often difficult for subsequent medical professionals to correct the error. Ensuring proper steps are taken to identify a medical problem initially is crucial. Treatments are based off an initial diagnosis, and so that treatment process often muddies the water, making it difficult to see that the diagnosis was incorrect. Usually it is only after one’s condition gets worse that doctors step back and determine if the initial diagnosis was incorrect. Unfortunately, by that time, severe, permanent damage may already have been done.

When the initial misdiagnosis is caused by doctors who do not act according to reasonable standards of care, then it is often appropriate for the victim to receive redress for the complications that resulted from the error. There are always times when a failed diagnosis is a genuine mistake that even prudent doctors would have made. However, at other times, the involved professional breaches the acceptable level of care and provides aid less than what the patient is legally entitled to expect.

See Our Related Blog Posts:

Illinois Brain Injury Results in Medical Malpractice Lawsuit

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