March 31, 2012

Family of Birth Injury Victim Challenges State Cap on Non-Economic Damage Awards


In 2005 the Illinois General Assembly passed a measure that placed arbitrary caps on noneconomic damages in Illinois medical malpractice lawsuits. Five years later, in 2010, the state’s Supreme Court struck down the law for violating the separation of powers clause in the state constitution. The 2010 ruling was the third in a series of medical malpractice cap laws that had been found to violate the commands of the state constitution. The court last struck down a similar law in 1997. Our Illinois medical malpractice lawyers applauded the decisions as important rulings that ensured the protections of basic rights for all Illinoisans.

Unfortunately, citizens in other states have not had their rights protected in similar ways. Legislators in various local governments have passed cap laws and other tort reform measures. High courts in some of those other states have upheld those laws. Of course, each state constitution is somewhat different and the perspective of judges on each state court is different, and so it is not altogether surprising that the outcomes in those court cases have varied.

In many states the legislative and legal battles around these issues are ongoing. For example, the News-Leader reported this week on a case that was argued in front of the Missouri Supreme Court this week. The case was a challenge to a Missouri law in 2005 that capped non-economic damage awards at $350,000. The specific case challenging the law is a medical malpractice lawsuit involving mistakes made during birth that caused serious injury to the child. Attorneys in the case argued that the medical team providing care during the birth failed to respond to fetal distress resulting in the child suffering permanent and debilitating brain injuries. The child suffers from cerebral palsy, will never be able to walk, and will require around-the-clock care for the rest of his life.

The jury in the case found for the plaintiff and awarded $1.45 million in non-economic damages. Because of the arbitrary law, the family did not receive most of the award. The family has appealed the reduction of the damages on the grounds that reducing the award issued by a jury violates the family’s right to a trial by jury—which is guaranteed in the state’s constitution. In addition, some legal experts involved in the case suggest that the law violates the state’s equal protection clause, because it provides special legal rights to medical care providers that are not given to other civil defendants.

The rights medical patients throughout the country need to be defended—that includes protecting the right to receive legal awards handed down by a jury. Our Chicago medical malpractice attorneys appreciate that even here in Illinois the rights of patients is not permanently secure. That is because lawmakers at the federal level are attempting to pass federal legislation that would essentially overrule individual state determinations of these issues. This federal proposal (H.R. 5) was recently passed by the U.S. House of Representatives and awaits action in the Senate. It remains important to voice strong opposition to each of these measures.

See Our Related Blog Posts:

Person Injury Lawsuit Alleges Negligence By Hospital in Bad Diagnosis

Former Tort Reform Advocate Realizes the Harm from Damage Caps

March 30, 2012

FDA Targets “Alarm Fatigue” in Hospitals


Alarm fatigue is a growing problem is hospital across the country. Many community members have likely not heard of the issue before. Alarm fatigue refers to the desensitization of nurses, doctors, and assistants to various alarms and alerts that go off suggesting a problem with some aspect of a patient condition. Of course, alarms are intended to be warnings to caregivers to take quick action to ensure that a patient’s is not in danger. However, when those alarms are overused, going off in many instances when there is not an emergency, then caregivers can be lulled into a sense of security—failing to treat each alarm as an urgent matter. Many medical malpractice lawyers have come to calling it a problem akin to “The Boy Who Cried Wolf.”

One journalistic examination into the problem found that between 2005 and 2010, at least 216 deaths were linked to alarm problems. In those cases, medical personnel failed to react urgently to alarms, even though they indicated a patient was in trouble. Of course, many more instances may also exist that were never directly attributed to alarm fatigue.

Besides desensitization, another problem is that alarms are simply used incorrectly. For instance, there are dozens of examples where medical personnel turned down the volume on ventilators, making it impossible to hear when an alarm went off alerting an emergency. This sort of conduct is usually a clear example of medical malpractice, with potentially deadly consequences.

The Food and Drug Administration now appears to be taking steps to tackle the problem. According to a Boston Globe story, the FDA is increasing its “pre-market” oversight of medical devices that include sound alarms. The goal is to limit the amount of alarms used in hospital settings to those that actually indicate serious problems.

Apparently there are over 4,000 applications submitted to the FDA for approval every year. Many of those applications are for tools like heart and oxygen monitors. One FDA device official, Dr. William Maisel, explained his goal of blocking products from entering the market with unnecessary alarms. Dr. Maisel explained that he had particular interest in “alarms that measure various physiological functions at once.” These new devices can consolidate various alarms together and issue an alert in more targeting ways that better predict when a patient is actually in trouble.

Besides the FDA, the hospital accreditation organization is also working on solutions to the problem. The organization is currently conducting surveys of hospitals and nursing homes before developing specific recommendations to address over-alarm concerns. Last year the group drafted a “national patient safety goal on alarm management” indicating that hospitals have to address these concerns in order to remain accredited.

Each Chicago medical malpractice lawyer appreciates that the problem of alarm fatigue is a somewhat complicated issue to tackle, because in many ways it is counterintuitive. At a cursory glance, warning alarms would seem an important safety feature. It is only when examined in context of the overall hospital environment that the problem emerges. Whatever the case, it is vital that the issues be address both by federal regulators and individual hospitals. Patient safety demands nothing less.

See Our Related Blog Posts:

Potential Alarming Levels of Chicago Nurse Fatigue

Doctors Need to Disclose Sleep Fatigue Before Surgery

March 29, 2012

Child Medication Poisoning A Rising Concern


An old adage frequently used by medical malpractice lawyers is that a doctor’s first priority is “to do no harm.” Of course, each Chicago medical malpractice attorney at our firm is proud to help those who have been hurt by medical providers that did not meet that basic command to not make a patient’s situation even worse. We appreciate that there is a still a very long way to go before no patients are harmed by those who are actually supposed to make them well. From hospital acquired infections and surgical errors to delayed diagnoses and birth injuries, hundreds of thousands of medical patients are hurt each year because they did not receive the medical care to which they were entitled.

However, it is important not to overlook situations that present real risk to families that are related to medical treatment. Rising attention has been given to “medication errors” that cause serious injury or even death. As we’ve often explained, taking too much (or too little) of a potent drug has serious effects. That is true whether the mistake was made by a medical provider or the patient themselves. The young and old are most at risk. Young children and the elderly usually have particular physical vulnerabilities, and they are most likely to take incorrect dosages of medications.

When these errors are made by a medical provider, it can be an example of medical malpractice. However, more attention also needs to be paid to medication errors that are not caused by malpractice. In particular, medication poisoning is actually a growing problem, particularly for babies and young children.

A story last week from WebMD discussed the scope of the child medication poising problem. According to Safe Kids Worldwide, about 165 children under the age of five years old are rushed to the emergency room every single day as a result of unknowingly ingested dangerous pills. That amounts to 60,000 every year. Overall, in the last quarter century the percentage of poisoning deaths linked to accidental medication overdoses have nearly doubled. This is no doubt a product of the fact that there are now more medications in most homes than ever before. The more drugs increase the opportunity for young children to swallow the medicine unknowingly.

While prescription drugs might be the most potent, young children can also be hurt by over-the-counter medicines, vitamins, supplements, and herbal remedies. It is important for parents to remember that each of these pills pose risks that need to be guarded against. The WebMD article offered some helpful quick tips for families to ensure these medication errors are avoided…

--All medications should be stored in locations that are both out of sight and out of reach of young children.

--Do not refer to medicine as “candy” to children, because they may take you at your word and not realize the seriousness of taking too much.

--Ensure that guests do not leave bags, purses, or pockets with medicine open and in reach of young children.

--Child-resistant caps should be closed and kept off counters at all times.

--If possible do not take medication in front of children who may be prone to imitate adults.

Our Illinois medical malpractice lawyers have worked with many families who have been hurt by people and products that were supposed to make them well. We urge all local residents to take basic steps to ensure that important medications never result in harm to themselves or loved ones.

See Our Related Blog Posts:

Improving Healthcare Requires Identifying the Most Common Medication Errors

Illinois Nursing Homes Show Widespread Abuse of Antipsychotic Drugs

March 28, 2012

State Legislation may Roll Back Misguided “Tort Reform” Measures


News related to tort reform is usually on one of two main topics: states passing tort reform laws or courts overturning those laws. Unfortunately, in many ways due to manipulative efforts by those selling these proposals, there are far fewer developments involving legislative action to get rid of harmful tort reform laws. That is why each Illinois medical malpractice lawyer at our firm was interested to read about proposals out of Connecticut to inject a bit more fairness into that state’s justice system as it relates to medical malpractice.

The News Times reported this weekend that the state’s lawmakers are considering a proposal to get rid of unfair requirements which force those filing medical malpractice lawsuits to get opinions from certain healthcare providers beforehand that meet very specific criteria. As we’ve previously reported, the law does not allow one of these suits to be filed unless a medical opinion verifying the allegations made are filed ahead of time.

All medical malpractice lawyers would likely attest to the fact that there are several big problems with this bill that leads to meritorious claims being dismissed well before the merits of the case are even heard by a fact finder. For one thing, it is very difficult to obtain all of the records and information pertaining to a particularly case before that case is underway. Much documentation and evidence is uncovered in the “discovery” phase of a trial. Adding stringent requirement before discovery is even completed is a dangerous precedent.

In addition, these exact measures have been declared unconstitutional in many other states, because they place often daunting barriers in front of patients with fewer resources. Obtaining the required medical opinion is not free. It is often quite expensive. Forcing plaintiffs to obtain this costly opinion before even having access to the justice system is an unfair hurdle that essentially means that those without certain financial means do not have the same legal rights as those who can afford more. As one state Senator who supports the bill commented during the hearing on it, “to stop anyone from having their day in court is not justice.”

Our Illinois medical malpractice attorneys know that this requirement—like all extra burdens on plaintiffs in these cases—is essentially just another loophole that defense attorneys can use to stall and throw out meritorious claims. This bill requires the medical opinion to be submitted by an attorney with “similar” background and experience as the doctor involved in the suit. That “similar” requirement has been interpreted by various courts as requiring nearly “identical” background and experience. That is very difficult and sometimes impossible to find. Therefore, defendants (even those who made the most egregious errors) are able to challenge the opinion, get it thrown out of court, and avoid being held accountable for their misconduct.

These sorts of barriers are unfair, unnecessary, and detrimental to patient safety. It should not be a controversial principle that medical providers be held accountable when they act unreasonably and hurt unsuspecting patients. Research has consistently found that lack of accountability breads more medical errors. Open and fair access to the civil justice system should not be feared.

See Our Related Blog Posts:

Tort Reform Laws Keep Legitimate Medical Malpractice Claims Out of Court

Experts Admit Lowering Healthcare Costs Not Affected by Tort Reform

March 27, 2012

Levin & Perconti File Medical Malpractice Lawsuit Against Silver Cross Hospital


Earlier this week two of our Illinois medical malpractice lawyers filed a wrongful death complaint on behalf of a local family whose son committed suicide in Silver Cross Hospital’s psychiatric unit. The case stems from the tragic passing of twenty-three year Jason Frame—a former New Lenox resident. Chicago medical malpractice attorneys Steven M. Levin & Michael F. Bonamarte will represent the family.

In late November of last year Jason admitted himself into the psychiatric unit at Silver Cross Hospital. Attorney Levin explains that at that time “Jason exhibited signs of delusions, hallucination, paranoia, and agitation.” He had clearly expressed suicidal ideations, and so it would have been appropriate for him to be placed on close watch with proper monitoring to ensure his safety. Unfortunately, it does not seem that the necessary care was provided to Jason at his time of vulnerability. Two days after his arrival at the facility Jason hung himself in the bathroom with a hospital gown.

Jason attended Columbia College and was a graduate of Crete-Monee High School in the south suburbs. He had musical talents and was known as a songwriter and gifted musician. He played the guitar, piano keyboard, bass, and drums. He even had his own recording studio. Jason performed at many local events and donated his time to help others learn and discover music.

His passing was a tremendous loss.

This tragic case represents the consequences of medical caregivers who fail to act reasonably when dealing with particularly vulnerable patients. Jason’s parents have explained that they were relieved when he first admitted himself into the facility, because, as any family would in a similar situation, they assumed that he would be better protected under the care of psychiatric professionals. As Jason’s father, Orville Frame made clear, “We trusted the staff at Silver Cross to protect him from himself, so we were devastated to learn that they left Jason alone with the tools needed to take his own life.”

The complaint in this case was filed with the Circuit Court of Will County. It includes allegations of inadequate care being provided by the hospital staff which contributed to Jason's suicide. Psychiatric malpractice may be less common than other forms of medical malpractice, but, as this case makes clear, the consequences can be just as severe. It is incumbent upon all medical practitioners, from surgeons and nurses to psychiatrists and other medical staff, to act reasonably at all times in their professional capacity.

The Illinois medical malpractice attorneys at our firm are proud to help community members like the Frame family who have suffered unimaginable loss as a result of the misconduct of professionals upon whom they thought they could rely. The need to prevent future harm lies at the heart of this suit. It is imperative that accountability be demanded so that no other family suffers a similar experience of preventable loss. Orville Frame explained, “We took action against Silver Cross to protect other patients, and hope that this will never happen to another family.”

See Our Related Blog Posts:

Report on $17.7 Million Levin & Perconti Medical Malpractice Settlement

Family Awarded $11.4 Million in Medical Malpractice Lawsuit

March 26, 2012

More Information Emerges From FDA Documents About DePuy Hip Implants


For over a year and a half our Illinois DePuy hip recall lawyers have been sharing information about the safety concerns of certain metal-on-metal hip implants given to thousands of patients. The devices were used in traditional hip replacement operations and were recalled in August of 2010. However, before the recall it has been estimated that as many at 93,000 patients worldwide received the defective device—including some in our area. The recall was initiated amid various concerns about the device’s safety. There were worries that the metal on metal designs led to small metallic particles rubbing off and entering a patient’s bloodstream. In addition, failure rates of the devices seemed to be far higher than previously thought. The implants were supposed to last for fifteen years, but many were failing much sooner—leading to pain, suffering, and long-term complications for the unsuspecting patients.

Of course, in all situations like this, it is important to understand what the companies involved knew about the safety of their devices and when. A recent New York Times article on the situation last week sheds more light on some of those questions. In 2009 the U.S. Food and Drug Administration sent a “nonapprovable” letter to DePuy company officials letting them know that a hip device used in an alternative hip replacement procedure called “resurfacing” would not be approved for use in the U.S. This device was used in places outside of the U.S., but officials were growing concerned about the failure rates of the device. In particular, in not approving the product, the FDA apparently noted that data submitted by the company in its application differed somewhat from data collected in locations where the product was already being used. For example, data from Australia indicated that the devices were failing at higher rates than acceptable, in many cases requires revision just a few years later, instead of lasted the expected 15 years.

The exact device at issue in the recently released FDA documents was never approved for use in the U.S. However, a companion device was used here. The companion device (known as articular surface replacement, ASR) was used globally for an 8-year period, with tens of thousands of U.S. patients receiving the product. It wasn’t until August of 2010 that these devices were recalled. However, a year earlier, shortly after the FDA letter’s about safety concerns for the companion device, the company which owned DePuy decided to phase out the ASR hips. That phase-out allegedly involved trying to deplete its inventory first—having more patients receive the potentially dangerous product that was still left in stock.

The Illinois medical malpractice lawyers at our firm understand the difficulties that face patients who have a procedure performed at a hospital only to have complications make the situation far worse. At times those complications are caused by the misconduct of the medical professionals involved (which is medical malpractice). However, at other times the harm is not the result of any negligent doctor or nurse actions but by dangerous products used in the procedure. The legal issues involved are different in each of these situations. However, patients should remember that in both cases the law may allow those hurt to recover for their harm. Be sure to share your story with a legal professional in our area to learn more.

See Our Related Blog Posts:

Number of Injuries From DePuy Hip Replacements Continues to Grow

Illinois Hip Implant Recall Shows Problems with Improper Product Testing

March 25, 2012

Comprehensive Review of Catheter-Related Bloodstream Infections


The March issue of General Surgery News includes a detailed analysis and clinical review of a problem that our Illinois medical malpractice lawyers know is a pressing concern—bloodstream infections caused by catheters in the hospital. These infections are almost always preventable and constitute type of health care associated infection (HAI) that impacts tens of thousands of patients every single year. Medical malpractice attorneys are patient safety advocates, and few projects are as important to patient safety as the lowering of these infection rates.

The HAI problem is an incredibly serious one for two reasons. First, the sheer scope of the problem is enormous. According to this latest clinical review, past studies estimate that there may be as many as 1.7 million HAIs every year. That amounts to about 4.5 infections per 100 hospital admissions. In other words, this is not an isolated problem but a systematic one. Second, the consequences of the infections are severe. The same experts suggest that nearly 100,000 medical patients die each and every year because of these infections which they acquire while in the hospital to be treated for some other ailment. If the old adage that a doctor’s first priority is to “do no harm,” then there is massive failure when that many patients die because of problems that develop (and could have been prevented) while they are already at the hospital.

The General Surgery News analysis into catheter related bloodstream infections (CRBSIs), explains that CRBSIs account for roughly 11% of all HAIs. About a decade ago the National Healthcare Safety Network—a group that is run by the Centers for Disease Control and Prevention—created an action plan that specifically targets the problem of CRBSIs. In an effort to tackle the problem, in 2002 the National Quality Forum began a public accountability and consumer access project to spur hospital into changes that would lower these infection rates. Five years later, in 2007, the Centers for Medicare and Medicaid Services (CMS) decided that it would no longer reimburse providers for HAIs. This was an important step, because financial incentives are often at the heart of safety changes. The overall effect of this billing change is still not fully understood. However, CMS officials last year began mandating that hospitals report their CRBSI rates.

According to this review, managing CRBIs involves two steps. First, an antimicrobial treatment has to be administered quickly. Of course, this requires close monitoring of the situation so that infections are caught early on. Second, the catheter needs to be removed or salvaged properly. Failure to take these two steps may result in severe problems for the patient, including death.

It is medical malpractice for patients to suffer injury at a hospital that should have been prevented had reasonable care been provided. In some instances that may involve a patient suffering injury after developing an HAI. If you suspect that you or a loved one was injured in this way, please reach out to a Chicago medical malpractice attorney at our firm to see how we can help.

See Our Related Blog Posts:

Medical Malpractice Lawsuit Filed After Wrongful Death Following Pressure Sore Infection

Federal Government Releases Information on Hospital Errors

March 24, 2012

Complications from Unnecessary Procedure Cause Patient to Become Quadriplegic


Mercury News reported this week on a large medical malpractice verdict involving a woman who suffered extreme disability as a result of a series of medical errors. The case represents both the serious consequences of medical malpractce as well as the sometimes unique causation issues in these cases.

According to the story, doctors at the defendant-medical foundation ordered the plaintiff to undergo an angiogram in October of 2006. An angiogram is an intrusive brain procedure that obviously involves risks and should only be undertaken when absolutely necessary. In this case, the doctors explained to the patient that the procedure was need to investigate an abnormal vein in her brain. She had originally visited the physicians to seek treatment for migraines.

Heeding her doctor’s advice, the woman was referred to a different medical clinic to have the procedure performed—the original medical foundation did not have the resources to perform the operation. Unfortunately, the operation caused problems. When the dye for the angiogram was injected into the patient’s brain blood vessels, the woman suffered a vasospasm (form of stroke). The stroke threw her into a coma for the next two weeks. When the woman awoke, to her horror, she found that she was a quadriplegic. She had lost use of both her arms and legs.

Later it was learned that the angiogram was completely unnecessary, because the vein sought to be investigated had nothing to do with the migraine complaints. The medical malpractice lawyers involved in the case explained that doctors at the medical foundation should have known this. Their mistake in ordering the test caused the stroke.

A medical malpractice lawsuit was filed. The case eventually went to trial, and, after several weeks, the jury handed down a $22 million verdict in the plaintiff’s favor. However, because of arbitrary damage caps in the state, the award will likely be significantly lower. The jury award was for a suit against the medical foundation alone. The medical team which performed the actual angiogram settled with the women before the end of the trial.

Each Illinois medical malpractice lawyer at our firm appreciates that this case demonstrates the sometimes complex rules of causation. Like any negligence case, to be successful a plaintiff must show that the defendant owed a duty, breached that duty, and the duty caused the harm. In this case, the defendant medical foundation did not actually perform the test. However, the rules of causation are such that even events before the procedure could have been a factor—namely the decision to have the test performed at all.

The causation element in these cases is best thought of as two separate elements: “but for” causation and “proximate” causation. Each has to be proven. “But for” causation is simply a chain of events idea. But for the actions of the defendant the harm would not have arisen. In this case, if the medical foundation had not ordered the test, then the harm would not have happened, regardless of whether or not the test was performed correctly. Proximate cause is a much less clear concept, but it generally refers to the fact that the conduct must have been “close” (in time or place) to the harm. This is a subjective judgment that is often debated in legal circles. For example, if the patient in this case had gotten into a car accident after driving home from the procedure, technically, the accident would not have happened had the doctors not recommended the test. However, the ordering of the test would likely not be considered a “proximate” cause of the car accident because its connection is too attenuated.

See Our Related Blog Posts:

Medical Malpractice Lawsuit Filed After Wrongful Death Following Pressure Sore Infection

Federal Government Releases Information on Hospital Errors

March 23, 2012

Tips for Patients to Become More Involved in their Health Care


The Agency for Healthcare Research and Quality (AHRQ) would like to remind all community members of the importance of becoming intimately involved in your own health care. This is a message that each Chicago medical malpractice lawyer knows to be an important one. While the law can provide redress and accountability after a preventable mistake occurs, all patients would prefer to avoid the harm at the outset. Being proactive in the care received is one way that medical errors can sometimes be caught before they cause harm.

Of course, it seems obvious that all patients would take an active role in their own health care. However, beyond just heeding medical advice, it is important to actually ask questions and clarify information received from medical providers. In this way, if the professional has forgotten something or made an error he or she may be reminded to correct it when asked by patients.

The AHRQ is working hard to raise awareness of the important of active health care involvement. They have created many resources including pamphlets and videos to explain how patients can ensure that they are as active as possible with their medical professional. For example, one handy brochure explains how preparation is the key to active health care participation. Specifically, it is important for patients to plan ahead for questions that they might have and things to be on the lookout for. A few tips include…

Before an Appointment
-Be sure to bring all medicines to your appointments, including prescription drugs, non-prescription drugs, supplements, and vitamins.
-Come with a written list of any questions that you might have. Trying to remember them without writing them down often leads to them being unasked.
-Be educated about your own past medical history (including surgeries and allergies) to explain in case you are asked.

During an Appointment
-Be forthright about any problems you are having or concerns about past issues when receiving treatment.
-If there is anything that the doctor has explained that is unclear, ask questions to clarify.
-If a test is ordered, ask how it is performed, how it will feel, what preparation is required, and how the results will be received.
-If you need a prescription, explain to the doctor if you are pregnant, nursing, have allergies, or are taking any supplements.

After an Appointment
-Follow doctor’s instructions as closely as possible.
-Never stop taking medications that were prescribed unless you have specifically talked with a doctor or pharmacist about doing so.
-If symptoms get worse or you are unsure about medical instructions, be sure to contact your doctor immediately.
-If necessary, promptly set appointments for tests to be performed.

Our Illinois medical malpractice lawyers remain committed to patient safety. That includes providing accountability and redress when errors are made. In addition, the patient safety effort also involves helping all community members be proactive in the care they receive, helping to prevent mistakes before they actually cause harm. To learn more about these issues and access helpful material, consider visiting the Agency for Healthcare Research and Quality’s website to explore their offerings.

See Our Related Blog Posts:

Medication Error Rates the Same with Electronic Prescriptions

Medication Errors Require Millions to Receive Additional Care

March 22, 2012

County Hospital Settles Pair of Medical Negligence Cases


Medical malpractice cases come in many forms. When categorizing the types of malpractice in common parlance, there is usually too much emphasis on the injury itself and less attention on the actual type of negligence alleged. In other words, two patients may file a medical malpractice lawsuit after suffering brain injuries. However, the actual cases could be wildly different depending on how those injuries developed. For one patient, the injury may have been caused by a surgical error, with a doctor making egregious mistakes in the middle of the procedure that led to the injury. In the other case, the problem may be rooted in a failure to diagnosis, with claims not that the doctor caused the initial injury but that the consequences of the injury were far greater than they should have been because the doctor did not identify the problem when a reasonable doctor would have.

Each of these two legal cases, though both involving medical malpractice following brain injuries, will have very different arguments and evidence presented. Our Illinois medical malpractice lawyers know that it is often helpful for local residents to be aware that the type of negligence accusations made are usually more critical than the type of harm itself. Understanding this distinction makes it easier to understand why certain cases might be stronger than others, depending on the available evidence. Looking only at the harm is often less helpful.

In any event, however, the same goal in virtually all medical malpractice lawsuits is to provide redress to those hurt by the errors and to ensure that the negligent party is held accountable. Both of those goals can be met either via settlement between the parties or successful verdicts from a judge or jury after a trial. As many are aware, settlements are actually more common than verdicts.

Unfortunately, there is a public misconception that settlements provide less accountability, and that somehow families which accept settlements are only in the case to make money. Of course, this is entirely untrue. Just as with cases that go all the way to trial, settlements serve the same accountability function, often involving publicizing a negative event that occurred and ensuring that the hospital, doctor, nurse, or other medical professional faces some consequences for their actions. In addition, each Chicago medical malpractice lawyer at our firm has worked with families who seek to ensure changes are made at different institutions by requiring certain safety improvements as part o settlement agreements.

For example, this week the LA Times published a story on two settlements reached by one county hospital in that community. In one case, a woman suffered a stroke after giving birth. However, the medical team failed to provide reasonable care and she was sent home. She had to return to the hospital the very next day where she was diagnosed with bleeding on the brain. As a result of the delay she suffered permanent, severe brain damage. In the second case, a man came to the hospital with a head injury that he obtained while at work. The injury was very severe requiring prompt action. However, the medical team did not move quickly. Instead he was simply given medication and forced to wait. Eventually a surgical procedure was performed, but it was not done in time to prevent permanent neurological injuries.

Both cases settled recently—the first for $3.5 million and the second for $650,000. As the news story about the cases attest, the settlement also involved publicity of the errors, allowing other community members to learn about what went on and how. This publicity will no doubt have impact on steps that the hospital takes to prevent similar problems in the future.

See Our Related Blog Posts:

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

Too Much Noise in Operating Rooms Increase Surgical Errors

March 21, 2012

New Medical Device Bill Introduced to Avoid Defects Like DePuy Metal-on-Metal Hip


According to Mass Device, a group of legislators have introduced another bill that seeks to keep medical patients safe from unsuspecting medical device errors. The latest measure was spurred in large part by a spate of medical device failures that have harmed countless residents in our area and throughout the country. Perhaps the most high-profile of those errors involve defective hip implants which spurred the Johnson & Johnson DePuy Orthopaedics ASR hip implant recall. Our DePuy hip recall lawyers understand that many local residents have faced serious problems as a result of these failures. Designs flaws in the hips can lead to release of metallic particles in the body. The product can cause significant pain and swelling, making it difficult to walk. Costly and risky revision surgery is often required.

To help avoid more device failures and keep patients safe, a bipartisan group of Senators are hoping to beef up U.S. Food and Drug Administration (FDA) oversight to prevent dangerous products from being used and to catch defective products that slip through the cracks. The latest proposal, introduced late last week, is known as the Ensuring Safe Medical Devices for Patients Act. It is being sponsored by three Democrats (Senators Jeff Merkley, Michael Bennet, and Herb Kohl) and one Republican (Senator Chuck Grassley).

After introduced the bill, one of the Senators noted that there is a balance that needs to be observed between taking advantage of technological changes to potentially improve medical care and ensuring that those devices first “do no harm.” That balancing act between proper use of innovation and patient safety is something that our Illinois medical malpractice lawyers intimately understand.

The new bill would essentially have two main components. The first would require the FDA to issue a final rule on a project known as the Unique Device Identifier program. The program is five years old and was intended to systematically track medical devices. Tracking is important, because it allows regulators to catch higher-than-allowable rates of failure in those devices. As soon as they are caught, the product can be pulled from the market, ensuring that fewer patients are exposed to the unnecessarily high risks. Failure to track, as in the case of the DePuy hip recall, often means dangerous products are still used until the total number of affected patients is staggeringly high.

The second part of the new proposed measure would add medical devices to the Sentinel post-market surveillance initiative. Similar to the Unique Device Identifier program, this Sentinel initiative involves monitoring products and devices after they are on the market. Right now the program is limited just to prescription drugs.

Our Chicago medical malpractice lawyers know that this bill comes on the heels of another measure proposed last December which similarly seeks to keep medical devices safe. That bill, the Medical Device Patient Safety Act, would increase FDA power during the approval process. Specifically, the legislation seeks to provide the FDA with more flexibility. If passed the agency would be able to offer conditional approval to certain devices, allowing full approval to hinge on successful completion of more patient safety trials.

See Our Related Blog Posts:

Number of Injuries From DePuy Hip Replacements Continues to Grow

Illinois Hip Implant Recall Shows Problems with Improper Product Testing

March 20, 2012

Illinois Medical Malpractice Suit Settled by University After Robotic Surgery Death


Medical technology offers seemingly endless possibilities for improving patient care and saving lives. However, as with anything connected to medical treatment, it is vital that all improved medical tech tools first do no harm. Each Chicago medical malpractice lawyer at our firm believes that it is unacceptable for patients to be harmed by medical errors in all situations—including where high-tech new tools are being used.

For example, the Chicago Tribune reported last week on the end of an Illinois medical malpractice case involving allegations of crucial errors caused by robotic equipment used during a surgery. The case had been filed several years ago by the family of a man killed during an operation to remove his spleen. The defendant facility in the case was a Chicago based clinic run by the University of Illinois.

According to reports, the man underwent surgery in February of 2007. During the robotic surgery the family claims that the patient suffered an injury. Documents filed in the suit allege that the caregivers at the facility did not act appropriately to identify that secondary injury and provide treatment which would have saved the man’s life. Court testimony in the case from earlier this year confirmed the operation was the first that the particular surgeon in charge had ever performed used the robotic equipment. This suggests that the surgeon may not have been prepared to utilize the high-tech tools in a safe way to ensure that the patient was not exposed to unnecessary risk of harm. Last week the University of Illinois trustees voted to approve an offered settlement in the case. Per the terms of the agreement, the University will pay the man’s family $6 million as a result of the Chicago medical malpractice. The University of Illinois Medical Center is owned by the public institution, and so all proposed major legal resolutions required approval from the Board.

Each Illinois medical malpractice attorney at our firm appreciates that robotic surgeries must be properly managed at all times to avoid unnecessary patient injury. These surgeries involve use of equipment that doctors manipulate via use of computers. Many surgeons are unfamiliar with these tools, particularly those who have not been adequately trained and who may have little experience in these operations.

Robotic surgeries are still somewhat unique, but are most often used for things like prostrate removal, kidney repair, and mitral valve replacement. When errors are made, long-term problems can arise—occasionally including damage to other organs. Sometimes the harm is compounded when that damage is not immediately identified. Far too often it is not until after the surgery that the damage comes to light, often too late to save the patient’s life.

All surgery involves some risk. However, harm caused during robotic surgery as a result of inexperienced or ill-trained surgeons is never an acceptable or excused risk. Patients have the right to expect that their care providers will act reasonably at all times. If harm is caused, those patients have the legal right to expect the harm to be quickly identified and treated. A breach in any of these regards is malpractice.

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March 19, 2012

Husband Wins Med Mal Lawsuit After Wife Killed Following Botched Gynecological Procedure


The Independent Mail reported last week on the end of a medical malpractice trial initiated by a husband who lost his wife because of surgical errors made during a gynecological procedure. As often happens in these suits, the end of the ordeal was a long-time coming. According to the story, the wife underwent surgery at the defendant-hospital in mid-November of 2007. The gynecological procedure was initially assumed to have gone without a major problem. However, it eventually became clear that the woman’s bowel had been perforated during the surgery. Within three weeks, the woman had died as a result of complications from that injury.

In filing the lawsuit, the family’s medical malpractice lawyers argued that a string of errors led to the woman’s death which should have been prevented. For one, the family argued that the bowel perforation itself was a sign of negligent care administered by the surgical team. In addition, the attorneys argued that the involved doctors did not sufficiently check the woman’s condition following the surgery. If they had done so, the family argued, then the bowel perforation would have been caught sooner, emergency actions could have been taken, and the woman would still be alive. For their part the medical facility and doctors denied any wrongdoing. They claimed that the bowel perforation was a common risk for that type of surgery and that timely diagnosis and treatment was rendered afterward.

In the medical malpractice trial that stemmed from the incident, the jury ultimately agreed with the husband. They found that the facility acted negligently which led to the death of the woman. The family was awarded $2.4 million. However, the hospital is expected to appeal the verdict. That means that the family will have to wait even longer before actually seeing any redress. In many cases, particularly those that go to trial, the defendants will use every legal maneuver in the book to drag out the process before providing any compensation.

Our Illinois medical malpractice lawyer appreciate that this type of case illustrates a theme common in many of these cases with various acts of negligence. Unfortunately, errors often compound on one another. In cases with the worst outcomes—where patients die—this is even more likely. In other words, it often takes several errors together to actually cause a death. For example, it was one act of negligence for the bowel to be perforated initially. However, it required additional negligent conduct—not providing proper check-up and diagnosis—which allow the complications from the initial error to lead to a fatality.

Different safeguards should be put into place at every medical facility to guard against this string of multiple errors. If checks are made at all times and protocols are following to ensure harms do not go unnoticed, then many patients who might otherwise die from these mistakes could be saved. Each Illinois medical malpractice lawsuit that exposes these errors acts as an important reminder for these facilities of the consequences of not having those checks in place. In this way, good things can hopefully come even from the most heartbreaking of tragedies.

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March 18, 2012

How Many Patients Deaths Are Actually Connected to Medical Malpractice?


The National Patient Safety Foundation declared last week to be Patient Safety Awareness Week. The organization used the occasion to raise community awareness on issues of concern to medical patients. Obviously, our Chicago medical malpractice lawyers understand that virtually everyone would agree that avoiding preventable errors at hospitals and medical centers should be avoided. However, there remains a surprisingly lack of urgency in addressing the problem.

Both a symptom and a cause of this laissez faire attitude is the lack of proper counting of the number of Americans of who die because of preventable medical malpractice. The truth is that we do not fully know the overall scope of medical errors in all contexts. Because inadequate attention has been focused on the issue, resources have not been invested into sufficient tracking of the problem. As a result, less public attention is focused on the overall epidemic. This is a cyclical problem that, in the end, leads to worse patient care for all of us.

A post last week from the Health Affairs Blog emphasized this lack of proper tracking of deaths from medical errors. The post cleverly explores how many of the often used figures seeking to quantify the scope of these errors are actually insufficient.

For example, the Illinois medical malpractice attorneys at our firm have frequently referred to the landmark Institute of Medicine study—To Err is Human—which found that upwards of 98,000 patients die every year from preventable errors and more than one million are injured. However, though it may be hard for some to imagine, these figure actually underestimate the problem. That is because the figure does not account for certain types of errors, like central-line associated bloodstream infections (CLABSIs) in outpatient clinics. A Center for Disease Control and Prevention study found that these infections arise in one out of thirty five consultations—with a fatality rate of 25%. In other words, the Institute of Medicine figures fail to count thousands of preventable deaths.

A more recent study from the Department of Health and Human Services (HHS) found that 90,000 patients die each year as a result of preventable medical harm in hospital. This effort was a bit more all-encompassing in the types of harm measured—like hospital acquired infections. However, this HHS study only referred to problems in hospitals. Millions of Americans receive treatment (and are harmed) in different settings and so this effort similarly underestimates the trust cost of the problem. Regardless, this HHS study is an important one, because for the first time it included a rigorous method to actually measure not all of these hospital-acquired infections but only those that were actually preventable. In other words, this 90,000 figure is not some number plucked out of the sky based only on counting up infections—it systematically accounts only for those infections which should not have occurred had care standards been met.

At the end of the day, according to this post, there is simply no current measurement of the total amount of preventable harm caused by medical errors in all medical settings. As a result, it is unlikely that the true scope of the problem will be displayed in high-profile terms that might catch the public attention and actually force changes to improve care.

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March 17, 2012

Cow Maps But No Infection Maps--Urgent Need to Better Track Hospital Acquired Infections


Yesterday we discussed the lack of proper tracking methods that fully account for the deaths actually caused by preventable medical errors in all contexts. Each Illinois medical malpractice lawyer at our firm believes that addressing the problem of preventable errors has to begin with understanding what the problem is. Identifying the total cost and number of deaths would seem a basic step in that direction. However, there is a second prong needed to fully address the issue. Not only must we better understand what the problem is, but we need to identify where it is.

This concern was adeptly illustrated in an article earlier this week from the Center for Disease Dynamics, Economics, & Policy (CDDEP). The article notes that while we have a “cow density” map explaining the number of livestock in each part of the country, we do not have a similar map for something as important as preventable hospital acquired infections. The comparison is not facetious, as real recommendations were given at a recent healthcare summit for this agricultural model to be mimicked in the healthcare industry.

The article admits that it is hard to even talk about the overall scope of the hospital acquired infection problem, because tracking is so poor. Many estimates explain that roughly one in twenty patients will be affected, but there remains little hard evidence on the depth of the problem. However, that is not an excuse to fail to take action. The article asks the question pointedly, “Why don’t we have a map that maps the rates of deadly superbugs such as MRSA or for that matter all of the major bacteria that cause healthcare acquired infections?”

So why doesn’t such a map exist? It is not because we do not possess the ability to track measures these infections. The problem is that some medical providers involved have engaged in a somewhat absurd range of side arguments about how exactly the effort should progress.

The CDDEP article points much of the blame at powerful lobbying interests for the healthcare industry which works all the time to squash reporting and transparency requirements at medical facilities. Perhaps most infuriatingly, the reasons given by these groups to avoid counting have to do with relatively small disagreements about definitions and claims that hospital personnel would be too burdened to keep track. Meanwhile, patients continue to be infected and die without any real idea of where the problem is worse and where resources need to be focused.

The Chicago medical malpractice attorneys at our firm appreciate that those hurt by preventable medical errors cannot wait for these squabbles to get sorted out before demanding accountability. Fortunately, the civil justice system still exists to ensure each individual case of hospital harm caused by medical malpractice can be brought before neutral bodies and investigated. The healthcare lobby is certainly working to limit this accountability tool as well, but, at least for the time being, those in our state are still able to ensure negligent care providers are held to task when they do not provide the level of care that all patients are entitled.

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March 16, 2012

State Lawmakers Rail Against H.R. 5


As we explained earlier this week, a vote on the misguided piece of legislation known as H.R. 5 is expected soon. Our Illinois medical malpractice attorneys have been working to spread information about the dangers of this proposal since it was first introduced almost a year ago. The measure is a comprehensive one that, besides repealing parts of the Affordable Care Act, would mandate various “tort reform” measure on every state in the country. Those “reform” measures are nothing more than elimination of various legal rights for all regular community members hurt by the negligence of others.

In response to the looming vote, many state lawmakers are speaking out against the measure. As reported in The Hill this week, the nation’s leading advocacy group for state lawmakers recently sent a letter to GOP House members who are spearheaded the H.R. 5 effort. The letter from the National Conference of State Legislatures (NCSL) sends another strong message to Congressional Republican leaders that it is extremely hypocritical to talk about the value of states’ rights while at the same time pushing federal legislation that mandates arbitrary rules against the wishes of states. In medical malpractice reform terms, that is what H.R. 5 does. In other words, even if one believes the claims made about the merit of this “reform”—and we often discuss the lack of logic in those claims—there is still no reason to support this bill.

The NCSL letter specifically notes that “there is strong bipartisan opposition” to H.R. 5. Regardless of one’s position on tort reform generally, the state law advocates remind observers that issues relating to medical malpractice, product liability, and tort law should be the province of state elected officials—not Washington lawmakers. Federalism is a principle imbedded in the national political structure. The vast majority of policy issues related to insurance licenses, court procedures, plaintiff compensation, and other matters have always been out of bounds for federal officials.

The NCSL does not take a position on tort reform positions specifically in the letter. Instead, the body reminds members of Congress that individual state legislatures have been more than capable of making up their own minds about these issues, with hundreds of pieces of legislation debated and voted on in states across the country on these issues in 2012 alone. In a sound summary of the situation, the letter notes that “the adoption of a one-size-fits-all approach to medical malpractice envisioned in H.R. 5 would undermine…diversity and disregard factors unique to each particular state.”

There is simply no argument that pushing a bill forcing states to adopt new rules in all of these areas runs directly counter to the principle of federalism. Amazingly, the lawmakers pushing this bill claim to be the nation’s most ardent supporters of federalism. Hypocrisy, it seems, is not beneath some of those doing the bidding of deep-pocketed political interests. Of course it is regular community members who are thrown under the bus.

The Chicago medical malpractice lawyers at our firm remind readers that there is still time to send a quick message to your member of Congress to voice your opposition to this bill. The vote is expected any time this upcoming week. Please follow this link to let you position be heard and help ensure justice and fairness are left open for all community members.

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

March 15, 2012

Patient Rights Advocates Need to Stand Against House Resolution 5—Vote Next Week


The legislative process can be tough for community members to follow closely. The advance or defeat of bills rarely occurs at a standard, predictable pace or timeline. Instead, some proposals are brought forward one day, not acted upon for months, and then furiously advanced through the entire process in a week. At other time a bill can be introduced and fast tracked seemingly overnight. With a plethora of parliamentary rules and procedures in place, there is no easy way to say with certainty whether any piece of legislation is ever completely defeated.

This principle is bearing out right now on an issue of vital important to all those who care about preserving legal rights for community members, including our Chicago medical malpractice lawyers. For months we have reported on a dangerous proposal known as House Resolution 5 (H.R. 5). The bill would mandate a wide range of changes in legal rules across the country which cumulatively would have disastrous effects on the rights of those hurt by medical malpractice, nursing home negligence, and many other forms of mistreatment. Stalled for over a year, the measure now appears poised for a vote by the full House of Representatives.

The American Association for Justice (AAJ) recently issued an alert updating advocates on the situation and urging that all those who care about defeating the bill to ensure their own representatives are made aware of their opposition. According to the AAJ the bill has been thrown onto the fast-track in the Republican controlled House. A vote on the floor is expected as early as next week. Apparently, the vote on the measure is supposed to be timed such that it coincides with the U.S. Supreme Court’s hearing of oral arguments related to the recently passed Affordable Care Act of 2010. This is no doubt a political move that will be used to capitalize on national attention related to healthcare issues generally. On top of dangerous tort reform provisions, H.R. 5 also includes legislation which would repeal parts of the healthcare bill.

The tort reform measures advocated in the bill are completely unnecessary. The most favorable estimates from the Congressional Budget Office only suggest that the savings from tort reform would max out at one half of one percent of all healthcare spending. The costs of those savings are entirely unacceptable, considering that the changes would drastically limit the accountability function served by civil lawsuits. Nearly 100,000 people die every year because of preventable medical errors. Those cost of the extra care as a result of those errors is $300 billion annually. In other words, no matter what way you slice it, this legislation is not only unfair and illogical but harmful.

The AAJ reminds advocates that the measure needs to be defeated in the House both to stall the advances of the misguided bill as well as to send a strong message to the Senate that the measures are not indicative of the wishes of most community members. To help out with the effort now, please take a moment to contact your Congressperson to voice your opposition to H.R. 5. Though sometimes it may not seem like it, when Representatives get a flood of communication on a particular piece of legislation, they certainly take notice. Remember that the vote is expected next week, so there is no time to delay.

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March 14, 2012

Safety Concerns at VA Clinic After Nearly $1 Million in Payouts for 8 Patient Deaths


The Republic reported this weekend on new concerns about chronic medical malpractice that are being lobbed at a U.S. Department of Veterans Affairs clinic after news surfaced about a series of mistreatment. According to publically available records, the U.S. VA Department paid out nearly $1 million over a four year time period to settle claims of medical malpractice against a single facility lobbed by family members in at least eight cases where patients died. That does not count two more pending cases which make similar accusations of death caused by malpractice. Overall, there have been seventy two malpractice-related legal claims filed against this single veteran’s hospital in the last five years.

Our Illinois medical malpractice attorneys know that it is easy to get caught up in the numbers of claims filed. However, it is important not to fail to discuss the individual stories behind each claim. At the end of the day malpractice is not about numbers but families. For example, one of the claims was filed by a wife after the death of her husband. She explains that her life changed forever when she got a call in the middle of the night from the hospital. She thought it was an early morning call from her husband. Instead, it was from his doctor saying that her husband had died. The death was the result of an internal hemorrhage from a liver biopsy that had been performed earlier in the day. Allegations claim that the man had been on too much blood thinner both before and after the procedure which led to his death. In addition, records indicate that nurses did not properly check the man’s vital signs before his death. This was in direct conflict with the caregiving orders that they had been provided.

Record-keeping incompetence also led to unnecessary heartache for the family. The wife explained that the hospital did not have the family’s proper phone number so “when they knew he was dying, they didn’t get ahold of [the family] so [they] could go in and see him before he died.”

This case is just one of the dozens of similar stories of misconduct alleged against this one facility. For example, the hospital paid $275,000 to settle a claim by one patient whose hip infection was not timely diagnosed resulting in his death. In another case the hospital’s pharmacy apparently dispensed an incorrect dose of a chemotherapy drug leading to the death of the patient.

Each Chicago medical malpractice lawyer at our firm often explains that medical malpractice cases frequently reveal trends. The most negligent hospitals or most dangerous doctors often have many different suits filed against them. This is one of the ways that the civil justice system helps to provide crucial information to medical consumers. Patients have little ability to properly gauge the quality of services provided by any medical providers unless they have some markers to compare. Each patient who has not received adequate care who comes forward helps in this sunshine process by adding their case to the overall information available about these facilities and caregivers. That is why we continue to urge all local residents to visit with a legal professional if they suspect they or a loved one was hurt by mistreatment by medical teams.

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March 13, 2012

Expert Opinion in Medical Malpractice Cases and “Junk Science”


Each Chicago medical malpractice lawyer at our firm often explains to clients the role of the expert witness. Medical malpractice claims essentially allege that a medical professional breached a standard of reasonable care and caused harm to a patient. However, unlike tasks in which most people are familiar, the conduct of medical professionals is highly specialized and foreign to those not trained in the field. That is why, in a medical malpractice case, expert witnesses are needed to explain what constitutes reasonable standards of care in any given scenario.

Juries obviously place a lot of weight on the testimony of experts, because their opinion usually goes to the very heart of the case: whether or not the conduct of the medical professional was appropriate. Understanding this importance, the U.S. Supreme Court has emphasized over the past few decades that trial court judges must act as “gatekeepers” when deciding what experts are allowed to testify. The goal is usually to prevent “junk science” from being explained to the jury. Of course there are no fool-proof ways to determine what is or is not “junk science.” However, in general, the Supreme Court has explained that science is legitimate if can be empirically tested, was subject to peer review and publication, has a known error rate, and has a set of standards and controls. The degree to which the scientific community has accepted or embraced the material is also a factor in the analysis.

Like many other attacks against victim’s rights advocates, our Illinois medical malpractice attorneys know that when claims of “junk science” are made they are almost always directed against a plaintiff. However, that characterization is unfair, because defense teams are just as capable of trying to introduce evidence from an expert in a case based on claimed scientific positions that have no merit.

For example, an interesting new guest post from the New York Personal Injury Attorney Blog explains how junk expert testimony is also being used by defense attorneys. It is only very recently that the plaintiff’s bar has begun challenging claims made by defense experts. The article highlights an Erb’s palsy lawsuit. Erb’s palsy is a type of birth injury that is most often caused by excessive force applied when a child’s shoulder gets caught in the mother’s birth canal during delivery. When the head of the child is pulled at this time, the bundle of nerves known as the “brachial plexus” can become injured resulting in permanent arm disabilities.

However, in order to avoid responsibility for causing this injury some doctors began making claims in these suits that the injury may not be caused by excessive force applied by the doctor but by “natural forces of labor.” Only a very small group of doctors ever actually published on this “natural forces” theory. There was essentially no original research on the matter, and those same doctors kept citing one another again and again in literature. Conveniently, those doctors also flew around the country testifying at trial about this “alternative” explanation for Erb’s palsy.

However, one state court recently recognized that this claim of “natural forces” as a possible cause of the condition was far from being an accepted principle. They recognized that the theory had never been subject to bona fide scientific testing. Because of this the trial and appellate courts, for the first time, did not allow the defense experts to raise the claim. This represents an important step in ensuring that juries in these cases are presented with accurate impressions about the causes of these harms.

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March 12, 2012

Legislative Lien Bill Moves Forward in Illinois General Assembly


Last month our Illinois medical malpractice lawyers discussed the growing problems of medical care providers who refuse to submit bills to patients’ insurers in hopes of getting a larger share of an injury victim’s damage award. The issue has serious effects on the collection of a judgment following an injury award. Many families in desperate need of funds to get their lives together after an accident and injury are often forced to jump through even more legal hoops as a result of this practice.

One of the underlying issues is that many medical providers charge different rates for the same services. Depending on the patient’s insurance coverage or financial situation, the hospital can bill the patient wildly different amounts. Often if a hospital suspects that the patient may be receiving an award or settlement because their injuries were caused by a third party, then the hospital will try to get a portion of that award. The medical providers do this by trying to put a lien on the damage award instead of actually submitting the bills to the health insurance company for payments. All Illinois injury lawyers understand that hospitals negotiate with insurance companies to charge less for services so long as the insurer steers patients to the hospital. That is why the hospital would prefer not to submit discounted bills to insurers, but to place on a lien on the patient’s assets directly. This allows them to ultimately collect much more.

The increasing use of this method by hospitals has serious adverse effects on the community member involved. To help address the issue, a new piece of legislation has been proposed in the Illinois General Assembly which our Illinois personal injury attorneys support. The measure, HB 5823 is being sponsored by State Representative Andre Thapedi. The bill would offer necessary amendment to the Health Care Services Lien Act—which allows the hospitals to engage in the practice to begin with.

The bill provides that if the individual patient has public or private insurance benefits available, then the hospital is required to respect the rates set up by that relationship when submitting medical bills as part of the process. The lien amount will not be able to be inflated from those rates merely because the medical provider expects the injured party to receive a certain-sized award or settlement. In addition, if as part of the litigation the plaintiff’s award is reduced because of comparative fault issues, then the lien amount would be similarly reduced.

Last week the measure made it beyond the first hurdle by passing the House Judiciary Committee. The bill seemed to have solid support, making it out of the committee by a 7-3 vote. The Illinois Trial Lawyers Association President Jerry A. Latherow as well as ITLA Legislative Co-Chairman Mark D. Prince testified in favor of the measure as part of the hearing on the legislation. The advance of the bill was no small feat, considering various influential healthcare industry groups were publically opposed it.

Each Illinois medical malpractice lawyer at our firm appreciates the long legislative process and the many hoops that still must be jumped throughout before this common sense bill becomes law. The measure now moves to the House of Representatives for a full vote. It the bill passes there, then the state Senate will be required to pass the bill and a gubernatorial signature will have to be obtained before the measure actually can begin to help local residents.

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March 11, 2012

Medical Malpractice Plaintiff Granted New Trial Over Defense Counsel Actions


Most community members have a basic idea of how the appeals process works in civil law cases. An appeal, of course, is essentially a “second opinion,” where a party who is unhappy with the result of a decision in a different court is asking for reconsideration. However, each Chicago medical malpractice lawyer at our firm has often explained that the rules regarding appeals are more complicated than simply asking another court to make a different decision. Not all appeals are created equal.

For one thing, there must be grounds for an appeal. That means that it is simply insufficient for any party to get an appeal simply because they did not like the outcome. Instead, specific errors of law or fact be alleged, whereby the moving party suggests to the appellate court that law or basic fact decisions were misapplied or other procedural unfairness occurred in the lower court proceeding. These grounds may challenge many decisions from evidence that was allowed (or not allowed) to be presented to decisions of summary judgment and motions to dismiss.

Perhaps most importantly, in any appeal there are many different lenses in which the appellate court (often referred to as the “higher” court) will look at the decision in the lower court. These different lenses are referred to as “standards of review” and they have a huge impact on the likelihood that any given appeal will be successful. There are actually half a dozen or more different standards and each applies differently depending on the grounds for the appeal. Perhaps the typical standard is “manifestly erroneous” meaning that the court will over overturn the lower court’s decision when a mistake was obvious—close calls do not count. At the other end of the spectrum, “de novo” review awards no deference to the lower court’s decision. This means that the appellate court will review the decision with completely fresh eyes.

Our Illinois medical malpractice attorneys realize that plaintiff appeals usually occur if a court ends the case early, via a motion to dismiss or summary judgment. On the other hand, it is the defense that is most likely to appeal following an unfavorable verdict or decision. This is the case in large part because, depending on the size of an award, some defendants feel like they have “nothing to lose.” If they appeal and lose they still have to pay the award anyway with the only loss being the cost of attorney’s fees throughout the appeals process.

It is much rarer for a plaintiff to appeal an unfavorable trial decision and win a new trial on review. However, according to a story in the ABA Journal this week, that is exactly what happened in one recent medical malpractice case. Following an unfavorable verdict, plaintiffs in the case appealed based on the egregious and prejudicial conduct of the defense counsel during the trial. The plaintiff’s medical malpractice lawyer explained how the defense lawyer used phrases like “working the system” to inflame passions unfairly against the plaintiff. Instead of trying to get to the truth of the matter, the defense attorney personally attacked the plaintiff’s treating physician and expert medical witness. In addition, during cross examination the defense lawyer apparently wet off on a range of tangents that touched on the lack of a judicial raises over the past ten years, among other irrelevant things. Fortunately, the appellate court noted the improper nature of the counsel’s actions and ordered a new trial.

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March 10, 2012

Widow Files Lawsuit Against ER for Failure to Diagnose


The Greenwich Times reported this week on a new medical malpractice lawsuit filed by a woman who alleges that her husband’s passing was caused, in part, by inadequate medical care that he received in an emergency room. The complained of error is a common one in these suits and also one of the most potential deadly: failure to diagnose.

The article explains that the plaintiff’s husband died two years ago at only forty six years old from a pulmonary embolism. A pulmonary embolism is a blockage of one (or both)of the main lung arteries by a substance that has traveled from another part of the body. Most often this is caused by a blog clot that originates in the deep veins of the leg. Each Illinois medical malpractice attorney understands the seriousness of these embolisms and the critical importance of identifying them as soon as possible to avoid life-threatening complications.

In this man’s case he apparently had pulmonary embolisms in both of his legs at the time that he visited the emergency room—10 days before his death. Upon his visit he explained that he was suffering from “flank pain.” The ER staff performed only one test—a CT scan—and then released him the very same day. No other tests were performed to better identify what was causing his pain. It was only nine days later that the man suffered a medical emergency at home that required him to be rushed to a local hospital. He was in critical condition when he arrived. A CT scan performed at that time revealed a pulmonary embolism. He was put in the intensive care unit where he died the next day.

A week and a half after his passing an autopsy revealed that the man’s problems did not develop suddenly. In fact, the pulmonary embolisms had actually been in his lungs for week. Yet, they had not been identified—even after a CT scan apparently taken by emergency room officials only ten days before his death.

Every Chicago medical malpractice lawyer at our firm recognizes that facts like these strongly suggest malpractice on the part of those in the emergency room. As the legal professional representing the widow explains, “They [the ER team] were simply not permitted to discharge without ruling out whether he was suffering from a life-threatening condition. Had they performed the additional testing…he would still be alive.”

The medical malpractice lawsuit that has been filed in the matter is seeking a range of damages. Because the plaintiff in this case was rather young and was the family’s primary breadwinner, a large portion of the damages sought are lost earnings. As many local families know, when an individual in the household is unable to work—form injury, disability, or death—there is immense strain placed on the family. It is only fair and reasonable for those who caused the lost wages to provide redress to ease at least that portion of the family’s suffering. It is important for attorneys to ensure that all of these losses are taken into account as part of the recovery process.

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March 9, 2012

Hawaiian Doctor Sentenced to 12 Years in Prison for Malpractice


Observers have recently noticed that there has been a slight uptick in the number of doctors and other medical professionals who have faced criminal liability for their egregious medical malpractice. One of the more high-profile recent examples is that of the former doctor to Michael Jackson, Dr. Conrad Murray, who was found guilty last Novembers of involuntary manslaughter. In the aftermath of that guilty verdict some questioned whether the motivation behind the criminal charges was unfair. As Murray’s defense attorney asked, “If it were anybody else but Michael Jackson, would this doctor be here today?” Instead, the defense attorney suggested that the matter should have been heard by a state medical board—not a jury in a criminal case.

To be sure there is some prosecutorial discretion in all criminal cases—not just those related to medical malpractice. The criminal law system is very different from the civil system, with one of the main distinctions being that criminal cases are only brought forward when a prosecutorial team in the area decides to file charges. There is always potential to quibble with decisions made to prosecute or not to prosecute.

Each Chicago medical malpractice attorney at our firm often explains how, even when criminal charges are filed in these cases, the state (represented by the prosecutors) have an increased burden of proof—beyond a reasonable doubt. In addition, most criminal charges in these cases are some version of involuntary manslaughter or other form of misconduct where a heighted culpability element must be proven—often recklessness. In a civil medical malpractice lawsuit, plaintiffs must prove negligence. Negligence is essentially conduct that was done (or not done) which would have been done by a reasonable doctor. For criminal cases, however, the prosecutors must prove that the conduct was even worse than ordinary negligence—usually classified as recklessness or “criminal negligence.”

The increased culpability elements in the criminal charge and the higher burden of proof in criminal cases make them rare in the medical malpractice context. But they still do occur. For example, last week, the KHON News reported on a multiple year prison sentence for a Hawaiian doctor who recklessly prescribed prescription medication. The charges claimed that the doctor did not even see some patients for months but kept prescribing dangerous, controlled substances, like methadone. The reckless conduct put patients at risk and padded the doctors own pockets—often at the expense of public taxpayers. He was sentenced this week to over twelve years in jail for this conduct.

Our Illinois medical malpractice attorneys appreciate that while there may be a slight increase in use of the criminal justice system to hold these wrongdoers accountable, criminal charges clearly remain the very rare exception. At the end of the day, it falls upon those hurt by malpractice themselves and their families to come forward in the civil system to demand justice. Unlike criminal cases, there is no prosecutorial decision-making deciding whether a certain wrong should be pursued in the courts. Instead, the civil system is open to all community members—regardless of their situation—to seek justice against those whose carelessness cause them harm.

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March 8, 2012

New Approach to Medical Malpractice: Referring Injured to Lawyers


Two of the biggest complaints about the civil justice system are its cost and the time it takes to resolve an issue. Each Chicago medical malpractice lawyer at our firm shares those concerns. It is important for those involved in the system to always be looking at ways that they system could be made more cost effective and efficient. However, a big part of the problem in the hospital error context, is that many medical defendants do everything in their power to stall, delay, and challenge the suit as it makes its way toward a jury or bench trial. Most defendants in a medical malpractice lawsuit never want a judge or jury to hear the case, and so various tactics are used to get the suit thrown out of court early on or after evidence has been collected. All of these efforts are quite time-consuming and costly.
But it doesn’t have to be this way. A more open and honest approach taken when errors are made can go a long way to improving the justice system. However, it is important not to craft a system in the name of “honesty” that actually takes rights away from injured patients.

AMED News shared the story this week on one healthcare system that is trying to inject a little more honesty into the process by being proactive when concerns of medical negligence exist. According to officials with the system, when a mistake is made, the medical professionals immediately discuss it with the patient, work toward a potential resolution, and, when appropriate proposes a settlement. Interestingly, if the patient declines the settlement, the hospital shares with them the name and number of a medical malpractice lawyer.

This is an incredibly unique approach that, while having some potential benefits, also raises a few red flags regarding patients’ rights. For one thing, it is important for patients never to “settle” a dispute immediately offered by a hospital without consulting with proper advocates. It is impossible for injured patients to understand their legal rights and know the value of a settlement without having a legal advocate looking out for their exact interests.

In addition, while not automatically unfair, there may be some suspicions raised by hospitals that try to steer clients to specific attorneys. Of course, one assumes that the attorney will meet their ethical and professional responsibilities of utmost loyalty to the clients. However, when recommended specifically by the entity that will be forced to provide redress for an injury, there is clearly a strong whiff of conflict of interest.

As one medical malpractice attorney critical of the system speculates, “There’s a reason these attorneys are being referred by the hospital. What I suspect is that this is an attorney who doesn’t push the cases to trial and settles for lower amounts. Is that attorney going to make up the difference by going after the doctor?”

At the end of the day, no matter what system a hospital has in place, patients should remember that there is no better alternative than proper legal representation of their own choosing. If hospitals wish to make the legal process quicker and less costly, the best avenue is to avoid the prolonged legal battles that drag out the process more than necessary and offer fair settlements.

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March 7, 2012

Liability Risks of Electronic Medical Records in Emergency Rooms


AMED News published a story this week that takes yet another look at the potential for increased medical malpractice as a result of the switch from paper to electronic medical records. Our Chicago medical malpractice lawyers have been following this issue closely, because it is important to spread information about changes that might lead to medical problems before they occur so that patients can be on the lookout. When it comes to electronic medical records, especially during the transition periods, it is important for patients to remain active in the care that they receive to ensure that potential problems are caught.

The need to be aware of electronic records issues is rising, because the federal stimulus package places incentives on care providers to switch away from paper records. In order to spur a stronger health information technology infrastructure, these professionals can receive anywhere from $44,000 to $64,000 by switching over to electronic records.

While some bodies are predictably claiming that lawsuits will skyrocket and cause problems as a result of the switch (insurance companies), most reasonable observers understand that, with anything, the switch will be fine so long as managed reasonably. For example, one expert explained, “it’s all about the system that’s in place and the integrity of that system. You can only do what the system allows you to do. If you have a good system in place, then the doctors are protected—even from themselves.”

When proper care is used when interacting with the records, mix-ups and other problems can be avoided. For example, experts suggest that “cutting and pasting” within the records be minimized, because there is an increased risk of copying inaccurate information. Similarly, care must be used when switching between patient records. Doctors must also not become overly dependent on electronic diagnosis aids, because they often are not as comprehensive as necessary. Hands-on diagnosis remains paramount. Electronic should written just as thoroughly as paper records. For safety purposes, all records need to be encrypted and employees should be discouraged from taking portable devices out of the office which contain the data.

One issue that our Illinois medical malpractice lawyers understand is novel with electronic records is that risk of a data breaches. Medical records are private matters, and so medical professionals have a duty to act reasonably to keep that information safe from third-parties. This is still a very new area of the law, and most courts have yet to decide questions about doctor liability in medical breach cases. Contrary to typical medical malpractice suits involving physical harm to patients, in these cases, the plaintiffs are seeking recovery for potential economic losses.

The one case that has already gone to court on this issue was decided in the healthcare providers’ favor. In that case, a healthcare employee had a briefcase stolen from the car which contained the information. However, there was no indication in that case that the thief did or even planned to use the information inside. There was mixed evidence about what damage was caused to plaintiffs as a result of the theft.

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March 6, 2012

Hospital Faces Scrutiny Over 100 Pending Medical Malpractice Lawsuits


Medical malpractice trend lines are important to follow. Over the years each Chicago medical malpractice lawyer at our firm has gained an appreciation for the fact that certain caregivers and certain hospitals often commit medical errors at a far higher rate than others. This suggests that in many ways the worst caregivers make mistake after mistake while most medical professionals act reasonably at all times to ensure patients are not harmed by preventable errors. It also suggests that focused medical malpractice lawsuits which put pressure on the chronically negligent can go a long way toward allowing the public to identify facilities and medical professionals that they should avoid if possible.

For example, a story last week from NY Daily News discusses one city hospital that has a staggering 100 medical malpractice lawsuits pending against it. The lawsuits against the hospital have been filed by former patients and relatives of former patients who claim that their medical condition was made worse as a result of the care they received at the home. Many suits involved wrongful death claims, where surviving family members of patients suggest that the inadequate care provided by the hospital caused (or contributed) to their loved ones passing. The problem may be much worse than even these stats suggest, because for every case that is actually filed there are likely dozen more that simply don’t lead to a suit.

Of course, with over one hundred pending cases, plaintiffs are alleging a wide range of harms. In one case, the family of a mugging victim alleges that their loved one died because of inadequate emergency care when brought to the facility. In two other cases, patients developed pressure ulcers so severe that complications from the ulcers led to their deaths. Pressure ulcers (also known as bed sores or pressure sores) are virtually always preventable and are caused by the failure to reposition certain residents.

In another lawsuit, a patient with diabetes had a puncture would that got infected without treatment such that the patient’s toes had to be amputated. One suit claims that a patient was given penicillin even though she was wearing a bracelet that specifically indicated she was allergic to it. Yet another pending case involves a baby who suffered permanent brain damage and nervous system injuries as a result of allegedly shoddy care during childbirth.

One state assemblyman explained that the number of lawsuits pending against the home is “a very strong indication that something is definitely wrong with how the hospital is run.”

The hospital is facing money problems, having had $42 million in operating losses last year. Of course, those familiar with the situation have explained that providing inadequate care is a recipe for money problems. Unsafe hospitals are expensive. Beyond the ultimate need to keep patients safe, improving care is also coupled with financial savings. The executive director of the Center for Justice and Democracy explained that allowing repeated instances of care like this is simply unacceptable. She noted, “There are proven ways to clean up your act, patient safety improvements that are well known. It is pure negligence not to do them.”

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March 5, 2012

Hospice Firm Settles Medicare Fraud Case


Business is about making money. While many companies have strong values that guide their decision-making, the purpose of any business, by definition, it to make a profit for owners, shareholders, and others. The American economic engine is spurred by this basic principle. However, in some context this can cause a problem. Our Illinois medical malpractice lawyers believe this may be most evident in the context of medical care. When making a profit drives certain medical decisions, then real problems can arise for all medical consumers. It remains critical to watch out for the way these profit-incentives can enter the medical decision-making process and distort the underlying goal of necessary, safe, and needed care being provided to patients.

Distortions can be seen in many contexts. One of the most common involves providing unnecessary treatments solely because the medical providers will be getting paid for the treatment. For example, unnecessary heart stent procedures have made headlines in the last couple years. Many cardiologists have been charged with having patients undergo these risky operations when they did not actually need to do so. The long-term harm for the thousands of patients who have been hurt in this way is hard to calculate.

Each Illinois medical malpractice attorney at our firm knows that in other situations, the motivation can also lead to Medicare and Medicaid billing irregularities that can that can have federal criminal fraud implications. Take for instance, a recent settlement by a large national hospice care company. According to the Journal Sentinel, last week the organization agreed to pay $25 million to settle a fraud case against it. A former employee had come forward and explained that in her time there, the company was engaging in unscrupulous practices which prioritized billings over patient care needs.

Medicare, the government program for low-income and disabled residents, pays for 24-hour hospice care for individuals who are terminally ill. The money is supposed to be spent only in real crisis periods. However, the former employee explained that in order to bill the government for more funds, they engaged in a practice of enrolling patients who were not in this crisis period and recertifying patients who likely could have left the care.

Our Chicago medical malpractice attorneys appreciate that there are untold emotional costs with these actions that will likely never be fully understood. Having a loved one in hospice care sends a very clear message to both the individual and the family that the medical condition is dire. However, for many of these families, that emotional toll was for naught, because the actual hospice care was not needed.

This, of course, is on top of the bilking taken by taxpayers who are forced to foot the bill for unnecessary services. In fact, the cost to public coffers as a result of fraud and medical malpractice is often not given enough attention. The fact remains that the public pays for a large portion of healthcare via Medicare and Medicaid programs. When inadequate medical care is provided, the patients often require much more costly and prolonged medical care to try to minimize the consequences of the negligence. That extra care comes at a high cost, which is often borne by all us. Therefore, everyone has yet another reason to work to demand improvement in the level of medical care providing at area hospitals and clinics.

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March 4, 2012

State Supreme Court Case Explores Legal Duty Owed By Doctor to Family of Patients


The public often perceives the law as a static set of rules that applies to all situations without changing. However, those working the area understand that the law is actually a complex and changing set of rules, regulations, procedures, and general principles. As new cases arise and different arguments are made, those rules and principles are constantly being molded. Our Illinois medical malpractice attorneys appreciate that this is how the system has been able to provide justice in incredibly different times. Life was far different at the nation’s founding than it is now. However, the same basic legal system is intact, because it was able to slowly adapt to changes in society and culture.

The appellate courts at both the state and federal levels play the most important role in crafting these changes. When novel legal issues are raised, they usually end up being appealed to these higher courts which then set down specific rulings to guide lower courts when faced with that issue in future cases.

For example, the Salt Lake Tribune recently discussed a new issue related to medical malpractice and hospital care faced by the state’s Supreme Court. The issue in the case was the duty owed by medical professionals to the family of the patient’s that they treat. The lawsuit which spurred the decision was filed by the children of a woman who was shot to death by her husband. The husband was heavily medicated at the time of the attack. The suit alleges that the medical providers contributed to the woman’s death through their actions related to the care of the murderer. The heart of the suit suggests that the care providers knowingly prescribed antidepressants and other drugs which were known to carry a risk of psychiatric complications.

A lower court had dismissed the claim, essentially explaining that the children could not file a medical malpractice lawsuit because they themselves were not the patients (nor was their mother). However, the state’s Supreme Court recently reversed that decision and is allowing the case to proceed. In so doing, the court essentially steered the discussion away from specific medical malpractice and toward the potential liability under basic negligence principles. The Justice which wrote the opinion for the unanimous court noted, “Healthcare providers…are not entitled to an elevated status in tort law that would categorically immunize them from liability when their negligent prescriptions cause physical injury to nonpatients.” He went on to note that the law “upholds a duty of healthcare providers to nonpatients in the affirmative act of prescribing medication.”

Our Chicago medical malpractice attorneys understand the sound logic behind this ruling. It is important to remember that this does not mean that doctors are always liable for harm that their patients cause to others—in this case or future cases. This ruling simply allows this particular case to go forward. All similar cases will now at least be allowed to advance to the next stage of the process where more information is collected about what the medical care providers knew about the patient’s risk of harming others, what warnings were given about the effect of the medication, and similar issues.

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March 3, 2012

Do Cost Barriers Prevent Poor Patients from Suing for Medical Malpractice?


If tort reform advocates were to be believed, filing a lawsuit and getting redress for harm caused by medical malpractice is as easy as tying one’s shoe. Part of the public perception problem faced by medical malpractice lawyers seeking to warn about the dangers of these “reform” efforts that handcuff injury victims are mistaken assumptions about how the legal process actually works. There is nothing “easy” about running the legal gauntlet of filing a complaint, avoiding dismissal, spending time and money on the discovery process, getting to trial, convincing a jury of the merit of the case, winning the case, and then actually going through the hurdles of collecting the award.

Even before any extra roadblocks are put in the way via tort reform, the process is difficult for many community members. Unfortunately, in direct contrast to the notion that “justice is blind” and everyone has equal access to the court system, new scholarship suggests that access to justice may be harder for more vulnerable members of our community. Specifically, a new story in Health Day suggests that the poor are less likely to seek redress following medical errors. This is in stark contrast to the ridiculous notion put forward by many tort reformers that poor people think of lawsuits are a cheap way to make a buck. Each Illinois medical malpractice lawyer at our firm knows that those notions have zero bases in fact, and are incredibly harmful in that they lead to legislation that actually hurts these individuals even more.

The new study, lead by a doctor at the Monterey Orthopaedic and Sports Medicine Institute, involved researching litigation records and rates of medical malpractice claims compared across income spectrums. The report, published in an edition of the Clinical Orthopaedics and Related Research, found that the more income one has the more likely they are to sue their doctor for medical malpractice. In trying to pinpoint reasons for the discrepancy those involved explained that two primary factors may be: (1) the poor may not have enough money to initiate a suit; (2) they may have less access to or information about the legal process.

These findings run completely counter to the assumptions of many—including doctors themselves. The lead author explained that many physicians have an “unconscious bias” in which they assume lower income patients might be more likely to sue. As a result the actual treatments provided to those patients may be altered. Alternatively, some physicians may be prone not to treat certain patients at all for unfounded fear of litigation.

The authors of the study explained part of the solution includes disseminating more accurate information about the litigation rates and demographics. This will help these professionals to become a bit more culturally sensitive—understanding the hidden biases that they may have and figuring out ways to limit that bias. Summarizing the effort, the lead author explained that “Improving education and training for the delivery of culturally competent care […] can positively impact health disparities, the quality of medical care, physician satisfaction, and the incident of medical malpractice litigation.”

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March 2, 2012

Training to Sterilize Surgical Not Required


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The dangers of improperly sterilized medical equipment continue to make news. Our Chicago medical malpractice lawyers have discussed the surprising findings of several groups in recent weeks about the prevalence of improperly sterilized equipment being used in surgeries throughout the country. We shared the story of one man who lost the use of this shoulder (and consequently his arm) after getting an infection following what was supposed to be routine rotator cuff surgery. It was only later than the source of the problem was identified—dirty surgical equipment used during his procedure.

Last week, NBC Nightly News had a segment on a new investigation which raised even more concerns about the widespread problem of unsterile equipment and the way that it may be silently causing many surgical patients extreme hardship. In reporting on the story, NBC News partnered with the Center for Public Integrity to explore the problem of dirty surgical instruments being used by surgeons and causing contaminants to enter patient bodies. While it would seem like common sense for extreme cleanliness procedures to be followed at all times in hospitals (and particularly in surgical rooms), each medical malpractice attorney at our firm understands that cut-corners at some medical facilities in this regard continue to put patients at risk.

The NBC segment put shared the same story, interviewing the man’s whose life was turned upside down after his shoulder surgery went amiss. As reported in a new study from the Center for Public Integrity, the problems of dirty surgical tool being used is actually found with “alarming regularity.” Observers explain that the problem is rooted in lapses in care by those medical employees tasked with making sure these instruments are clean. As one hospital safety expert explained, “it is a job that cannot be given to robots because the robot doesn’t have the critical thinking to say that ‘this is still dirty.’”

However, even though the job of keeping these instruments clean is of the utmost importance, 49 out of 50 states—including Illinois—have zero training or certification requirements for those working in this area. Many are raising eyebrows at the lack of certification requirements. Considering that everyone from hair stylists to dog groomers requires licensing, it would seem that the same rules would apply to those dealing with tools that go into the bodies of vulnerable patients.

Of course, if an individual is hurt by the use of dirty surgical equipment, they are free to file a medical malpractice lawsuit and seek recovery for their injuries. But, obviously the far better option is to prevent these harms before they hurt unsuspecting patients. That is why it our Illinois medical malpractice lawyers are surprised that the U.S. Food and Drug Administration does not require hospitals to report instances of dirty surgical tools making their way into operating rooms. The fact that the errors do not need to be tracked is one reason why the problem has not received much attention. This is yet another indication of why private citizens who are victims of these sorts of mistakes must come forward and demand redress and accountable so that these institutions are forced to make chances that protect patients in the future.

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March 1, 2012

County Seeks to Settle Medical Malpractice Lawsuit After Failure to Diagnose Brain Injury


The Contra Costa Times reported this week on moves to settle a medical malpractice lawsuit that was filed against a public rehabilitation facility. The lawsuit stems from allegations that care workers at the facility did not provide a thorough examination to a man who suffered a serious fall. As a result, the man did not receive the timely medical care that he needed and suffered complications as a result. Each Chicago medical malpractice lawyer at our firm works on these types of situations frequently.

In this case the man was living at a rehabilitation facility. While in the bathroom at the home he slipped and fell—hitting the hard bathroom floor with his head. Staff members claim that they gave him a thorough examination after the fall to ensure that he did not suffer serious injury. However, it was later learned that the examination was far less than thorough. Eventually the man was discharged and allowed to go home. But it wasn’t long before he needed to be rushed to a hospital. That is because he was suffering bleeding on the brain as a result of the fall that he took in the bathroom of the rehabilitation center. He required extensive medical care and faced a serious of complications because he was not treated in at timely fashion following the fall.

The man subsequently filed a medical malpractice suit, alleging that the faulty examination led to the caregivers’ failure to diagnose his traumatic brain injury. Now the local government, which runs the rehabilitation center, is seeking to settle the lawsuit. The city’s Board of Directors are set to vote on the settlement this week. If the proposal is passed the man will receive $2.3 million for his losses. In addition, almost $200,000 in state Medicaid funds will be paid back and his $634,000 hospital bill will be waived.

Medical malpractice diagnosis problems essentially come in three forms: failure to diagnose, missed diagnosis, and delayed diagnosis. The complications to the patient are the same in each—they do not receive the care that they need to treat their medical condition. However, each version represents a slightly different type of mistake on the medical caregiver’s part.

(1) Failure to diagnose involves telling a patient that they do not have any major problem. As in this case, it usually ends up with the patient being sent home only to have more serious problems develop which require an emergency return trip to the hospital.

(2) In a missed diagnosis, the medical provider does not tell the patient that they have nothing wrong, but instead diagnoses them with the wrong ailment. In these situations the patient often receives treatments that they do not need or that do not address the underlying problem causing their suffering.

(3) Similarly, delayed diagnosis refers to cases where the medical providers gets the diagnosis correct eventually but should have done so earlier. In these cases, which often include cancer, the time delay creates serious problems for the patient.

No matter what version has occurred, local residents should know that an Illinois medical malpractice lawyer can help them seek redress and accountability if they have fallen victim to one of these diagnostic errors. These cases are often complex and hinge on expert testimony from those experienced in the field who can explain what was appropriate and inappropriate in any given situation. Please take a moment to reach out to our office if you think we can help.

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