September 2, 2013

Legal Obligations on Attending Physicians to Supervise Resident Physicians

by Levin & Perconti

So a doctor does not do what he should, breaches standards of care, and a patient is harmed. This is medical malpractice. Whether it is providing a wrong dose of medication, failing to catch a change in condition, or anything in between, when standards of care are not met and harm results, then a patient (and their family) can hold the negligent party accountable.

One complexity that exists in many medical malpractice cases relates to determining all parties which may have played a role. Medical care today is complex, there are different layers of oversight, specialists, and many different caregivers providing various services. When something goes wrong, many of them may have breached reasonable care standards.

Supervising Doctors Held Liable
For example, take even the basic issue of an attending physician who is overseeing a resident-doctor. “Residents” are new doctors who spend the first few years of their career treating patients with close oversight of more experienced professionals. This model of bringing in new doctors while protecting patient safety has long-been a part of American medical education.

However, in recent years there has been a push to enact more safeguards to ensure that patients are not unnecessarily harmed by the inexperienced doctors. For one thing, residents are known to work many long hours. Fatigue often plays a role in medical errors. Their difficult schedule, combined with inexperience, is a recipe for mistakes. To help curb the problem, recently the total hours resident doctors are allowed to work in various periods was curtailed.

Yet, even with the focus on safety, malpractice occurs. When it does, is just the resident doctor liable? The hospital? And what about the attending physician who was supervising the resident.

A recent article posted at AAOS.org offers a helpful discussion of these issues. Notably, the story points out that an attending physician can, in some cases, be vicariously liable for the mistake made by the younger doctor who he was supervising. In the past, some courts have found that the resident mistakes can be transferred to the attending physician when the resident was in the “sphere of control” of the older doctor.

This is similar to an employer being liable for an employee’s conduct while on the job. For example, a truck driver may be employed by a trucking company. If that driver runs a red light and causes and accident while making a delivery, then the trucking company can likely be held liable.

The same general principle applies to doctors and hospitals and resident doctors to attending doctors. However, as a practical matter, in most cases if the error occurs at a large hospital, the vicarious liability will only extend to the actual institution, not the individual supervising doctor.

The bottom line: any time malpractice occurs, many different parties may be involved in a subsequent lawsuit. It is important for all those involved in the care of a patient--including those in a supervising role--act reasonably to prioritize safety. When they fail to do so and a patient is hurt, then it is prudent to ensure accountability and redress.

See Other Blog Posts:

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January 18, 2013

Jury Finds for Defendant-Hospital in Birth Injury Case

by Levin & Perconti

Some legal researchers have identified that misconceptions about injury cases--including Illinois medical malpractice lawsuits--are often rooted in the way that the suits are covered by the media. In particular, the only time that a lawsuit reaches a mass audience is when the plaintiff wins the case, usually for a large amount. Other than that, most community members who do not file a suit themselves have little understanding of the overall dynamics of the legal system or the usual outcomes.

All of this leads to skewed public perceptions, with many thinking that most cases end with plaintiff’s winning millions of dollars after jury verdicts at trial. That is not at all the case. Instead, defendants are just as likely to win in these matter when brought to trial (the burden of proof is in their favor). And even when plaintiffs do win, the judgements are often nowhere near as large as those that make headlines.

Each Chicago medical malpractice lawyer at our firm understands the need to break those stereotypes. After all, false assumptions about the civil justice system has led many community members to mistakenly support legislative changes which take away rights of injury victims. The first step in reversing those misguided actions is presenting an honest picture of the civil justice system and its operation.

Defendant Wins at Trial
For one thing, when a case goes to trial--which does not happen all that often--the defendant is often in a better position than the plaintiff. That is not necessarily because the defendants are blameless. Instead it is because the burden of proof is on the plaintiff to explicitly show that misconduct occurred. That is often hard to do. In close calls, where a juror is split 50-50, then the defendant wins the case, because a “tie” goes to the defendant.

For example, the Dodge Globe recently broke the trend and reported on an actual defense victory in a birth injury cases where medical malpractice was alleged.

The issue in the case was whether a nurse breached a standard of care in delivering a child, which led to the child developing serious complications, including cerebral palsy. According to the story, the family went into the medical clinic in the small town when she was only 34 weeks pregnant. After about an hour, it became clear that the baby was in trouble, with heart rate problems which led to oxygen deprivation in the child’s brain.

As the complications mounted, the nurse called a doctor and asked the doctor to come to the hospital. However, the doctor did not come promptly. It was more than half an hour before he arrived. By that point, the serious problems had worsened. The doctor ordered an immediate C-section. It was lucky that the baby survived, as she did not breathe at all the first five minutes following her birth. She needed more than a month in the neonatal intensive care unit.

In a subsequent lawsuit the plaintiff alleged--along with an expert medical witness--that the standard of care was breached because the nurse did not notify another physician when the first did not arrive promptly. The medical chain of command should have been followed, which would have involved far quicker action and prevented the child’s serious, life-long injury.

However, the jury disagreed and returned a verdict in favor of the plaintiff. There were questions about whether the fact that the clinic was in a small town affected the jury’s determination of the appropriate standard of care. The jury verdict was appealed to the Court of Appeals as well as the state Supreme Court. However, at both levels the court affirmed the trial court’s decision.

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November 26, 2012

Med Mal Lawsuit Filed Against Nurses Following Newborn Smothering Death

by Levin & Perconti

It is a story out of a mother's nightmare. A woman gives birth to a healthy child. As is customary, the nurses take the child and eventually let the mother bond with her new addition for the first time. They wrap the baby in blankets and place her in her mother's arms. This is a one of those moments that a mother never forgets...cuddling her newborn for the first time, dreaming about where life will take the little bundle in the years and decades ahead. Exhausted after the grueling labor, the mother slowly drifts into a sleep while holding her baby.

She awakes later to horror. The child is still in her arms, but the young girl is not breathing. She died as a result of co-sleeping--being smothered without the ability to breathe.

This tragedy seems like something from a movie, but a similar story has lead to a recent medical malpractice lawsuit filed against a team of nurses.

Malpractice Lawsuit in Baby's Death
A brief report on the new suit was published by NBC 2 Online. The report explains that a mother was heavily medicated while in the hospital after giving birth to her new daughter. The mother was given the baby to breast feed. According to the story, the mother told the nurses to come back and take the baby after she was finished. However, the nurses did not in fact come back for the child.

As a result of the medication, the mother claims that she dozed off while holding the newborn. She then awoke to find that the child in her arms was dead. It was only later that a medical examiner confirmed that the baby was smothered to death, caused by "co-sleeping" with her mother. Of course, infants are quite vulnerable and even brief pressure or being caught in certain areas can result in serious injuries like this one. It is an incredibly tragic reminder of the need to act with the utmost care at all times when dealing with young children.

The subseuquent lawsuit in the case raises some interesting legal principles. Should the nurses be held liable for the wrongful death?

As with all negligence cases, the law hinges on the reasonableness of the defendant's conduct. Did they do something (or fail to do something) that a reasonable professional in the same circumstances would have done? In this case, that essentially means would a reasonable team of nurses have taken the child from the mother, checked more frequently, or not given the child to the mother at all considering the effect of the medication? If the standards of care in the profession were otherwise, then the nurses may be found liable for negligence and be held accountable for the tragedy. However, if the nurses' protocol was standard, then it will be hard for the mother to win the case.

As a practical matter, much will come down to specific details as they were documented in the case. How long did the mother have the child? How much medication was she on and who knew about it? Did the nurses check on the breastfeeding mother? If so, at what intervals? How was the baby positioned with the mother and what blankets were used? All of these details affected the tragedy and therefore determine unreasonable conduct that could have caused the death.

See Our Related Blog Posts:
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Medical Malpractice Verdict for Plaintiff Against Obstetrician

February 8, 2011

Autopsy Mistakes--Little Known Form of Medical Malpractice

by Levin & Perconti

A common assumption is that medical mistakes involve poor care by doctors at hospitals that lead to patients suffering physical and emotional pain. Thousands of Chicago medical malpractice victims are proof of that reality.

However, as California Watch explained in a story this weekend, there is another area in the medical industry where costly mistakes are often made—the autopsy room. The problems of autopsy errors appear to be growing as coroners begin hiring private firms to assist with the workload. Those firms are often shown to make ghastly errors. The mistakes include dissecting the wrong body and giving inaccurate testimony about their findings at trials.

The investigation into the private autopsy world has shown that rushed caseloads are a primary reason for the problems. The situation highlights the danger of a focus on profit maximization. Some private autopsy companies conduct three autopsies in a single hour, with some employees performing nine in a single shift. Experts in the industry explain that those numbers are very high, leading to rushing and mistakes.

In addition there are concerns about the type of employees that work at these locations. Some of the employees include physicians who were fired from pubic autopsy agencies for poor work. Their hiring by private companies provides these substandard physicians with more opportunities to make mistakes and harm lives.

One expert explained, “They [private medical group employees] are not being vetted in terms of their backgrounds, their skills, their ability. You hire a company, and you take the company as a whole. And you never know what you’re getting.”

The concerns about these autopsies have important ramifications on many areas. Judges, juries, lawyers, and family members all rely on the actions of these groups to help piece together the causes of many deaths. If the findings of these autopsies are the product of poor medical expertise, than there is much cause for concern.

Continue reading "Autopsy Mistakes--Little Known Form of Medical Malpractice" »

August 15, 2009

Mother Bleeds to Death After Birth

by Levin & Perconti

A woman went to a hospital expecting a normal vaginal delivery. However after 10 hours of labor she needed a cesarean section and began bleeding internally after her uterine arteries were torn or cut during the surgery. According to her medical malpractice lawsuit she bled to death after the attending physician and obstetrician argued as to how to treat her. They could not determine whether the victim was bleeding internally and whether they should reopen her abdominal incision to evaluate. The victim had lost more than 3 quarts of blood during the surgery which accounted for 60 percent of the total blood volume in her body. The medical malpractice lawsuit claims that the doctors and hospital botched what should have been done in a routine birth. When the victim entered the hospital she was healthy and had a problem-free, full-term pregnancy. The doctor’s were quoted in an affidavit stating that there was understaffing in the surgical care unit. Both the hospital and doctors deny any medical malpractice. To read more about the mother’s death, please click the link.

January 9, 2009

Suit Alleges that Doctor Refused Patient’s Request

by Levin & Perconti

A woman is filing suit against a doctor and Rush University Medical Center in Chicago alleging that the obstetrician who delivered her baby was verbally abusive and deliberately tried to hurt her. The suit claims that the doctor stated that the mother “deserved to feel pain because she had not called before coming in and that ‘sometimes pain is the best teacher.’” The suit additionally alleges that the doctor told the mother to “shut up, close your mouth and push” when she tried to ask question. He also told her that she might hemorrhage during birth and that the baby might die, causing both mother and father great emotional distress. Rush University has placed the doctor on indefinite probation following an internal investigation. The mother delivered a health baby girl. To read the full story, click here.

December 10, 2008

New standards for medical residents’ hours need regulations for enforcement

by Levin & Perconti

A recent New York Times article examined recent programs calling for lightened hours for medical residents. The Times piece says that for the standards to be enforced, they need regulations. The panel proposed that residents or no more than 16 hours straight and that every 30-hour shift needs a five-hour sleep break after 16 hours. Such regulations would be great and likely lower rates of medical malpractice and surgical error.

For the full article.

December 1, 2008

Illinois Medical Malpractice Lawsuit Brings Marion VA Medical Center Surgeons under Fire

by Levin & Perconti

The widow of a man who died following gall bladder surgery at the Marion VA Medical Center has accepted a settlement of almost $1 million. The medical malpractice lawsuit alleged that the hospital was negligent in treating the man and that it failed to perform an adequate background check prior to hiring Dr. Jose Veizaga-Mendez, the surgeon who performed the operation, resulting in the man’s wrongful death. The Chicago Tribune reported last year that Veizaga-Mendez had been operating on veterans at the Downstate hospital for more than a year after surrendering his license in Massachusetts in a disciplinary proceeding that accused him of providing “grossly substandard care” that caused his patients to suffer serious complications and death.

The Veterans Health Administration medical inspector and the inspector general of the Department of Veterans Affairs have reported that, during a 2-year period ending September 2007, 9 patients have died from substandard care at the Marion VA Medical Center, while 34 others have been seriously injured. Disciplinary actions have been taken against 6 of the facility's surgeons and several other employees.

To read the full story, click here.

September 9, 2008

Hospital Employee Sexually Abuses Patients

by Levin & Perconti

A hospital and their employee is the center of a lawsuit which alleges he fondled and touched the genitals of two male patients. The employee has pending misdemeanor battery charges after he informed the patients that his actions were necessary for medical purposes when in fact they were sexual in nature and outside his job description. The hospital is accused of being negligent. It was the state agency who issued an order for an emergency suspension of Collins’ license. According to the lawsuit, the hospital didn’t take “reasonable or prudent steps” to investigate the first patient’s claims and did not remove the employee from interacting with patients. Since the lawsuit, other patients have reported sexual misconduct by the hospital employee. To read the full story, click here.

September 2, 2008

Maternity Care Quality in Crisis

by Levin & Perconti

Maternity wards across America are closing, causing those that remain open to incur a deluge of new patients. This causes a strain on their ability to meet the needs of those individuals. The combination of both is putting women and children at risk. There are three major factors for there closures: low medical insurance and reimbursements to hospitals for maternity care; the high cost of medical liability insurance for OB-GYNs, and retiring OB-GYNs. Medical Centers are losing money for maternity patients because of the low reimbursement rates from Medicaid. Retiring OB-GYNs cause women to search for qualified specialists. These factors leave women and children at risk. Women need to have close maternity wards in order to ensure safety for both mother and child. To read the full story, click here.

July 2, 2008

Woman Dead After Being Ignored in a Hospital

by Levin & Perconti

Surveillance footage from a hospital shows a woman falling from a chair, writhing on the floor, and, finally, dying, as workers fail to react for over an hour. Esmin Green, 49, waited in the emergency room for almost 24 hours until she fell face down on the floor from the chair she was sitting in. She fell at 5:32 a.m., by 6:35 a.m., when a medical staff member who was flagged down by another person in the waiting room nudged Green’s body with her foot, she was dead. Until that staffer was summoned, Green hardly drew any attention. Patients sitting nearby did not react at all, security guards and a hospital staff member seemed to have noticed her body a minimum of three times, but, from the video, it does not appear that any of them attempted to aid her. In fact, one security guard could not even be bothered to leave his chair, instead, he rolled it around the corner, stared at her body, then rolled it back. Green had been involuntarily committed the day before the incident and was still waiting for a bed when she fell; her body stopped moving approximately half an hour after she fell. Reportedly six people have been fired because of the incident, amongst those let go are security personnel and staff members.

This is not the first issue with the hospital’s mental health unit, which was sued last year by the state’s Mental Hygiene Legal Service and Civil Liberties Union, who called the unit “a chamber of filth, decay, indifference and danger.” The lawsuit further states that patients who complained too much were occasionally handcuffed, beaten, or injected with psychotropic drugs. The parties in that suit went before a judge on Tuesday where the hospital agreed to institute reforms, including checking on patients in the waiting room every 15 minutes. Additionally, the hospital will make attempts to shorten the average waiting time to 10 hours within the next four months.

Adding to the shocking situation is the fact that Green’s medical records appear to have been altered or falsely filled out in an attempt to cover up the incident. For example, there is a note for 6 a.m. that claims she was “awake, up and about” and another 20 minutes later claiming she was sitting in the waiting room and that her blood pressure was normal, in actuality, Green was either dead or writhing on the floor during those times.

It is unclear whether Green’s family will seek to file a wrongful death lawsuit for this apparent medical malpractice. To read more about Green's shocking death click here.

April 30, 2008

Patients and Victims of Medical Malpractice See Huge Delays in Medical Records Processing

by Levin & Perconti

One of the greatest organizational problems facing hospitals today is the battle over medical records. Many patients find that it can take months or years to get a hold of their own medical records after treatment. Even worse, some families of victims of medical malpractice or wrongful death have waited for years to obtain their loved one’s medical records from hospitals. Often, lost or missing records are simply part of hospital error and not a deliberate attempt to delay, but on some occasions hospitals may frustrate a patient’s records request purposefully. Patients and victims’ families must be aware that statutes of limitation often require that medical malpractice lawsuits be filed within a certain period of time after the injury occurs or is discovered. This means that patients and victims’ families must decide to file a medical malpractice lawsuit and contact their medical malpractice attorney as soon as possible and begin the medical records request process.

Read more here.

April 18, 2008

Seniors Will Soon Drive the US Healthcare Market; Doctors in Short Supply

by Levin & Perconti

By 2030, one of every five Americans will be over the age of 65 and nearly half of all medical care spending will go to seniors. However, the US health care market is not positioned to meet the needs of this ever expanding group. The consequences of an understaffed and under-trained geriatric health care workforce could mean a sharp increase in the number of medical malpractice lawsuits and medical injury lawsuits in the future. A recent article highlights the shortcomings of the geriatric health care system, noting that doctors who serve senior patients make less than their internist counterparts and that geriatric specialists have decreased in number by nearly 25%. To meet the new demand for geriatric health services, the US needs to add 3.5 million people to the geriatric health care workforce in the next twenty years. Without necessary staff and salary increases, seniors could face tough choices in selecting a quality health care provider and avoiding injury in the doctor’s office.

Read the full article here.

April 12, 2008

Doctor-addicts continue to treat patients

by Levin & Perconti

CNN recently highlighted the danger that addicted doctors are still treating patients. One patient says she had to forgo cancer treatment because of a botched surgery by a doctor who was in treatment for alcoholism and had been convicted for driving under the influence of alcohol. She had to forgo cancer treatment while battling complications from the medical malpractice. Now she is dying of cancer. She sued the doctor in a medical malpractice lawsuit. While he did not admit fault, he settled with her for $250,000.

A study by the Federation of State Physician Health Programs found about one percent of all physicians practicing in the U.S. are in confidential treatment. That’s about 8,000 doctors whose patients may have no idea that they are addicts. This brings us back to the importance of researching your doctor!

For the full article.

January 16, 2008

To improve patient safety in hospitals, Illinois needs to implement a nurse to patient ratio law

by Levin & Perconti

Illinois is one of the few states where the National Nurses Organizing Committee has sponsored a proposed bill to impose mandatory nurse to patient ratios. California has been experimenting with a hospital staffing law with revolutionary results in recent years. The improvement in patient safety has been drastic. The ratios are a minimum standard; hospitals are encouraged to go above and beyond the mandate. The ratios differ by hospital area, but none are higher than 1 RN for every five patients in general units or patients in post-surgical care, 1:4 for pediatric units and in the emergency room.

The important results of the law are plentiful, according to a member of the NNOC's Council of Presidents. "Lives are being saved, our ability to be effective advocates for our patients is stronger, and more RNs are entering the work force and staying at the bedside longer, mitigating the nursing shortage." A nurse explained that because they have more time to dedicate to individual patients they have time to check patients' charts and maintain records, preventing treatment delays and medical mistakes, and that there is more time to teach patients and families about their situation so that they won't have to return to the hospital for any complications.

Click here for the full article

Continue reading "To improve patient safety in hospitals, Illinois needs to implement a nurse to patient ratio law " »

January 14, 2008

Hospital conduct leads to reduced patient safety and medical malpractice lawsuits

by Levin & Perconti

In a recent medical malpractice lawsuit, a birth injury that was allegedly caused by a nurse-doctor communication breakdown yielded a $1.2 million settlement. Nurses were concerned that the birth was taking too long, but were hesitant to consult the doctor about these fears due to his reputation of angry responses to perceived criticism. The infant developed cerebral palsy.

Physicians too commonly react harshly to instances where they feel bothered by the nursing staff, such as late-night clarification requests, difficulties with procedures, changes in patient condition and more. The negative consequences of verbal abuse or disruption in hospitals are significant; reduced communication, team collaboration, information transfer and concentration are all reported as responses to disruptive behavior. Patient safety is compromised in many ways by these reported breakdowns. Medical errors increase in disruptive or abusive situations and the quality of care decreases. Patient mortality increases with these outbursts. Medication errors have also been caused by verbally abusive hospital staff relations.

Click here for the full article

Continue reading "Hospital conduct leads to reduced patient safety and medical malpractice lawsuits" »

September 25, 2007

Illinois Senators demand answers from Marion VA Hospital

by Levin & Perconti

Illinois Senators Obama and Durbin believe that that conduct of a Southern Illinois VA hospital has been "extremely distressing." In July 2006, Jose Veizaga-Mendez had to surrender his license to practice medicine in the state of Massachusetts. A state regulatory board had investigated Veizaga-Mendez and found that he had provided unacceptable care to seven patients. Then, Veizaga-Mendez made his way to Illinois and was hired as a surgeon by a VA hospital in Southern Illinois. At that point, the VA hospital experienced a sudden increase in post-surgical deaths. Although Veizaga-Mendez has since resigned, Senators Obama and Durbin have written a letter to the VA Secretary, James Nicholson, demanding answers on how this man was hired.

Click here for the full article

July 10, 2007

Stroger Hospital losing doctors due to staffing shortages and low morale

by Levin & Perconti

A recent survey of physicians at the Stroger Hospital in Chicago, Illinois has revealed overwhelming dissatisfaction with the hospital, leading to low morale and an exodus of doctors. Doctors cited a lack of funding for their low morale, as budget crunches have led to layoffs and have created a scarcity of resources. As a result, many of the doctors are leaving the hospital or are making plans to do so. Only one third of the physicians polled stated that they planned to stay. The survey also revealed that the conditions of Stroger Hospital prevented them from delivering a quality of care that they would consider excellent or very good. In response, the county administrators plan to do a better job of informing the physicians of the positive changes taking place at the hospital.

Click here for the full article.

June 1, 2007

Medical errors multiply during the night shift

by Levin & Perconti

A recent HealthGrades study revelaed that 248,000 patient deaths over a three-year period were preventable, and mistakes multiply during the night shift. Every type of patient is at danger during the night.

Studies have shown that babies born at night are 16% more likely to die than babies born during the day. Patients going into cardiac arrest at night were also more likely to die. Pediatric patients admitted at night are more likely to die within two days. The risks appear even more serious when birth injuries and pediatric injuries also occur preventably. Medication administration errors also multiply at night. Weekends are also dangerous for patients.

Because workers with seniority get priority shifts, night time staffers are not only fewer, but less experienced. Night staffing issues are not limited to doctors and nurses; mental health, social services, directors, and administrators are also understaffed on the night shift. Not only are night workers less experienced, they also suffer from fatigue- a major contributor to night shift errors.

Beware of the danger that medical errors are more frequently made at night. Click here to read the full article, including a personal account of a preventable death occuring during the night shift.

December 21, 2006

Study: long hospital shifts and sleep deprivation makes medical malpractice more likely

by Levin & Perconti

A recent study showed that sleep-deprived doctors are at a high risk of making medical malpractice mistakes that harm or even kill patients. Why then are medical residents routinely scheduled to work shifts that last 24 hours or more? The study showed that people who stay awake for 18 hours straight can have trouble thinking clearly and can zone out or nod off suddenly.

For the full article.