Illinois Medical Malpractice Blog

The Roanoke Times reported this week on the end of a medical malpractice lawsuit stemming from complications during childbirth. The jury found in favor of the plaintiffs in the case, awarded them a significant sum for the serious, long-term injuries suffered by an infant. The funds will be used to pay for the close care that the child with need for the rest of her life. Each Illinois medical malpractice lawyer at our firm works on cases very similar to the one described here.

The Case

The family in this situation gave birth to their daughter in November of 2001. The mother in this case was diagnosed with gestational diabetes. This is not all that uncommon condition caused by pregnancy hormones interfering with insulin function. The condition presents problems such as nausea and increased risk of infection. However, when properly handled, those conditions can be managed without too much complication for the pregnancy.

One key part of managing the condition involves deciding the proper birthing method. Children born to mothers who have gestational diabetes are more likely to be born with higher than normal birth weight. Larger children may present more complications when born vaginally. That is why it is important for practitioners to advise mothers of the need to give birth via Caesarean section if the child’s health may be compromised by a vaginal birth.

The Birth

The expectant mother in this case had labor induced by her obstetrician. However, the lawsuit claimed that the doctor performed unnecessary medical treatments without the mother’s permission while still missing signs of complications in the baby.

As a result, the medical malpractice lawsuit alleged that the child was born with various injuries. She had dangerously low blood pressure at birth and had lost nearly one half of her entire blood supply. The girl’s kidneys were destroyed and she suffered oxygen deprivation resulting in a serious brain injury. The child now suffers from cerebral palsy. She has already had two kidney transplants.

The girl is now ten years old, and the family has already spent nearly $2 million on her care.

The Verdict

Following a trial on the merits of the case the jury returned a verdict for the plaintiff. The jury found that the involved medical professionals acted negligently, resulting in the preventable injuries. The family was awarded $9 million for the lifetime care she will need.

However, state law caps certain damage amounts arbitrarily, and so the family will likely receive far less than the amount awarded by the jury.

Legal Help is Available

Failure to order a timely Caesarean section is a common cause of preventable birth injuries. C-sections are not always necessary. However, our Illinois medical malpractice attorneys know that there are unfortunately many situations where medical professionals should have performed the surgical birth but did not—resulting in life-long problems for the child. If this has happened to you or someone you know, be sure to get in touch with legal professionals to learn how you may have legal recourse to receive resources to help with the child’s long-term care.

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Jury Awards $667,000 Following Medical Malpractice Lawsuit

Medical Malpractice Lawsuit Filed Over Hole in Bowel

Our Illinois medical malpractice attorneys appreciate that what virtually all local residents want in their medical care is quality. Community members expect and deserve that their medical professionals will act reasonably at all times to provide the best care possible. The reasonable cost of that care is hard to pinpoint, but it is safe to say that there should be a happy medium when it comes to medical finances: profit considerations should never influence what is done or how it is done.

An editorial in the Florida Times-Union delved into the confusing issues of medical quality and cost of care. The underlying principle in the article was that high costs do not automatically lead to better medical care. In fact, the argument is made that the current medical system—and its excessive costs—are not only making Americans poorer but sicker as well.

For one thing, the opinion begins by reiterating a point that each Illinois medical malpractice lawyer at our firm tries to share daily: medical treatment can actually cause more harm than good. Nearly 100,000 people die every year in the United States as a result of medical errors. Another 1 million Americans are injured because of medical mistakes. These stats include many different issues, from hospital acquired infections to surgical errors.

Obviously there are real physical consequences for these errors. On top of that, however, are the financial consequences.

The editorial argues that there are perverse incentives in some medical care, where costs are not controlled because the individuals who do the work have money to gain by performing more medical work—whether or not it is needed or logical in the circumstances. The incentives are further distorted because third-parties are responsible for paying in most cases.

There may finally be a shift toward greater public understanding of these issues and the need to increase the quality of care both to save money and make us healthier. For example, as our medical malpractice lawyers discussed a few months ago, some medical professionals are identifying treatments that are overused and often unnecessary. That includes repeat colonoscopies without warning factors, antibiotics for sinuses not caused by bacteria, and stress tests for the healthy.

One book on the topic goes over these issues in detail, entitled “Overtreated: Why Too Much Medicine is Making Us Sicker and Poorer.” In the book the author calls our current healthcare an “unfair, dysfunctional and spectacularly expensive system.”

A large part of the problem is the “fee-for-service” concept in most places. Doctors are financially rewarded for providing more care, regardless of whether the care is necessary or actually helps the patient. This problem is exacerbated with a proliferation of medical specialties. Instead of primary care physicians who act as patient advocates, more and more specialists are consulted which increase costs and increase the likelihood that specific treatments will be used, whether they are helpful or not. That is why the editorial argues that an important first step in improving the system is to encourage more primary care physicians to help act as an overall patient advocate.

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Nearly 100,000 Die Every Year From Hospital Acquired Infections

A Hospital’s First Priority: Do No Harm

Medical spas are unique settings where certain healthcare is provided in an environment that also blends in services offered at a day spa. These clinics are usually overseen by a medical doctor. The medical services provided at these facilities are usually cosmetic, handling things like skin brown spots, broken capillaries, skin redness, and laser treatments. Those services are often offered in addition to things like massages and other body treatments.

Our Illinois medical malpractice lawyers appreciate that because of the service provided at these facilities, there is a possibility that medical malpractice could strike those who visit these locations. We understand the because of the more relaxed nature of these facilities and the cosmetic nature of the procedures, there is often an assumption that there are fewer healthcare risks associated with the care.

But that is not necessarily true. As our Chicago medical malpractice attorneys have frequently explained, cosmetic operations can have very serious consequences, particularly when performed by medical professionals who fail to act reasonably.

That appears to be the case at a medical spa in Nevada. The state’s Board of Medical Examiner’s recently charged a physician’s assistant with medical malpractice for her work as owner and operator of a medical spa. Former employees of the facility have issued harsh words about the treatments provided at the facility. For example, one woman explained that “It was all for the money. It was so she could bill the insurance companies and collect the dollar.”

The latest complaint filed by the state’s medical regulatory board includes a list of counts. The charges allege that the owner treated patients for problems that they did not actually have. In addition, there are allegations that the patients were given the wrong drugs by the facility. On top of that, the board claims that patients medical records are very poorly kept, noting that they are “inaccurate, incomplete, incoherent, inconsistent and contradictory.”

The former employees detail a work-environment where patient needs were subservient to profit. One woman shared that no matter what symptoms a patient came in with, the goal was also to have the patient receive the most expensive treatment possible. The former employees recall being shocked as they slowly learned that no matter what the patient came in with—extreme hot flashes, hormone deficiencies, or the like—they virtually all received the same diagnosis. Hundreds of patients may have been unknowingly affected.

The problem was far beyond the clinic receiving money unnecessarily. There were very real consequences for the patients. For example, one 48-year woman had testosterone levels rise to 500% higher than normal as a result of the dangerous blanket treatment at the medical spa.

As a result of that story and others, the medical board issued its complaint against the clinic and its owner. They accuse the physician’s assistant of providing substandard medical care. Like all medical professionals, those working in these environments are required to act with the same level of reasonable skill, care, and knowledge as others in the profession. Failure to do so many result in regulatory complications as well as civil lawsuits filed by the individuals patients harmed.

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Medical Malpractice Occurs All Too Frequently in Cosmetic Surgery

Twist in Fraudulent Cosmetic Surgery Case

Boston.com recently shared information about a particularly horrifying new medical malpractice filed against of a school for juveniles with behavioral challenges. Critics have been concerned about the treatment at the facility for troubled youth for years, but it is only recently that some of the treatment methods at the facility have been legally challenged in the form of a medical malpractice suit.

Each Illinois medical malpractice attorneys at our firm was surprised to learn that the controversial school apparently engaged in shock therapy as a way to help the children. The story explains how the school continues to use “aversion therapy” that involves shocking the skin of teenage students. One teenager was apparently screaming in pain as the aversion therapy was applied. The male teen was given thirty separate shocks within a seven hour period while in restraints. In the aftermath of the “therapy” he had to be taken to a local children’s hospital where he was diagnosed with post-traumatic stress disorder.

The child in this case was later diagnosed with autism. He now lives in a state mental institution. A settlement was recently reached in the case, with the proceeds set to go to his long-term care.

These sorts of situations can spur medical malpractice cases, because even professionals providing treatments not received in a hospital are forced to abide by reasonable standards of care in their profession. That may include therapists, psychiatrists, and others.

Video evidence appeared a crucial component of this particular case. The Illinois injury lawyers at our firm know that more and more legal cases are hinging on video footage of certain conduct. More than at any time in the past, juries are able to see actual clips of the conduct at issue in the case. This is most common in negligence cases like slip and falls or nursing home abuse. However, as this case demonstrates, occasionally a medical malpractice lawsuit may also include video evidence.

In this particular case there is video footage of the teen being shocked. The video was shown to the court in the medical malpractice lawsuit filed by the mother of the teen on her son’s behalf. The footage allegedly shows the teen screaming as he was being shocked with electricity while in restraints.

This particular case has generated widespread community outrage. Apparently other videotapes exist showing other children at the facility receiving the same shock treatment. In one tape, the teens were shocked for a prank phone call that it was later learned they never actually made.

A petition signed by over 215,000 residents was recently submitted to state lawmakers seeking to force the school to stop its aversive therapy. For their part, school officials have long-tried to shield videos of the treatment from being made public. School officials apparently destroyed tapes in violation of the law. One former teacher at the school has already come forward to share information about the practices inside the institution and to raise a call for legislation to stop the abuses. It remains unclear if the lawsuit and petition will actual lead to any changes at the facility.

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Criminal Prosecutions for Medical Malpractice on the Rise

Dangerous Illinois Doctors Stripped of Licenses

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

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

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

A recent article at MedPage sets the record straight.

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

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

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

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

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Impartial Organizers Lining Up Against House Resolution 5

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

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

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

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

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

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

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

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

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Unclean Surgical Instruments Risking Lives in Operating Rooms

Hospital Blamed for Death from Legionnaires Disease

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Impartial Organizers Lining Up Against House Resolution 5

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

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

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

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

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

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

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

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

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

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Legal Experts Line Up Against H.R. 5

New Website to Voice Opinion on Proposed Federal Laws

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

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

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

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

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

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

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