Illinois Medical Malpractice Blog

The Medical Board in one state decided to post medical malpractice payouts on its website, but doing so has been met with opposition. The Board, who licenses and disciplines 22,000 doctors who practice in the state proposed displaying all malpractice payouts going seven years back. This last proposal comes as part of an overall effort to inform patients about their doctors. The state at hand is not alone in its proposal, 25 other states have done similar things. The people who oppose it, of course, are doctors and hospital, medical malpractice insurers, and defense attorneys, who dislike the rule in general, and the seven year retroactivity in particular. The Board’s legal director, however, says that only one state who has similarly posted retroactively has faced a challenge, and that challenge failed. Last year the state legislature gave the Board approval to post the payouts, but also gave the Board free reign in deciding how to do so. The final decision will be made next month.

Posting medical malpractice payouts also has proponents, like Wanda Nicholson, who husband was partially paralyzed in his foot after a spine surgery. Wanda had checked the Board’s existing file regarding the doctor before the surgery, but found nothing bad. After the surgery, Wanda found out that the doctor had had issues with other patients, and some patients may have even filed medical malpractice lawsuits. Read more about the website medical malpractice postings here.

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

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

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

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The Medicare program may soon stop paying for more medical care that comes as a result of hospital error. In an effort to encourage hospitals to improve their patient care and avoid medical malpractice lawsuits, hospital infections, and hospital patient injury, Medicare announced last year that it would stop funding certain procedures and treatments. Now Medicare has added more potential preventable errors to the list.

Medicare may stop funding for these common hospital errors and preventable injuries:
-Surgical site infections following certain elective procedures
-Deep vein thrombosis/Pulmonary Embolism
-Legionnaires’ disease
-Extreme blood sugar derangement
-Lung Collapse resulting from medical treatment
-Ventilator-associated pneumonia
-Delirium
-Staph infection in the bloodstream
-Disease associated with Clostridium difficile infection

Medicare’s logic is that hospitals will stop making preventable errors and preventable patient injuries if the hospital won’t get paid for the error. Hospitals used to be paid for every consult and procedure but Medicare believes that not funding for preventable error will encourage hospitals to improve patient care to protect their bottom line.

Read more on these proposed changes here.

Policymakers are considering instituting a state-sponsored indemnity fund that would pay the future medical bills of injured patients, effectively shielding all physicians, hospitals, and medical staff from any liability for medical malpractice and negligence. Many groups, including the Center for Justice & Democracy, the Center for Medical Consumers, and various public interest research groups have criticized the proposal for crippling the rights of patients. Not only would the proposal’s benefits apply to insurance companies, physicians, and hospitals, but it would likely pass the cost of the indemnity fund to the average patient by increasing medical expenses.

The proposal has also been criticized by many that would directly benefit, including insurance companies, on the grounds that the harms would be too widespread. Even if successfully implemented, the fund would likely fail to compensate victims of medical malpractice and negligence even for their medical bills. Ultimately, the proposal allows the real wrongdoers to escape any liability.

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Four years ago, an investigation concluded that it was easier for consumers to find out information about their building contractors than for patients to get information about their doctors. In response, the Nevada Board of Medical Examiners promised to enhance its website to inform the public about doctors. But recently, the board removed medical malpractice lawsuit settlement and judgment information from the doctors’ online records. One State Senator stated that the statute covering the website was not very specific, but added “if we have to spell it out, then we’ll spell it out.”

People should have a right to the medical malpractice history of their doctors to make better informed decisions. Any board hindrance on consumer research into their own health care is unacceptable.

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An amendment to the Illinois Consumer Fraud and Deceptive Business Practices Act failed to move past committee as the bill sought to limit the rights of injured persons, including many affected by medical malpractice and negligence. The amendment provided that the Act would “not apply to claims seeking damages for conduct that results in bodily injury, death, or damage to property other than the property that is the subject” of the unlawful practice. Effectively, this amendment would have increased the ease with which businesses, including hospitals, could defraud and deceive their customers, including through misrepresentation or concealment of a material fact. The fact that the amendment failed to reach the Senate floor suggests that the legislature valued the rights of individuals above the rights of companies to defraud consumers through such techniques as bait and switch advertising and the misrepresentation of a product’s effectiveness.

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An Illinois Appellate Court once again limited the rights of wronged patients in medical malpractice and negligence cases by affirming a trial court’s grant of summary judgment under the Illinois Tort Immunity Act. The court determined that the Tort Immunity Act immunizes a defendant for failing to make an adequate examination and for a failure to diagnose an illness.

In this case, due to the failure of the hospital staff to diagnose a precancerous condition or cancer, a woman died from cervical cancer. Physicians had diagnosed her with a vaginal infection, but it nearly six months to discover her cancer, at which point it was too late. The plaintiff argued that the lack of a follow-up pap smear constituted negligence related to the treatment of her vaginal infection, not her diagnosis because a repeat pap smear should have been part of her treatment plan. Had the follow-up pap smear been conducted, physicians may have discovered and treated the cancer.

This case limits the rights of patients because it immunizes physicians failure to diagnose where the diagnosis should have been a natural result of a prior treatment plan. Physicians should have held accountable where diagnosis and treatment are so intertwined, especially where the failure to diagnose directly leads to a patient’s death.

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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.

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The Illinois Hospital Report Card, the Illinois Consumer Guide to Health Care and another project meant to monitor medical malpractice issues in Illinois hospitals were groundbreaking and exciting initiatives passed in the state in the last four years. However, not much has been done to follow through on these laws. The Chicago Patient Safety Forum has been a strong critic of the delays in implementation even though last year's Patient Safety Summit in Chicago produced few results. The purpose of the laws was to provide the public with information about their doctors and the medical mistakes they make as well as the hospitals and issues like hospital-acquired infections.

One goal of this legislation was to examine instances of medical malpractice such as birth injuries and surgical errors. The Illinois Hospital Report Card was meant to monitor hospital-acquired infections and if the hospitals are adequately screening patients. It also was to focus on the quality and skills of nursing staffs. The lack of progress has been blamed on problems with the legislation itself, a lack of funding and staff, and bureaucratic delays. Legislators and other officials alike, such as the Illinois Hospital Association, have stated that patients have the right to be informed about their doctors and hospitals.

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The mother of a 22-year-old victim of medical malpractice has recently sponsored a new law requiring doctors to make past medical malpractice settlements and verdicts against them public. The mother claims that her son was given an unnecessary surgery causing a brain injury that made him partly-paralyzed, half-blind and psychotic after his brain was jostled by the neurosurgeon. The surgeon claimed that the patient would make a full recovery after rehab but his injuries ultimately resulted in his death. When the patient's mother learned that the surgeon had done the procedure only once before and had a malpractice settlement and claims in another state, she decided to take action. The law stipulates that only settlements or final judgments will be publicized on the internet database. The Colorado bill was passed into law in early January 2008.

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Illinois participated in the nation-wide trend to pass legislation making it mandatory to publish health care "report cards" disclosing information about hospital acquired infections and medical malpractice. But while over a dozen states have begun posting the information on the internet, Illinois has yet to move forward with the initiative. Many states publish more specific report cards dealing with "never events," or mistakes that should never happen, but do. Some examples of "never events" include performing surgery on the wrong patient or body part and other inexcusable examples of negligence. Illinois plans to publish a report, but progress has yet to be seen.

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The Centers for Medicare and Medicaid Services (CMS) has announced officially that beginning in October 2008 expenses incurred from medical mistakes made by health care providers will no longer be eligible for reimbursement. Providers will also be prohibited from charging patients for these expenses. Private insurers will likely follow suit. Medical malpractice is a pervasive problem for health care in Illinois and in America as a whole. Each year, 1.5 million patients are injured and thousands die from medical errors. The expenses resulting from these mistakes add up, averaging about $29 billion in additional care services and loss of productivity. It is yet to be determined how CMS will determine what the appropriate standard of care is, and it will also have to define "preventable errors" in cases of medical malpractice.

The debate surrounding “tort reform” and medical malpractice caps is heating up again after a Cook County judge declared capping certain damages for patients unconstitutional. In 2005, an Illinois state law was enacted that narrowly limited medical malpractice lawsuit awards for non-economic damages for pain and suffering. The law limited the damages to $1 million for hospitals and $500,000 for physicians. There is no ceiling for damages regarding medical care and lost wages, which typically make up the highest part of the award.

“Tort reform” advocates claim that medical malpractice caps encourage more doctors to practice in the State. However, as we know, high insurance premiums are driven by greedy insurance companies. The Illinois State Supreme Court will rule on the issue.

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Like many state legislatures, the Illinois state legislature is being pressured to enact verdict caps on medical malpractice claims filed against doctors and hospitals. While there are examples of outrageous verdicts being granted by juries, most of these verdicts are dealt with within the judicial system by simple motions and orders of the court. Verdict caps, on the other hand, seek to silence juries on the issue of medical malpractice by mandating certain levels of awards no matter how egregious the act or consequences.

For a discussion on lobbying effort in other states, click here.

The Illinois Supreme Court has recently approved local rules that would require mediation for medical malpractice claims in Madison County. The rules also require that mediation occur within 90 days after all depositions in a case were taken. In addition, the Madison County rules enable the creation of a Circuit Review panel, composed of local judges, who must approve the medical malpractice claim before it can go to mediation. Finally, the rules also set out strict limits on 2-622 affidavits. If a medical malpractice claim does not have the required health professional’s report indicating that the claim is legitimate, the plaintiff has 45 days to obtain one or else forfeit the case.

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The Illinois legislature has passed, and the governor has signed, legislation requiring the screening of hospital patients for drug-resistant staph infections. The MRSA (methicillin resistant staphylococcus aureus) infections infect over a million patients and kill tens of thousands every year. MRSA is the most common infection acquired in hospitals and Illinois is leading the nation in confronting the controversial issue. The law becomes effective immediately. Hospitals are now required to test all patients in intensive care units for MRSA and isolate patients with the bacteria. The bill was controversial because some hospital infection control practitioners claimed it would hinder response times to emergency threats. The same group introduced legislation requiring hospitals to prevent the spread of infection by analyzing which infections posed the most risks at different facilities. Although this bill was intended to replace the MRSA bill, both were passed into law. Fortunately for patients, the bills are aimed at protecting patients from unnecessarily contracting dangerous infections in hospitals.

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A medical malpractice lawsuit involving a botched delivery resulting in brain damage to the newborn has been brought in front of a Cook County, Illinois judge. This lawsuit is significant in the state of Illinois. The baby's attorney is claiming that the caps placed on medical malpractice lawsuits for pain and suffering ($500,000 for doctors, $1,000,000 for hospitals) are not sufficient in a case such as this one. The law imposing caps on pain and suffering awards was signed into law two years ago. The law was in response to increasing medical malpractice insurance rates for doctors. Although the solution was based on the caps, insurance rates have been stabilizing or falling even though most cases affected by the law have not yet reached a verdict or settlement. This case will face a long appeals process regardless of the ruling in the Cook County court. The baby's lawyers will aim to prove the unconstitutionality of this law by proving that in an instance like this, when a child is unnecessarily and permanently brain damaged due to a preventable medical mistake, the caps do not offer fair compensation.

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