Illinois Medical Malpractice Blog

We have frequently mentioned the arbitrary nature and illogical outcomes produced by medical malpractice damage caps. NBC 2 News reported on a medical malpractice lawsuit that highlights those damaging effects created when the victims of medical errors have rights ignored.

A family filed a medical malpractice lawsuit after a medical error caused severe injury to their young daughter. Three years ago a hospital negligently prescribed a dose of nutrients 100 times stronger than necessary. The little infant’s frail body could not handle the massive intake. The young girl suffered cardiac arrest—she is now blind and suffers from cerebral palsy.

After hearing all of the evidence about the error, the losses suffered by the family, and the future expenses that will be required, a jury found the hospital guilty of malpractice. The community members awarded the family $19.2 million dollars. However, because of liability malpractice caps, that award to pay for the young girls care may be cut by a staggering 90%. The joint decision of neutral community members on the appropriate remedy for the situation is virtually ignored at the expense of those caring for the young girl.

If recently proposed federal legislation known as H.R. 5 is approved, than all Illinois medical malpractice victims will suffer the same erosion of rights. It represents a misguided, unnecessary, illogical shift in power away from victims and toward negligent big interests. All those interested in justice must stand in opposition.

Continue reading "Medical Malpractice Verdict Highlights Problems With Malpractice Caps" »

Often it is difficult to put malpractice caps into perspective in the abstract—personal stories of grievous loss caused by medical errors are apt.

The Los Angeles Times shares the story of a 17-year old girl who had corrective heart surgery shortly before going to college. The procedure would only take a few hours and the girl had gone through the same operation several times in the past. The teen was supposed to be back home for dinner that night.

However, a few hours later the girl’s mother was told that an “incident” had occurred during the operation, depriving the victim of oxygen. The girl was placed on a breathing tube, but she would never recover. A week later her parents were forced to make the excruciating decision of removing her from the ventilator and taking out an internal breathing tube. The girl died shortly after.

The family pressed the hospital for more answers to better understand what happened to their daughter. However, the hospital provided little more than general, inconclusive explanations. The family was forced to sift through confusing medical records on their own in an attempt to put the pieces together. The grieving mother explained that the process made her realize the difficulty faced by families of malpractice victims.

She admitted, “I could imagine this happening over and over again because families don’t have the resources to find out how their loved one passed away. We had to claw our way through the system.”

The family decided to sue the hospital so that they could actually learn more about what happened. They initially had trouble finding legal representation because of the state cap on malpractice damages. However, one law firm took the case and filed suit. Eventually, it was discovered that the postdoctoral fellow had removed the young girl’s catheters without doctor supervision with the assistance of another fellow who hadn’t even been cleared to see patients.

Because of the cap on damages, the attorneys were forced to urge the Cull’s to settle the case for $250,000—the maximum allowed under the law. The trial process was cut short. The family plans to use the funds to start a scholarship fund in their daughter’s name. However, the first-hand experience has led them to understand how the threat of a larger settlement might have forced the hospital to have been more forthright about what happened.

Continue reading "Parents Question Malpractice Cap Law After Daughter’s Death" »

Today members of the U.S. House Judicial Committee met to discuss issue related to medical liability and malpractice lawsuits. The hearing involved discussion of patients rights as well as repeated, misguided claims about the need to take away certain legal decisions from juries.

Many member of Congress stood tall in their support for the preservation of patient rights. For example, Representative Nadler made clear that all discussion of malpractice had to focus on the fact that 98,000 patients die each year because of preventable medical mistakes. Advocates for victims also explained that the claims regarding rising healthcare costs is not related to the judgments in malpractice cases.

The reality is that researchers consistently find that malpractice lawsuits and the proposed “reforms” would have little if any effect on healthcare costs. The vast majority of expenses in litigation are related to claims of merit.

Continue reading "Updates on House Judicial Committee Medical Liability Hearing" »

Last week Courthouse News Service wrote about a recent state appeals court that reached the same conclusion as the Illinois Supreme Court: medical malpractice damage caps are unconstitutional infringement into the judicial process.

The court made the ruling after an appeal by a family whose young daughter suffered debilitating injuries because of the negligent of a nurse. The young girl developed a rare childhood-cancer that was not diagnosed in time to prevent severe injury—even though the girl made 32 separate visits to a nursing clinic prior to the diagnosis. The nurse practitioner who ran the clinic failed to diagnose the young child with the cancer, known as neuroblastoma. It was eventually revealed that the nurse never received a bachelor’s degree or master’s degree as required to become a nurse practitioner. Her highest degree was a high school diploma.

The family of the victim, who is now legally blind with a misshaped skull, filed a malpractice lawsuit against the negligent nurse. The family won their claim and a jury from their community awarded them $6.2 million for the lifelong care that will be needed because of the medical error. However, the caps in the state arbitrarily shrunk the award to a one-time payment that was 12 times smaller than that which her jury deemed appropriate.

The appeals court ultimately rejected the cap as an unjustified discrimination against certain victims of negligence. The caps apply only to some victims and not others. As one of the Judges wrote, “the state offered no evidence in this case…to refute the fact that the cap discriminates against [the victim] by limiting their general damage recovery…while allowing other less severely injured victims to fully recover.”

Continue reading "State Court Declares Medical Malpractice Caps Unconstitutional" »

The need for “tort reform” continues to be a common refrain among certain political elites, but the reality is that the claim is nothing more than a misunderstood attempt to take away rights from many innocent victims.

The Center for Justice and Democracy recently prepared a historical primer on the right to jury trial doctrine that so-called “reformers” are hoping to eliminate. The document outlines the fact that the right to a jury trial was repeatedly emphasized as one of the most important rights to early Americans. As far back as 1641, Massachusetts colonists enacted a charter that explicitly provided for civil and criminal jury trials. The importance of the explicit reference to the right cannot be understated—even vital protections like free speech and free press provisions had yet to be mentioned at this point in history.

Later as tensions rose between England and the colonists, the British leadership attempted to restrict the right to jury trials for Americans. The Stamp Act, one of the main impetuses of the Revolutionary Way, riled our Founding Fathers in large part because its enforcement was made by judges alone. John Adams remarked, “[T]he most grievous innovation of all is the alarming extensions of the power of the admiralty…no juries have any concern there.”

Following the war, the new states themselves repeatedly drafted constitutions that included a civil jury trial. For example the Virginia model declared, “In controversies respecting property and in suits between man and man, the parties have a right to trial by jury, which ought to be held sacred.”

Continue reading "Historical Perspective on Right to Jury Trial In Civil Cases" »

All of the hotly contested political races and heated campaigns culminated yesterday as Illinoisans throughout the state went to the polls to help select leaders at the local, state, and federal levels.

One race of particular importance for those who care about the rights of medical victims and the preservation of an impartial justice system involved the retention of Illinois Supreme Court Justice Thomas Kilbride. We had previously posted on the unfair smear campaign being waged against the judge by a few special interest groups seeking to cut-off many patients’ access to justice following medical mistakes.

Millions of dollars were poured into the smear campaign the past few months in an attempt to depict Justice Kilbride as a shill for violent criminals, including rapists and murders. The extreme distortion in the ads provoked a clear backlash among judges, lawyers, legal thinkers, police officers, and all moderate thinking citizens concerned with the truth and fairness.

Fortunately, the voters of Illinois were not fooled by the bad-faith attempt to remove a justice who had the courage to follow the law in the face of corporate opposition. The Chicago Tribune reports that Justice Kilbride appears to have received nearly 65% of the vote—he needed 60% to be retained as a member of the high court.

The result means that the citizens of Illinois will keep a justice who has a track record of respecting the state Constitution—someone who understands that all victims of negligence deserve equal access to the court system, no matter how much money they have or how many powerful friends they know.

Our Chicago medical malpractice attorneys applaud Illinois voters for their logical, fair decision to retain Justice Kilbride.

Illinois Supreme Court Justice Thomas Kilbride has been under fire lately for a vote that he cast in a recent high profile state case. The decision revolved around a challenge to the 2005 state law that placed a cap on the amount of damages that could be received by a victim of medical malpractice.

Justice Kilbride, soon to be the high court’s next Chief Justice, voted earlier this year to invalidate the law as violating the state constitution’s demand of separation of powers. In addition, there was precedential support for the ruling, consider a similar ban had been rejected a few decades before.

In a recent interview with the Peoria Journal Star the justice highlighted the logic behind the decision. He explained that the court did not make the ruling based on personal policy arguments for or against health care premiums and patient need. Instead, as is the specific job of our judges, Kilbride considered the law only in its constitutional dimension

The law had specifically limited the damages that victims could be awarded in certain categories, regardless of the specific facts of the case. That meant that an impartial jury could hear an entire case, understand the arguments, evaluate the evidence, be presented facts about the losses suffered, reach a decision based on that process and then have that decision rejected. As Justice Kilbride made clear, victims of medical malpractice, just like anyone else, deserve a fair hearing in the courtroom. It is an overreach of legislative power to take away that basic access to the court.

Our Chicago medical malpractice attorneys at Levin & Perconti support the logical, fair, constitutionally sound decision reached by the state‘s highest court on this issue. Illinois is stronger because of the logical approach reached by Justice Kilbride and the other members of the high court.

All those interested in keeping abreast of developments in the areas of patients’ legal rights and medical malpractice now have even more options. The Center for Justice and Democracy announced early last week on the release of two new publications in the area. The consumer groups is hoping that the publications will provide even more clear insight demonstrating the challenges of the proposals that some states are considering which would further deny certain victims access to the full justice system.

First, The Circuit published an article explaining that the claimed alternatives to the regular justice system—like health courts, apology and early offer laws, certificates of merit, and others—are often fatally flawed. The author notes, “Rather than changing patients’ legal rights, the focus should be on increased safety as the best way to decrease the need for litigation.”

Second, the Center released An Analysis of HHS Patient Safety and Medical Liability Initiative which critiqued an experimental program out of New York. That program will force many OB/GYN patients into biased legal apparatus with fewer legal options and no notice that they will be forced to concede their rights upon entering the hospital.

Our Chicago medical malpractice attorneys at Levin & Perconti have consistently fought for the unfettered rights of patient-victims. We are confident that the more individuals who are made aware of the truth about “alternatives” like arbitrary damage caps will support the rights of judges and juries to decide the outcome of cases following medical mistakes.

To read more from these publications on the potential harm to patients please Click Here.

The Texas Tribune is reporting on an unfolding legal story that highlights the unique ways in which hospitals make errors and puts the unfairness of medical malpractice caps in a new light.

The situation arose following an event that occurred at St. Luke’s Episcopal Hospital several years ago. Irving Marks was at the facility to have back surgery performed and to recuperate following the procedure. The actual back operation went forward without a hitch. However, while lying in bed following the procedure, Marks suffered a terrible fall in his hospital room. It was eventually discovered that the fall was caused by a broken footboard on the bed to which he was assigned.

A lawsuit was filed so that the negligent hospital would assist Marks with his medical payments following his re-injury after the hospital fall. Interestingly, the hospital argued that the lawsuit was limited by the medical malpractice law which puts a cap on certain damages at $250,000. Marks attorneys conversely suggested that the law did not apply, because the faulty bed problem was distinct from the medical errors that supposedly fall under the cap.

Judges at all levels of the system disagreed on the appropriate result. The state’s Supreme Court eventually decided in a close 5-4 ruling that the medical malpractice law did not apply in this case.

The back-and-forth on the issue offers a clear example of the illogical reasoning behind medical malpractice caps. For example, if Marks had suffered a terrible injury during the back surgery itself, than there would have been an arbitrary limit to the amount of money that a jury could award him. Yet, because his injury occurred while on the hospital bed after the surgery, there now is no limit. Even if the harm to Marks was identical in both cases, he would receive one award in one case and a lesser award in another. There is no actual logic to that outcome, only an arbitrary, irrational, infringement on the rights of some patients over others.

Our Chicago medical malpractice lawyers at Levin & Perconti believe that there is a better way. Faith should be placed where it has always been—in the legal system itself. Instead of capricious rules that penalize certain patients through no fault of their own, our legal system should provide individualized attention to fairly assess each legal situation. Trust should be placed in judges and juries to properly hear evidence following each case, decide fault, and then award damages based on the individualized evidence that was presented. That is the only logical, time-tested, fair way to dispense justice in our system. Medical malpractice caps take a sledgehammer to that system and mandate arbitrary decisions in all cases. The result is that patients who are victimized during surgery are punished, while those hurt in the bed after the procedure somehow are not. The law should be changed.

Representative Michael Burgess, the Republican chairman of the Congressional Healthcare Caucus admitted to The Hill this week that attempting to limit medical malpractice awards for victims will not save the nation much on healthcare costs. This is an important concession from an advocate that has previously called for new laws which would infringe of the rights of patients who suffer at the hands of medical mistakes.

Rep. Burgess explained that, “I have never suggested that medical liability reform is a silver bullet.”

The comments were spurred by a new study which documented costs associated with handling the malpractice that doctors commit. The researchers behind the study were clear in explaining that attempting to lower the costs to doctors from malpractice liability would do little to solve the country’s overall healthcare expense problem.

The author of the study explained the reality of the situation, “Physician and insurer groups like to collapse all conversations about cost growth in health care to malpractice reform…the amount of defensive medicine is not trivial, but it’s unlikely to be a source of significant savings.”

The truth of this position is bore out in real world examples. Texas imposed caps on medical malpractice awards several years ago. Today health care costs in the state remain very high.

Our Chicago medical malpractice lawyers at Levin & Perconti stand by our commitment to ensuring that patient rights are protected. Medical mistakes often permanently injure and destroy the lives of innocent patients—those victims deserve the same legal protections afforded to all those who suffer because of negligent conduct. Our attorneys believe in the basic fairness of allowing our legal system to work as it should, with judges and juries hearing these disputes and deciding the appropriate course of action. A legislative decision that handcuff the legal system’s ability to handle these cases does nothing but take away rights of suffering victims.

The Washington Post is reporting that a jury has awarded the family of a medical malpractice victim nearly $3 million. The victim was a man who died after his esophagus tore while he was swallowing a piece of steak. The medical malpractice jury found that the radiologist was liable for misdiagnosing the man’s condition as a hiatal hernia. The state’s medical malpractice cap will require the jury’s award of $2,933,500 to be cut by more than half. This puts the ending jury verdict at $1.25 million. The anesthesiology group also agreed to pay a settlement of $600,000.

The victim had entered the hospital complaining of chest pains and trouble swallowing after he had eaten the steak. When he entered the hospital he stated that the piece of meat went down the wrong way. In reality, the piece of meat had gotten stuck in this throat. At the hospital he was given a number of tests which included an EKG, an X-Ray and a CT scan. The computer stated that the victim had a “large hiatal hernia” and doctors treated him with oral medicine. However, his pain did not decrease. Doctors continued to try to diagnose his chest pain. Finally, after a day of searching a surgeon found the victim’s perforated esophagus. He was immediately prepared for surgery and an epidural catheter was inserted. Court documents show that after the catheter was inserted the victim went into cardiac arrest. He had been severely weakened by the perforated esophagus which caused his cardiac arrest. The man died less than two weeks after his surgery.

This case highlights two aspects of medical malpractice law. First, it is yet another example of the 98,000 people who die annually as a result of medical malpractice. Second, it shows that medical malpractice caps are quite misleading. The jury was never told about the state legislation and hoped that the victim’s family would be justly awarded nearly $3 million in compensatory damages. However, the family was impacted by an unconstitutional state malpractice law. To read more about this specific case, please click the link.

All too often the public does not hear about the detrimental effects tort reform has on the hundreds of thousands of victims whom are injured by medical malpractice each year. Tort reform puts a cap on compensation for victims of medical negligence. The Huffington Post points out the specific case of Lisa Gurley. A court found that the severe brain injury suffered at birth by Lisa’s son, Colin, was caused by a doctor’s negligence. Despite this finding, Nebraska tort reform prevented Lisa and her son from being adequately compensated for his injuries. In fact, they were compensated for just a tiny fraction of what it will cost to care for Colin for the remainder of his life. Now, Medicaid and the Nebraska Medically Handicap Children's program pay for all of Colin’s care. It is grossly unfair that the taxpayers and Colin’s family are paying the astronomical cost of caring for a severely handicapped child while the doctor and the insurance company paid minimally for the medical negligence. The Chicago medical malpractice attorneys at Levin and Perconti are working to protect the rights of catastrophically injured children like Colin and to ensure that there continue to be adequate remedies for injured victims of medical negligence.

Last week, the Illinois Supreme Court reached a landmark decision which ruled that medical malpractice caps are unconstitutional. The Illinois Supreme Court decided that patient’s rights were more prevalent than the needs of the insurance company. They overruled an Illinois statute that capped pain and suffering at $500,000 from a doctor and $1 million from a hospital for negligent medical care. However, many are critical of the important decision recently written.

The Chicago Sun-Times wrote that the health care costs in Illinois suffered a setback due to this decision. The article argues that health care costs are rising and that doctors are leaving this state due to insurance costs. The article also argues that neurosurgeons are leaving Illinois due to the large health care costs and the American Medical Association argues that medical malpractice insurance stabilized as a direct impact of the statue.

Yet, the paper overlooks a number of factors. First, those states with medical malpractice caps historically have a higher insurance rate than those without. Second there is no empirical evidence that doctors leave states without medical malpractice caps. Finally, and most importantly, 98,000 people die every year due to medical error. Advocates should be more concerned with diminishing medical errors than decreasing medical malpractice costs. The Chicago medical malpractice lawyers at Levin and Perconti support the recent Illinois Supreme Court decision. It is not only a decision that coheres with the constitution, but is also one that supports patients’ rights.

Lately, the media has focused on how many of this nation’s Supreme Courts are committing judicial activism. However, the recent decision by the Illinois Supreme Court is evidence that the Illinois Supreme Court can make “non-activist” decisions. They did so by rightfully declaring that the 2005 cap on medical malpractice awards was unconstitutional. Not only does precedent require this decision, it also shows that the Supreme Court can make the right decision for Illinois. By declaring medical malpractice caps unconstitutional, they showed their commitment to patient’s rights. Families rely on court-determined compensation in order to rebuild their life after a devastating medical error. By instituting medical malpractice caps, the legislature tried to take away the judicial branches right to decide. Thankfully, the Illinois Supreme Court brought the decision back to the bench. To read more about the medical malpractice decision, please click the link.

The Illinois Supreme Court showed their support for patient’s rights today by ruling that medical malpractice caps violate the state’s Constitution. The ruling strikes down a statute that would limit awards for noneconomic damages such as pain and suffering. This would be the third time that the Illinois Supreme Court rejected medical malpractice caps. The court told lawmakers that they could not limit the amount of money that a medical malpractice victim could win in court. The Illinois Supreme Court found that the legislature had violated the separation of powers by infringing on the powers of the judiciary. The ruling revolves around the case of a 4 year old victim who was a victim of medical negligence. This medical error caused the girl’s brain damage at birth. This is a landmark case that will help the victims of medical malpractice throughout the state of Illinois. Now that malpractice caps have been lifted, the victims may receive funding that is needed to survive. The lawyers at Levin & Perconti applaud the Illinois Supreme Court for their support of patient’s rights. A victim deserves to be rightfully compensated for their injuries. To read reaction to the important decision, please click the link.

Today, the Illinois Supreme Court handed down a ruling in favor of patients and victims of medical malpractice throughout the state. According to a press release issued by the Illinois Trial Lawyers Association, the Court ruled that medical malpractice caps are unconstitutional in a lawsuit about a young girl who suffered a significant brain injury due to medical negligence. ITLA president, Peter J. Flowers, applauded the Court’s decision, noting it will shift the focus to “meaningful insurance reform” that will cut costs for doctors and patients and will give Illinois residents access to quality care.

The Chicago medical malpractice lawyers at Levin & Perconti support the Court’s ruling. Medical malpractice laws were designed to protect patients injured through no fault of their own. These laws allow victims to seek fair compensation for a health care provider’s mistakes. We are pleased that the Court ruled to protect patients’ rights to hold doctors and hospitals accountable.

A woman went to the hospital to have her fallopian tubes tied and left with two punctured holes in her bladder. This near-death experience resulted in the woman having chronic pain and a flesh eating virus. The victim couldn’t move, speak and she had no muscle control. Her medical expenses for the process totaled $1.9 million. Medical malpractice lawyers state that if she hadn’t received the settlement she would be homeless or living in public housing. The woman fortunately filed the medical malpractice lawsuit in the state of Iowa where no medical malpractice caps exist, despite the lobbying of the insurance companies. While insurance companies boast that caps will lower the cost of health care, history shows that the medical malpractice caps do not lower insurance rates for doctors or patients. They simply make more money for insurance corporations. Statistics show that malpractice insurance profits are 24 percent higher in states with caps on malpractice damages than in states who do not have medical malpractice caps. Medical malpractice attorneys know the cost of bringing a case to trial, and due to this only take those that are meritorious. This helps dispute the insurance companies argument that medical malpractice suits are too commonplace and that caps are needed to decrease the costs. To learn more about the medical malpractice case, please click the link.

Last month the Illinois Supreme Court decided to delay its ruling on the constitutionality of the Illinois Medical Malpractice Act of 2005. This ruling would determine whether or not medical malpractice caps were legal in Illinois. The issue came before the Court in the 2007 Abigaile Lebron v. Gottlieb Memorial Hospital case where a Cook County Circuit Court Judge deemed the caps unconstitutional. Attorney Frank Perrecone stated the caps do nothing but injure victims of malpractice claims. He stated that “it’s a one size-fits-all solution on noneconomic damages, and it will affect those victims of medical error who are most seriously injured.” Medical malpractice caps will do nothing to decrease health care costs and will simply injure victims of medical error even further. To look more at opinions about medical malpractice caps, check out the link.

The Vice President of the Illinois Trial Lawyers Association Greg Shevlin recently wrote a letter to the editor concerning the upcoming medical malpractice debate. Currently important legislation is facing the Illinois Supreme Court concerning medical malpractice caps. The case before the Illinois Supreme Court is about a little girl named Abigaile LeBron. This child’s life was forever altered as a result of the medical errors she encountered during her birth. However, there are many that want to cap the amount of damages she can receive in the name of brining down medical malpractice insurance rates. Caps have not lowered malpractice rates for doctors. The answer to fixing our health care situation is insurance reform, not taking away patients’ rights through medical malpractice caps. We must hold the insurance industry accountable for a health care system that is spiraling out of control. To learn more about how medical malpractice caps will injure patient’s rights, contact an Chicago personal injury lawyer.

Recently two health care attorneys called for the Illinois Supreme Court to uphold legislation that placed caps on non-economic damages in medical malpractice cases. However, it is obvious that much of their argument consists of long-debunked myths and unsubstantiated claims. The attorneys claimed that doctors are fleeing Illinois due to the malpractice caps. However, the AMA’s own figures show the number of doctors in Illinois steadily increased over the last decade. The numbers also show that there are more doctors per capita in states without caps than those with them. Most importantly, the attorneys fail to speak to the heart of the lawsuit under contention. The victim was born with severe brain damage as the result of medical negligence. The attorneys writing the article forget that Abigaile is a real girl, with real problems. Medical malpractice cases cannot be simplified to a math equation that places an arbitrary value on human suffering. The laws regarding medical malpractice caps must be flexible enough to meet every victim’s needs. This article was published in the Law Bulletin.