June 20, 2014

No Recovery Against Hospitals for Family Woman Killed with Packing Left in Surgical Wound

by Levin & Perconti

Surgical errors can result in horrible consequences. This is particularly the case when something happens that should never happen in any surgery, like leaving surgical tools in a wound, or improperly packing a wound. However, even when these sorts of obvious errors happen, those who are injured (or their families in cases of death) are not always able to recover in court.

One example of this problem is a recent case from New York, Bucsko v. Gordon. While the court’s decision in the case was not released for publication, and thus has no precedential value, the facts of the case show how families can be prevented from recovering the damages they deserve as a result of the wrongful death of their loved one.

Continue reading "No Recovery Against Hospitals for Family Woman Killed with Packing Left in Surgical Wound" »

May 25, 2014

Not All Surgical Injuries May Be Governed by Malpractice Law

by Levin & Perconti

Usually when people think of those who are hurt during a surgery, they assume any lawsuit will be a medical malpractice case. And that is usually the case. This can be a blessing, because medical professionals are held to a higher level of professional responsibility. Their duty to a patient is greater than a regular Joe’s duty is to his common man. But it can also be a burden. Due to misguided attempts at so-called “tort reform” over the past decade, many states have put strict statutes of limitations in place that severely limit the amount of time an injured patient has in which he can file a malpractice claim. Interestingly, a New York court has recently held that not all injuries sustained during a surgery are governed by these oppressive time limits.

Case Example
In Newell v. Ellis Hospital, a woman underwent a surgery. Either while or after she was being extubated (having a tube removed from her larynx that is used during surgery to help with breathing), she fell from the operating table and was injured. Three years after the injury she sued the anesthesiologist and the assistant surgeon involved.
The anesthesiologist filed a motion to have the case dismissed, because it was filed after the statute of limitations for medical malpractice claims had run out. In New York medical malpractice claims have to be brought within two and a half years. The trial court ultimately agreed with the anesthesiologist and dismissed the case, but the injured woman appealed.

Continue reading "Not All Surgical Injuries May Be Governed by Malpractice Law" »

April 24, 2014

“I’m Sorry” Bills: Stripping Personal Responsibility from Medical Malpractice Apologies

by Levin & Perconti

The Fairbanks Daily News-Miner reports that the Alaska Legislature has unanimously passed a bill that would make expressions of apology or compassion inadmissible in medical malpractice trials. Kurt Olson, the bill’s sponsor says his goal is to improve doctor-patient relationships. However, this type of bill strips apologies by medical professionals of any true meaning and act is just one more protection for the powerful insurance and medical industries. This is because, along with protecting so-called apologies, the bill also actively discourages the physician from admitting negligence.

Whether a doctor or other medical professional’s error leads to a personal injury claim, or an even more tragic wrongful death claim, a true apology can be extremely meaningful. Dr. Jennifer K. Robbennolt, PhD, JD has done a study on the effectiveness of apologies in the medical error context. She defines apologies as “statements that acknowledge an error and its consequences, take responsibility, and communicate regret for having caused harm.” However, a law like the one passed by the Alaska legislature eliminates on important part of that definition: taking responsibility.

Real Apologies Heal Doctor-Patient Relationships
According to her study, real apologies can achieve the bill’s sponsor’s goal of improving doctor-patient relationships. But a useful apology must admit fault and take responsibility. Patients care about three things when it comes to medical error: they want to understand what has happened to them, they want to receive an apology, and they want to prevent similar errors in the future. In fact, 98% of patients harmed by medical error wanted or expected the physician to acknowledge the error. Dr. Robbenolt similarly found that people who wind up filing medical malpractice law suits often want to make sure no one else is injured in the way they were, and want to doctors who hurt them to realize what they have done.

The study also shows that doctors who make errors and who realize their errors often want to make a meaningful apology. This bill may seem, on its face, like it allows for that. But instead it encourages doctors to avoid meaningful apologies and instead use words of so-called apology without accepting responsibility.

This is not just bad for the patients. It is also bad for the physicians. Dr. Robbennolt found that physicians are profoundly affected by medicals errors. One described the “sickening realization of making a bad mistake.” While they have plenty of selfish fear regarding their own reputations or the repercussions, many doctors also experience worry and guilt for their patients and stress over the harm done to the relationship.

These doctors want to make meaningful apologies. And in some cases they do. There is a misconception that apologies without a law like the one in Alaska (and 2/3 of the other states) are deadly to a medical practice, but its simply not true. Robbenolt notes in her paper that no link between the risk of litigation and willingness to disclose error has been established. Further, most injured patients do not sue, doctors over-estimate the risk of being sued, and real apologies actually make victims of medical error less likely to sue.

Medical errors hurt patients in a wide variety of ways—some financial and some less tangible. Those less tangible injuries can often be healed with a meaningful apology. Legislation that discourages acceptance of responsibility by doctors eliminates a meaningful method of healing both the patient and the doctor-patient relationship.

Related Blog Posts:

U.S. Supreme Court Rejects State’s Attempt to Take Excessive Funds From Legal Recovery

More Bad Legislation to Limit Legal Rights of Patients

April 22, 2014

Surgical Error: Botched Appendectomy Results in Miscarriage and Death

by Levin & Perconti

The Belfast Telegraph reports that a woman has suffered miscarriage and death as a result of a surgical error. The 32 years old woman, who was 20 weeks pregnant with her fourth child, was admitted to the hospital for an appendectomy. Rather than removing her appendix, the junior surgeon who operated on her removed her right ovary instead.
In less than three weeks she was back in the hospital for abdominal pains. Two days later she miscarried and died on the operating table after finally having her appendix removed.

The surgeon who removed her ovary denies any misconduct. He had limited experience performing appendectomies on pregnant women, and did not ensure he was supervised during the procedure. He did not call for help when the woman started to bleed heavily during that first operation. The more senior surgeon, who was responsible for supervising the surgeon who committed the surgical error, also denies misconduct.

Prevent Becoming a Victim of Surgical Error
Patients undergoing surgery are at their most vulnerable. They are ill or injured, often frightened, and often don’t fully understand what is going wrong inside their bodies. Not to mention that during the surgery itself they are unconscious and exposed. And, despite the best intentions, surgical errors happen. When that happens, the injured patient or his loved ones should contact a medical malpractice attorney.

However, there are things that patients can do to try to prevent becoming victims of surgical error. A CNN report from 2008 provides five key tips surgical patients can follow to try to prevent becoming a victim. These include:

1. Check out your doctor and hospital.

Just as you would read reviews of a restaurant before booking your anniversary reservation, or you would examine client testimonials before hiring an attorney, you should check the qualifications of your doctor before going under the knife. Find out how many times the doctor has done the procedure and how that compares to other doctors. Research the hospital as well.

2. Tell everyone who you are and why you're having surgery.

It may seem silly, but tell everyone you deal with who you are and what surgery you are having. When hospitals get extremely busy if the staff does not recognize you, it’s easier for them to make a mistake and mix you up with the patient down the hall.

3. Make sure your doctor initials your surgical site before the operation.

This one may also make you feel a little silly, but it’s actually endorsed by the American Academy of Orthopaedic Surgeons. It’s a brilliant way of making sure the right side of you is operated on.

4. Confirm the surgery site with the surgeon right before the procedure

According to Dr. James Beaty, past president of the American Academy of Orthopaedic Surgeons, "You should say, 'I'm not going back to surgery until I see my doctor and we confirm that this is the right site.’”

5. Train someone to be your advocate

You will likely be scared, tired, and nervous when you undergo surgery. So teach your loved ones who will be there with you these same tips, so they can make sure these procedures are followed. After all, the more people who keep saying telling the staff and surgeons that you are John Smith and you are here to have your left kidney removed, the less likely you are to accidentally wind up with Mike Smith’s right knee replacement instead.

Related Blog Posts:

Surgical Errors are Medical Malpractice

Underreporting of Robotic Surgery Errors?

April 10, 2014

Florida Joins Illinois in Rejecting Medical Malpractice Damage Caps as Unconstitutional

by Levin & Perconti

The Florida Supreme Court struck down that state’s cap on wrongful death non-economic damages because the cap violated the equal protection clause of Florida’s constitution. Justice Lewis wrote for the Court that the $1 million cap was unconstitutional because “it imposes unfair and illogical burdens on injured parties when an act of medical negligence” effects more than one person. He explained that the cap resulted in some injured people receiving full compensation while arbitrarily denying others compensation, meaning people were not treated equally before the law.

Caps on non-economic damages prevent those harmed by medical malpractice from being compensated for their injuries. Non-economic damages are meant to compensate the victims for the intangible harms they suffer. In a personal injury case, non-economic damages can include those for pain and suffering and emotional distress, while in wrongful death cases they can compensate the harmed parties for loss of consortium or loss of companionship. Awarding these damages allows a jury to acknowledge that the loss of a child or spouse is not merely harmful to the survivor because of the medical bills or loss of income, but that the loss of the actual person and the relationship is also a real harm.

Florida joins Illinois in a growing number of states that are undoing the damage done throughout the 1990s and early part of this century to civil litigants’ rights to recover for these injuries. Like Florida, Illinois used to cap non-economic damages in medical malpractice suits. Then, in 2010, the Illinois Supreme Court brought an end to the caps in the landmark decision of Lebron v. Gottlieb Memorial Hospital.

History of Medical Malpractice Caps in Illinois
The plaintiffs in Lebron alleged that medical malpractice caused Abigaile Lebron to suffer severe brain injury, cerebral palsy, cognitive mental impairment, inability to be fed normally requiring a feeding tube, and an inability to develop normal neurological function. At that time Illinois law limited Abigail and her mother’s non-economic recovery just as the Florida law limited recovery in that state. Illinois, like Florida, held that the cap on damages was unconstitutional. But the two states used different reasoning. In Illinois it was not an equal protection complaint that won the day for injured parties. Instead, Lebron argued that the cap on recovery violated the separation of powers in the Illinois constitution. That is, it was an example of the legislature doing a job that was reserved for the judiciary. Illinois courts have the power of what is called “remittitur.” Remittitur is a doctrine of law that allows trial judges to determine whether a jury’s award is excessive and to reduce the award if necessary. Since this is a judge’s job, not the legislature’s job, the Illinois Supreme Court invalidated the cap.

The Future of Malpractice Caps in Florida
The Florida decision invalidates the cap in that state for now. But the fight is not over. Lebron was not the first fight over caps in Illinois. The issue had already been litigated years earlier in the Best case, but the legislature passed a cap a second time despite the Best decision. Undoubtedly the powerful lobbies of the insurance and medical industries will try to undermine the Florida Court’s decision by passing a new cap. However, the Tampa Bay Times reports that Sen. Tom Lee, a Republican who negotiated the now overturned law’s passage and who is currently the Senate Judiciary Committee chair, is not confident another damage cap could pass during this legislative session. Both medical malpractice attorneys and brave individuals will have to keep fighting in upcoming sessions in order to protect our rights.

See Related Posts:

CJ&D Briefing Book: The Truth About Medical Malpractice Lawsuits

Medical Malpractice Verdict Highlights Problems With Malpractice Caps

March 7, 2014

Lost Income, Injuries, and Damages in Medical Malpractice Cases

by Levin & Perconti

It can be a scary situation when one is sick or ill. That is why people place so much trust in doctors. As people lack education regarding illnesses and diseases, they rely upon doctors to protect them and keep them safe. This lack of education means that most people are ignorant to problems that may occur when doctors make mistakes. For that reason, it is imperative to visit a lawyer if you believe that a doctor’s mistake has led to a problem.

Many people are unaware of what constitutes a bad result and what constitutes error. If you believe that your doctor behaved incorrectly, it is advisable that you speak with a lawyer who can help you obtain the justice that you deserve. The mistakes that doctors make can last a lifetime. If such an unfortunate accident occurs, you should attain assistance so that the mistakes can be corrected or the situation can be ameliorated.

Compensation for Lost Income

A recent story discussing a med mal case demonstrates the importance of medical malpractice suits in helping in recovery. After the problems regarding her surgery, Ms. Pagan needed aid in returning to a state similar that she possessed before her surgery. The article does a good job of mentioning that medical malpractice suits are not merely a way to obtain money for future surgery or corrections for the mistakes that have previously occurred. It is also a manner for those to recoup losses that these mistakes have produced. Ms. Pagan will receive more than $400,000 for income that she would have earned through 2017.

Not Limited to Physical Injuries
The article points out an important matter. When it comes to medical malpractice issues, it is not only physical medical injuries that apply, but mental injuries and suffering that may have arisen from a mistake. In this case, the victim received damages that included mental or emotional distress. When a victim of medical malpractice has a difficult recovery, a jury can consider more than the costs of physical injuries when deciding on compensation.

It is important that you rely on lawyers that can provide you with the proper information regarding your case. In 2005, the Illinois passed a statute limiting damages of medical malpractice suits to $500,000 for cases involving doctors and $1 million for hospitals. There have been other occasions in which the government has attempted to limit damages regarding medical malpractice insurance. However, in 2010, the Illinois Supreme Court struck down limitations to non-economic damages concerning medical malpractice suits. The factors involving medical malpractice claims are complicated and it is in your best interests to contact an attorney.

Medical malpractice suits are not only important for the medical damages that result, but also for the emotional and psychological problems that may ensue. If you are considering filing suit for medical malpractice, it is important that you contact an attorney who can fully evaluate your claim.

February 21, 2014

Surgical Errors are Medical Malpractice

by Levin & Perconti

One of the times that a patient is most vulnerable in a hospital setting is while he or she is on the operating table. The patient is likely anesthetized and is relying completely on those medical professionals involved in the operation: the anesthesiologist, the nurse anesthetist and the surgeon. Unfortunately, the reality of the situation is that there are a myriad of things that can possibly go awry while a patient is on an operating table, and when they do, the patient may have a claim for medical malpractice due to the negligence of his or her medical care providers.

Surgical Errors Related to the Surgery

Performing the operation on the incorrect body part. One of the most common surgical errors to happen in medicine is that a surgeon improperly performs a surgery on the wrong part of the body. For instance, a patient may require a hip joint replacement on his or her left side, but the doctor accidentally replaces the right hip joint. The doctor is likely liable for negligence.

Inadvertently harming other adjacent organs. Sometimes a surgery is performed correctly, but the surgeon acts too aggressively or accidentally injures a nearby organ in the body. Soft tissue organs in the body can often sustain light forces applied to them, such as gentle pressure as a doctor moves an organ that is in the way of the operation. However, soft organs and blood vessels do not fare well when they are inadvertently punctured or cut. Injuries to adjacent organs that are left untreated while the operation is underway or are ignored, can lead to serious problems after the surgery.

Leaving surgical instruments and tools in the body after surgery is complete. Many people have heard of this type of surgical error before. The surgeon leaves a cotton swab, sponge, clamp or tool inside the patient. Surprisingly, many instances of surgical instruments being left inside a patient go undetected for some time before discovery. While it is standard operating procedure to take an inventory of all tools and instruments before and after a surgery is performed, sometimes a nurse miscounts, or a staffer intentionally tries to hide the fact that a cotton swab is unaccounted for to avoid getting in trouble, however short-sighted that logic might be.

Negligent Post-Operative Care
One of the most serious complications that can arise post-surgery is an infection at the operation site. Improper post-operative care, such as improper cleaning, or giving improper cleaning instructions to an outpatient, could be considered negligence under certain circumstances. Similarly, if during recovery, a patient is not properly monitored for signs of post-operative complications, it can also be grounds for a malpractice lawsuit.

Contacting a Medical Malpractice Attorney
If you believe that you have suffered from a surgical error due to the negligence of an anesthesiologist, a nurse anesthetist, a surgeon or a post-operative care provider, you need to speak with an experienced medical malpractice attorney to help you formulate your claim. Please contact us today to learn more.

See Related Blog Posts:

What is a Standard of Care in Medical Malpractice Claims?

Scary Statistics on Medical Malpractice

January 27, 2014

No Two Medical Malpractice Cases Are Valued the Same

by Levin & Perconti

The goal of a medical malpractice lawsuit is often an emotional one: to hold a negligent medical provider accountable for their actions or failure to act that caused an injury or death of a patient. Nothing can reverse what has been done, but victims or their families nevertheless seek justice. In addition, victims or families also seek to be compensated for the injury or loss. While this too will never change what happened, it is a necessary element for plaintiffs to seek redress in the form of damages in order to maintain a legitimate claim. What potential litigants should understand, however, is the scope of possible damages they may seek, and what specific damages are possible in the state of Illinois.

As has been publicized in the world of personal injury law, the 2010 case of Lebron v. Gottlieb Memorial Hospital significantly altered the landscape of medical malpractice law by finding the cap on the recovery of non-economic damages in such actions unconstitutional. This cap had been legislated in 2005 until its invalidation by the highest court of the state. This grounds for such action rested in a classic separation of powers argument, in which the Illinois Supreme Court determined that it was not up to the legislature, but rather up to the judiciary (either judge or jury) to assess damages on a case-by-case basis.

Non-economic effectively differs from economic damages in that economic damages focus solely on making the victim economically whole again, or at least as much as possible. Lost income, loss of potential income, medical expenses, and other hard and more easily calculable figures make up the category of economic damages. Non-economic damages on the other hand include awards for pain and suffering, loss of consortium, and other similar damages that cannot be so easily quantified, but nevertheless are quantified if a judge or jury determines a case merits such an award to further compensate a victim. Punitive damages also exist as a means of punishing defendants for their acts. However, punitive damages are not allowed against medical providers for medical malpractice in the state of Illinois.

What Is An Acceptable Award?
An acceptable award is mostly up to a judge or jury to determine on a case-by-case basis. Seldom will an award of damages in a medical malpractice be overturned on review. While the actual legal merits of cases, such as determining liability, are argued on the basis of comparing the facts of the case to previous cases and precedent, damages awards are not so much. In the case of Dobyns v. Chung in the 5th District of Illinois, a jury returned a medical malpractice/wrongful death verdict in favor of the plaintiff for $50,000. The plaintiff filed motions for the court to re-consider the damages, including a motion to hold a new trial on that very issue. These trial level motions went nowhere, and were similarly rejected on appeal. The plaintiff unsuccessfully argued that his award was not on part with other verdicts in similar cases within the state judicial system. The appeals court, however, stated that it is within the discretion of the judge or jury to make damages awards based on how they specifically see the case without measuring it against other cases and verdicts with which they may not be substantially familiar.

Based on this case and long-held principle within Illinois, it is important to understand that an issue of damages will really be determined based on the jury or judge’s unique view of one’s unique medical malpractice claim. This is something to consider and expect when bringing forth such a lawsuit.

See Related Blog Posts:

Sometimes Damages Are the Only Question Mark in Medical Malpractice Cases

Controversy Over Pain and Suffering Caps

January 25, 2014

Be Mindful Medical Malpractice Statutes of Limitations

by Levin & Perconti

When making the decision of whether or not to bring a medical malpractice lawsuit, it is vital that parties understand their state’s statute of limitations for doing so. A statute of limitations is a specific duration of time imposed by state law in which a party may file a lawsuit. Such statutes vary from states to state as malpractice claims are governed by state law and precedent. Many statutes of limitations in these cases provide a relatively significant amount of time to file suit, but potential litigants must be cognizant of these rules. It may take time to truly come to terms with an injury or death that occurs as a result of medical malpractice, and injured parties or their families may not be ready to move forward so quickly. The time to sue will pass faster than people realize, so it is important to be aware.

Med Mal Time Limits in Illinois
In Illinois, the general statute of limitations to bring a medical malpractice lawsuit is two (2) years. However, as with all such statutes, there are specific rules as to when this clock begins to run. Generally speaking, and as is in the case in Illinois, the two year period begins to run from the date that the victim knows or should reasonably have known that they were in fact injured as a result of a medical provider’s negligent acts or omissions. This is known as “The Discovery Rule,” aptly named because the basis for measuring the statute of limitations starting point relates to the discovery of the malady or injury. The rule was most recently clarified in an Illinois appellate decision.

Anyone believing they were injured by a medical provider’s negligence must be aware of the date that this occurred, and must be prepared to litigate the issue of when that person should have known. This can often complicate the case, because a plaintiff may sue for an injury years after it occurred but only because they discovered it at that time. Attorneys defending the medical provider will undoubtedly argue that the plaintiff should have been aware of the injury much earlier, thus jeopardizing the plaintiff’s lawsuit by arguing it is untimely. It is also important to keep in mind possibilities of tolling, or pausing, the statute of limitations in the event that a second injury exists but could not have been discovered until later, or that there is a second source of an injury that may not have been discoverable by the victim until much later.

In Illinois, like other states, there are exceptions and wrinkles to statutes of limitations. For example, while an individual has two years to file from the time they discover or should have discovered the injury, they can nevertheless file more than four (4) years from the time of the negligent act or omission by the medical provider. This is known as a “Statute of Repose” and it effectively a cap that all litigants must be aware of. Discovering an injury five years after the malpractice that may have caused it unfortunately means it is too late.

Furthermore, for babies injured as a result of doctor or hospital negligence during birth, there is an eight (8) year statute of limitations for the child’s parents to sue for malpractice. In malpractice cases involving minors, a lawsuit may be filed at any time up until two (2) years after the victim’s 18th birthday, but this is capped at eight (8) years from the date of the actual act or omission leading to the injury. The statute of limitations is also generally extended in other cases involving minors.

There are other such examples as well, and it is important for potential litigants to know their deadline for filing a claim to meet the statute of limitations. Contacting an attorney even just to be sure of this deadline may be a worthwhile consultation.

See Other Blog Posts:

New Malpractice Suit Dubbed “Death by Forceps”

Failure to Diagnose: Parents of Young Doctor File Medical Malpractice Lawsuit

October 25, 2013

Laser Removal Malpractice Suits on the Rise

by Levin & Perconti

In the United States, laser hair removal medical malpractice suits are quickly on the rise. In the past 20 years, as cosmetic surgeries have become more commonly conducted medical procedures, there has been an increased prevalence of laser hair removal suits. In fact laser hair removal, which uses laser devices to extract hair from the body, have quickly become the most commonly performed cosmetic surgeries in the United States.

Furthermore, laser hair removal procedures are some of the most commonly litigated cosmetic procedures, quickly surpassing plastic surgery suits. The Journal of the American Medical Association (JAMA) Dermatology Network in a recent study found that laser hair removal was involved in 36.2% of cosmetic medical malpractice cases, followed by rejuvenation procedures, which accounted for 24.7% of litigated procedures.

The Facts About Laser Hair Removal Suits in the U.S.
The most common injuries that are the subject of laser hair removal suits and litigation are burns, which are the stated injury of 47% of laser hair removal cases. Next in line are scars resulting from laser hair removal, which make up 38.8% of suits, followed by skin pigment alterations, consisting of 23.5% of cosmetic surgeries. The (JAMA) Dermatology Network reported that these suits predominantly list a physician as the main defendant, even when the physician did not actually perform the laser hair removal procedure. This indicates that liability for laser hair removal injuries lies firmly on the physician, who must take on at a minimum a supervisory, if not active operator role, in the laser hair removal procedure.

Legal Treatment of Laser Hair Removal
Currently, there is no significant federal guidance regarding the use of lasers on skin, nor specific requirements for the training and supervision required to legally operate lasers for cosmetic surgery purposes. However, trends in past litigation indicate that physicians will be held predominately liable for injuries, even if they did not personally operate the laser device used to conduct the procedure. In fact, the JAMA Dermatology study found that non-physicians were named in only around 20% of laser hair removals. In contrast, plastic surgeons, physicians and dermatologists were named as the main defendant/operator in over 50% of laser hair removal malpractice cases.

Laser Removal and the Law in Illinois
Under Illinois Administrative Code Chapter Title 68, Part 1285.336, medical professionals are the only parties permitted to perform laser hair removal procedures. Specifically, a licensed physician, or a trained employee working under the supervision of a licensed physician, are the only parties permitted to conduct laser hair removals. Thus, this rule excludes cosmetologists and estheticians from using lasers as a tool for laser removal.

Further, when the physician is in a supervisory capacity for a laser hair removal procedure, the supervisor must be accessible to the non-physician at all times during the procedure via. telephone or other comparable electronic means. The supervising physician is also held accountable for ensuring that the non-physician employee is properly trained for the procedure being conducted. Contact our attorneys today if you would like more information about your rights regarding a personal injury you experienced from a laser hair removal procedure.

See Our Related Blog Posts:

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October 11, 2013

Underreporting of Robotic Surgery Errors?

by Levin & Perconti

Advances in medical care are astounding. What would once have been deemed only possible in science fiction is slowly seeping into everyday practice. But, it is important not to forget that, regardless of the complexity of the processes, safety must always be paramount. Providing substandard medical care that leads to harmful, preventable injuries is never acceptable.

For example, consider robotic surgeries. Every day more and more patients in Illinois and throughout the country are having operations which are performed in large part by robotic machines. In most cases, doctors control these machines behind the scenes, guiding the robotic arms with all aspects of the procedure. Of course, one obvious advantage is that that format may minimize the chance of human-caused surgical errors. Hands slip, cuts are made too deep or in the wrong spot, and many other mistakes might be made by a surgeon in the middle of an operation. But robotic arms do not get tired and can work with a level of precision that no human could meet.

But that does not mean that robotic surgeries are always without error. In fact, recent reports have raised very real concerns about the current level of safety with these devices.

Surgical Errors - Even with Robots
For example, last month Johns Hopkins Medicine released a report which explained how the reporting process for robotic surgery complications was “haphazard,” leading to a lack of clarity regarding the overall safety of these operations.

According to the report, there have been about a million robotic surgeries performed since 2000. Yet, only 245 complications from those procedures was ever reported to the U.S. Food and Drug Administration. Of those, 71 deaths resulted.

But do those reporting numbers tell the whole story?

Law requires all “adverse events’ to be reported. But as almost anyone involved in the process will confess, the reality is far different than the ideal. Quite obviously the researchers noted that “the number reported is very low for any complex technology used over a million times.”

The fact is that many mistakes are simply not reported as required. It did not even take much digging to find examples. That is because many of the mistakes identified in popular news reports were themselves not even reported to the FDA. If errors that make their way into newspapers are not included in FDA databases, then what about the many more instances which are not written about in a newspaper? How many instances are swept under the rug?

This poses a real problem, not just for past accountability but for future safety. As a professor or surgery discussing the report noted, ““Doctors and patients can’t properly evaluate safety when we have a haphazard system of collecting data that is not independent and not transparent. There may be some complications specific to the use of this device, but we can only learn about them if we accurately track outcomes.”

If you or a loved one may have been affected by any form of medical malpractice, feel free to contact our attorneys today.

See Other Blog Posts:

Medical Costs: Malpractice v. Fraud

Hospital Readmission Rates: Canary in the Coal Mine?

October 4, 2013

Medical Costs: Malpractice vs. Fraud

by Levin & Perconti

Talk of the government shutdown dominates headlines this week. As many know, the root of the problem is the House Republicans’ refusal to pass a bill funding the government unless funding for the Affordable Care Act is pulled. The Act (colloquially referred to as Obamacare) was passed into law several years ago and upheld as constitutional by the U.S. Supreme Court last year. In other words, this latest move is a nearly-unprecedented attempt by one branch of Congress to hold all government funding hostage to neuter implementation of a law.

Unfortunately, there is much confusion regarding what the Affordable Care Act does or does not do. There is a good chance that your Facebook feeds are filled with arguments on both sides, with one common complaint: that medical costs and insurance costs) will go up as a result. There is a wide-range of data which suggests these fears to be unfounded.

Regardless, considering the topic is now being debated, it is a good time to share information on the complexity of medical costs and the misplaced priorities of many seeking to lower the bill

Tackling Medicare & Medicaid Fraud
As we often discuss, some misguided lawmakers, when asked about medical costs, go immediately to “tort reform” as some catch-all solution. They claim that eliminating the rights of a certain group of injured medical patient will magically lower healthcare costs for everyone and solve the problem. This argument is so divorced from reality that it is hard to imagine anyone with a basic understanding of how medical costs accrue to believe it.

A colleague recently shared a comparison that helpfully puts the issue into context. Consider this: according to estimates from the National Association of Insurance Commissioners (NAIC), about $5.8 billion is spent annually on medical malpractice defense costs. Keep in mind that this data comes from an insurance group--not plaintiff’s attorneys. At the same time, in the United States, about $2.6 trillion is spent on health care every year. That means that malpractice defense cost--in total---account for .3 percent of the overall cost….one-third of one percent. That is a tiny fraction. In other words, even if it was made impossible for any patient to ever hold their doctor accountable at any time, the effect on health care costs would be negligible.

On the other hand, consider annual fraud costs. U.S. Attorney General Eric Holder recently suggested in a USA Today story that anywhere from $120 to $160 billion in Medicare Fraud occurs each and every year. The fraud takes different forms but essentially refers to doctors and medical institutions billing the government for care in contrivance of federal law.

Fraud costs nearly 20x more every year that all malpractice defenses together. Anyone serious about reducing medical costs is simply wasting time by dwelling on tort reform laws that would do next to nothing to fix the problem. Instead, all attention should be on providing quality care devoid of fraud. it is entirely disingenuous for policymakers to tell constituents that eliminating patient rights will solve any health care cost problems.

See Other Posts:

Hospital Readmission Rates: Canary in the Coal Mine?

New Report: Medical Mistakes May Kill 400,000 People Annually

September 23, 2013

De-Fund Obamacare Proposal Also Calls for Med Mal Damage Caps

by Levin & Perconti

Over the next few week expect to hear endless talk about the debt ceiling and a potential government shutdown. Republican and Democratic leaders are again at odds over various federal fiscal policies, and the sides are, yet again, locked in political stalemate.

Most recently, on Friday a bill passed out of the Republican-controlled U.S. House of Representatives that represents the preferred GOP plan. As New York Times story on the situation explains, essentially, the bill funds the government until the end of the year. But it is also filled with a range of other, unrelated provisions. Most notably, the law also calls for the complete de-funding of provisions of the Affordable Care Act (so-called Obamacare).

As a practical matter, there is virtually zero chance that the bill would make it out of the Democrat-controlled Senate or be signed by President Obama.

So what does any of this have to do with medical malpractice?

Hidden in the legislation that passed the House of Representatives on Friday is a provision that we have often discussed on this blog: arbitrary medical malpractice damage caps which would apply to all fifty states.

Federal Medical Malpractice Cap Laws
The law which pulls funding from Obamacare also creates a $250,000 cap on non-economic damages in medical malpractice cases. This would represent an unprecedented federal takeover of what has always been a states-rights issue. At the same time, of course, the GOP repeatedly claims to be the party that respects federalism and state’s rights. The hypocrisy is vivid.

In fact,the federalism issue is even leading many supporters of caps to reject these federal proposals. For example, a Pop Tort article on the situation points to former U.S Senator Ben Nelson. Now the head of the National Association of Insurance Commissioners, Nelson previously worked within his home state to pass devastating damage caps. Yet, he is opposed to this federal law, precisely because he believes that federal lawmakers have zero authority to encroach on this topic. It should be left to the states.

This sort of packaging different issues together in a single proposed bill is a very long-standing traditional among all legislative bodies. In particular, unpopular proposals are frequently added to larger measures in the hopes that no one will notice the addition or that opponents will grudgingly vote for the whole package.

Fortunately, as already mentioned, this exact package has virtually no chance of advancing. Yet, that is not to say that under no circumstances would these provisions make it into federal law. Compromises happen all the time, and it is not inconceivable for usual supporters of patient rights to cave on this issue in order to reach agreement on a larger bill that avoids a government shutdown.

For that reason, it remains incumbent upon advocates to continue to rallying cry on behalf of legal fairness. It is simply unacceptable for the costs of dealing with a catastrophic injury following medical malpractice to be shifted to the victim and taxpayers. The responsible parties should be required to pay for the full consequences of their negligence as deemed appropriate by a jury.

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July 3, 2013

Corporate Front Groups Use Civil Justice System Only When It Suits Them

by Levin & Perconti

Hypocrisy is a sad underlying theme among many attempts to use legislation to take away legal rights for those injured due to medical malpractice. Relying on public relations spin or confusing, misleading jargon, many of the biggest “tort reform” groups spend million on lobbying efforts to sell the idea that full and fair access to the civil justice system is somehow the cause of so-many problems: rising healthcare costs, fleeing doctors, increased taxes, and more.

If you believed even half the arguments made by some opposed to equal justice under the law, one might get the impression that the number one threat to the country was lawsuits filed by greedy exploiters.

Of course, advocates have pointed out again and again, virtually all of those claims are nonsensical. Instead, tort reform arguments are mostly just a cover for large interests to avoid being held fully accountable for their mistakes that harm others. It is perfectly natural for businesses to seek profit. But it is wholly unacceptable to do it in a destructive ways that hurts others and skirts legal fairness.

Do as I Say, Not as I Do
To get an idea of what many of these large corporate interests fighting for “tort reform” really think, it is best to look at their actions instead of their words. It does not take much searching before discovering that they seem perfectly happy using the civil justice system when their own interests are at stake. It is a classic example of legal hypocrisy--bashing the system when others seek fairness but exploiting it for one’s own purposes.

Recently, the President of the American Association for Justice penned a letter which touches on one recent case where the corporate groups appear eager to use the courts themselves.

As explained in the letter, one of the largest groups seeking to take away consumer legal rights, the American Tort Reform Association (ATRA), filed an amicus brief challenging a federal group charged to protect workers, the Occupational Safety and Health Agency (OSHA), from changing language to a safety protocol known as the “Hazard Communication Standard.” The Standard in question refers to labeling requirements for hazardous materials.

Essentially, the ATRA is arguing that any new rules “preempt” common law rules regarding safety with these materials, such as a duty to warn. In short, the tort reform front group is trying to lower the safety standards, immunizing those who may cause harm by violating these safety principles.

Tort Reform - Interwoven Principles
While it may seem bizarre that somewhat arcane preemption rules regarding dangerous chemicals may have any impact on medical malpractice lawsuits, it is important to keep in mind the basic principles at stake. The arguments made by the ATRA in this brief are similar to those brought forward in many arguments seeking to lower safety standards in all settings--including the hospital--at least for the purpose of allowing those harmed by poor care to seek full legal recovery.

For that reason all of us who believe in equal access to the justice system must stand arm in arm against all attempts to take away legal rights in any setting.

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June 17, 2013

New Research: Malpractice Lawsuits Critical for Patient Safety

by Levin & Perconti

Accountability breeds improvement. That basic mantra has long-been shown true in many different kinds of settings. Focusing on quality and care in any job depends on the consequences of providing inadequate services. It does not take much deep thinking to realize that quality may be sacrificed if mistakes do not have repercussions.

Of course, the quality of medical care is one of the textbook examples of this idea. When doctors, nurses, and others have little to lose for providing substandard care, then the incentives to improve patient safety is minimal. Conversely, when patients have fair access to the judicial system to file medical malpractice lawsuit when harmed by negligence, then all those involved in the caregiving industry have obvious incentives to take steps to minimize errors.

That principle was verified yet again in recent research soon to be published in the NYU Law Review.

Med Mal Lawsuits - More than Money
As discussed in a recent HRMR Newsletter, the study was conducted by legal academics, and is to be published in an article entitled, ‘A Dose of Reality for Medical Malpractice Reform.”

The author explains that the research sought to examine the idea pushed by some pursuing tort reform legislation. The claim: med mal lawsuits were detrimental to patient safety efforts because the lawsuit encouraged less openness and honesty about medical errors.

To address the question, the researcher conducted more than two dozen interview with those involved in the process, like risk managers, and patient safety officers at hospitals. In addition, over 400 of the same individuals participated in an email survey, with ten more follow up interviews with survey respondents.

What were the findings?

The article summary notes that trends are clearly headed in the direction of more openness and honesty regarding patient safety information. Contrary to the fears of tort reformers, the researcher found that medical professionals are less and less likely to avoid honest discussions because of malpractice fears.

Interestingly, the author found that the trend may be connected to state laws. But those laws had nothing to do with limiting patient’s access to the judicial system (tort reform laws). Instead, new laws requiring hospitals to expand mandatory reporting of errors have contributed to the shift.

In fact, med mal lawsuits themselves are becoming critical data points for understanding medical errors. The professor explained, “Not only did the hospitals in my study report integrating information from lawsuits into their patient safety efforts, they also reported that lawsuits revealed new and useful information about incidents of medical error,”

The bottom line: Medical malpractice lawsuits play a critical role in improving patient safety. Far from being an unfair burden, this litigation is vital to tracking errors and ensuring changes are made to improve the system. After all, if medical facilities wish to minimize their liability there is one straightforward way to do so: minimize their harmful errors.

For help understanding your legal options in Illinois following a medical error or preventable adverse outcome, please contact the attorneys at our firm today.

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June 3, 2013

ITLA President Responds to Letter Regarding Proposed Illinois Legislation

by Levin & Perconti

The battle over legal fairness in Illinois rages on. Many believe that ‘tort reform” is synonymous with damage caps. However, big companies, chronic defendants, and high-profile interests groups can chip away at the legal rights of community members in many other ways. For example, as we often discuss, mandatory arbitration agreements or other forced alternative dispute-resolution processes usually allow defendants to move matters into a forum where they have the upper hand. Rulings about timing requirement, sufficient evidence standards, and other issues similarly use various procedural grounds to limit the amount that companies have to pay when their errors cause harm to others.

Considering the damage that comes with these rule changes, many advocates work within the legislative process to fix the loopholes and create legal safeguards for community members. For example, take a bill that was debated in the Illinois General Assembly recently, Senate Bill 1912. The bill changes various rules regarding civil procedure in Illinois courts. Most notably, the law would require that defendants settling a case for damages must tender a release to the plaintiff within 14 days of reaching the agreement. It also requires that the defendants must pay the settlement within 21 days of the release. Failure to follow these rules would result in required interest payments.

This seems like a straightforward piece of legislation. If parties settle a matter, the defendant who is paying for damages is required to act in a timely fashion to meet the settlement demands. Stall tactics and delays need to be cut out to ensure more timely accountability and redress for those trying to recover after a loss.

Expectedly, those openly hostile to the legal rights of community members were quick to make wild claims about the dangers of this law. Most of those claims refer to clogging up the court system and preventing settlements. Recently the president of the Illinois Trial Lawyer’s Association, Gregory L. Shevlin, wrote a letter to the editor in response to one of those attacks. He noted the reality: the families who need this legislation most are those who must deal with the consequences of an error immediately.

For example, families of those who are severely injured due to medical malpractice do not have the benefit of waiting weeks, months, or even years before dealing with the reality of the error--hiring nurses, getting special equipment, paying for therapy, etc. They need to act immediately, and it is only logical that those responsible for the harm act in a timely fashion to provide redress owed so the family can deal with the consequences.

When the Illinois General Assembly session ended last Friday, the House took up the vote on the bill that the Senate had already passed. On Tuesday, May 28th the House also voted to pass the bill (67 to 50). In the next two days--the final days of the session-- a concurrence was passed by the Senate in committee and on the Senate floor. As a result, the bill officially passed both Houses and will be sent to the Governor for his signature. If he signs, then the measure will become law, helping many families throughout the state.

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May 29, 2013

Back to the Basics: Understanding Medical Malpractice

by Levin & Perconti

Last week Forbes published a helpful primer that goes over many general, but critically important and practical topics related to medical malpractice. Considering the large number of people who may one day be affected by a medical error, it is helpful to re-visit some of the general issues that all Illinoisans should know about the legal ramifications of medical negligence.

For one thing, as the article notes, everyone should understand the full scope of the problem. Negligence by medical professionals is not a fluke occurrence--it is the third leading cause of death in the country behind only heart disease and cancer. Every 43 seconds there is another payout in some form--settlement or court judgement--as a result of a medical error.

Considering that a large number of errors go without legal consequence, this is a truly staggering number. According to recent estimates, even though about 200,000 people are killed every year as a result of medical malpractice, only 15% of personal injury cases relate to medical errors. This is in large part because of the expense and complexity of these legal cases. Proving malpractice can be challenging, because of the nuance in the law and the cost of hiring experts, etc. This is one of many reasons why it is important to have the aid, as soon as possible after an incident, of an experienced attorney. The legal professional can provide advice on the likelihood of success.

Avoiding Negligence in the First Place
Even in the best situations, where a significant settlement or judgment is reached, all victims would give it all back if the error itself could be reversed. Financial damages do not bring back a person who died because of an error or improve one’s health that was forever damaged because of a mistake.

So what can anyone do to lower their risk of being harmed in the first place?

The Forbes article discusses how proactive medical decisionmaking is the best that anyone can do to position themselves to receive adequate care. That means browsing the track-record of different medical facilities or providers when one has a choice (i.e. not an emergency situation). It also means doing a bit of research on one’s symptoms and preparing questions to ask the doctor. Questioning often spurs the professional to check something that he or she failed to check before.

Importantly, the story notes that it is important to “Speak up and advocate for your own well-being. If patients sense that something is wrong, they should tell—or ask—their healthcare providers. Although it’s important to trust your doctor or nurse, it’s also important to listen to your body … and use common sense.”

Many misconceptions about general medical malpractice issues still exist. Some worry that pursuing a case may result in higher medical payments or that a doctor may refuse to treat them after a case has begun. On the political side, some still believe that these lawsuits are connected to healthcare costs or that right of patients need to be taken away. Remember: these are all myths. The general principles of medical malpractice law are simple, holding medical professionals to the same standards of reasonable care that apply to everyone.

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February 1, 2013

Many Doctors Not Disciplined After Large Malpractice Settlements

by Levin & Perconti

Our Illinois med mal attorneys frequently discuss the deterrent role that lawsuits play in preventing future medical errors. As in any field, human behavior changes in response to causes and effects following certain outcomes. The consequences of paying for the losses incurred by a party in a medical malpractice lawsuit acts as a significant spur for medical professionals to change behavior to limit similar problems in the future. If there were little to no consequences for cutting corners, failing to triple check, or otherwise providing appropriate care 100% of the time, then it is easy to imagine that medical professionals would commit less time and resources to improving patient care.

State Accountability
The important role played by these lawsuits is amplified by the fact that most state regulatory systems do not have the ability to fully police the conduct of licensed professionals. There are many stories of various professionals continuing to work after harming many patients--or moving to a new state to work after losing a license in a different state. Relying solely on state or federal regulators to appropriately deter poor care inspires little confidence.

That is true throughout the country, not just in Illinois. For example, the State Journal recently discussed how Wisconsin handles (or fails to handle) punishment following possible medical malpractice. A story discussed how doctors who made even the most egregious errors often avoided punishment following medical malpractice settlements.

One man’s case was used as an example. The patient suffered from back and leg pain as a result of a work injury. To help deal with medical issues the man was schedule to have surgery on his right side--where the pain originated. However, the surgeon made the head-scratching mistake of performing the operation on the wrong side of his body--the left. The result was that the patient ended up with pain on both sides of his body.

Eventually a medical malpractice lawsuit was filed and a complaint was made with the state’s medical examining board. The suit was resolved before trial for nearly $3 million. Yet, the medical examining board did next to nothing to discipline the doctor. It is important to note that operation on the wrong body part is a “never” event--one of the most egregious medical errors that simply should never be made.

Unfortunately, journalists found that this one case was far from unique. Many other doctors committed similar errors, were forced to pay significant settlements, but faced no official sanction from state regulators. Were it not for the private residents exercising their rights to the justice system, then the medical professionals would have gotten away without any accountability.

The underlying point is that community members who are harmed as a result of poor medical care (or their loved ones) serve a vital safety role by coming forward and sharing stories of poor medical care. If you are in Chicago or throughout the state, please contact our Illinois medical malpractice lawyers today for tailored advice and support related to your situation.

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January 19, 2013

Doctor Suggests Malpractice Lawsuits Were Effort to Drive Him Out of Practice

by Levin & Perconti

The relationship between medical professionals at a hospital or in a clinic may affect patient care. While it is tempting to picture medicine as a unique effort that occurs in isolation between a doctor and a patient, that view is too simplistic. Instead, an individual patient’s care hinges on so many factors--a primary doctor, other specialists, those who read the tests, aides who perform basic services, nurses who inform doctors of conditions, office staff that deal with records, device manufacturers that produce equipment, and more. Problems with any one individual may result in serious errors and harm.

That is why more and more attention is being placed on the actual relationship between all those who work in a medical setting. When those relationships are strained, then communication is often lacking. Medical errors are far more likely to happen in those situations. While strong working relationships are important in any profession, the need is perhaps strongest in the medical field because life and death are literally on the line.

Dysfunctional Working Relationship
One assumes that most medical teams have strong bonds which are used to ensure all medical patients receive adequate care 100% of the time. But that isn’t always so. For example, a new VC Star article discusses a unique case where a doctor facing more than twenty medical malpractice lawsuits is pointing the finger at his colleagues. Specifically, he is suggesting that he was being forced out of his practice because others with whom he worked did not want to pay more than a million dollars in bonuses and fees that he was owed.

In a legal action filed last month, the neurosurgeon claims that his privileges at a local hospital and independent-contractor relationship were terminated without a proper investigation. The termination was presumably due to the doctor’s numerous medical malpractice lawsuits. Facilities obviously have an incentive to ensure that those working in their building--regardless of the specific employer/employee relationship--provide quality services that do not harm patients.

Yet, in his lawsuit the doctor suggests that patient safety was not the reason for his termination. Instead, he claims that he was driven out because of the facility’s desire not to pay him over a million dollars in promised bonuses. He suggests that he generated nearly three million dollars for the business, and that he was promised certain income based on the revenues he provided. He further argues that if the facility would have performed a full investigation, he would have been cleared.

In response, the hospital’s attorney minced no words in denying the improper motivation for the doctor’s dismissal. He explained, “It sort of reminds me of the definition of chutzpah where someone murders their parents and then pleads for mercy on the basis that they're now an orphan."

The facility suggests that the surgeon’s privileges were terminated because of the myriad of problems that arose in this 17 months in service. Specifically, different patients argued that many problems developed following his work, including infections and complications that often required revision surgery. The doctor’s use of medical devices like rods and interbody cages was called into question.

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January 15, 2013

Hulk Hogan Files High-Profile Med Mal Lawsuit

by Levin & Perconti

Medical malpractice does not discriminate. When on an operating table or rushed into an emergency room, if the care provided is below a reasonable standard, then the patient will suffer harm--it can affect the old and young, rich and poor alike. Considering that life and death are on the line and anyone may be harmed, improving medical care and eliminating preventable mistakes should be a goal for all of us.

Those families who are personally affected by a medical error know well the consequences of the problem. But for many others, the seriousness of the issue may not be apparent. Often it is only when high-profile stories of malpractice make headlines that the reality of the problem hits home. Headlines are usually made only when large settlements or verdicts are announced or a celebrity is harmed by poor care.

Celebrity Lawsuit
For example, the Times Leader recently reported on a new medical malpractice lawsuit filed by professional wrestler and reality show star Hulk Hogan. The allegations made in the complaint which initiated the legal matter suggest that the wrestler believes his spine doctors performed unnecessary surgeries on his back. The procedures allegedly caused him permanent damage which greatly altered his ability to continue his professional wrestling career. The suit names several doctors as well as a spine clinic where Hulk Hogan received treatment.

Financial Motivation?
The lawsuit alleges that the surgeries were performed on the well-known athlete for the spine clinic’s own financial gain--not because the wrestler actually needed the operations. Unfortunately, each Chicago medical malpractice attorney at our firm is acutely aware of the skewed motives of some medical professionals. That is especially true in certain non-emergency areas, like some back procedures or cosmetic surgery cases.

In Hulk Hogan’s case, the lawsuit suggests that he had several endoscopic surgical procedures performed which damaged his already injured back. The complaint suggests that the doctors did not explain that the endoscopic surgery could not provide permanent relief. In addition, “scare tactics” were allegedly used to convince the wrestler to have the operations as an alternative to traditional surgery. Other doctor’s suggested that he have traditional surgery to correct his spine problems. The professionals at the defendant-facility suggested otherwise. Hogan took the surgeon’s advice, but even after several operations he never experienced anything more than temporary relief.

Significant Losses
In making a damage claim in the suit, Hogan suggests that he lost considerable revenue because of the negligence’s effect on his career. Specifically, he suggests that the malpractice cost him at least $50 million. One can assume that these damages refer to lost income he would have received had he been made healthy by the operations and been able to continue his wrestling and entertainment career. These legal cases allow plaintiffs to explain the full extent of their losses caused by malpractice. That often includes financial losses from lost wages. Of course, these damages must not be speculative, but it is not impossible for Hogan to be able to show actual documentation on past earnings and future opportunities which were lost as a result of his back problems.

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