Illinois Medical Malpractice Blog

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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Hospital Rules on “Loss of Chance” Medical Case

The Role of Experts in Medical Malpractice Cases

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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A Stoplight Approach to Patient Safety

Back to the Basics: Understanding Medical Malpractice

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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The Challenge of Altered Medical Records in Malpractice Cases

Nursing Levels -- Cutting Back Hurts Patients

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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States Continue to Pass Misguided “Tort Reform” Laws

Med Mal Arbitration Decision Vacated

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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Board to Vote on Illinois Med Mal Settlement

Metal on Metal Hip Implants and the FDA Approval Process

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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Help Educate Others About Patient Safety

Military Med Mal

It is the same in any profession: the longer you work the more real-world skills you obtain. Learning about time pressures, unique clients, office dynamics, work-life balance, how to handle an emergency, and other issues can generally not be learned from a book. No matter how long one is forced to train and study before entering a field--from medicine and law to accounting--there is no replacement for on-the-ground training that comes with experience. Obviously this is something that society has understood since the earliest days with the use of apprenticeships and other training programs.

Most consumers also understand the value of experience. It is no wonder than many professionals, including doctors and lawyers, prominently display their years and manner of experience so that prospective clients and patients understand what they are getting.

When It Truly Matters
Obviously quality matters in all field, but there are some situations where the stakes are dramatically higher. That is most notable in the medical field. More specifically, delicate treatments like surgery are perhaps where the stakes are the highest--a patient is often incapacitated and relying solely on medical professionals to not only fix their problem but ensure they are not harmed. It is not an overstatement to say that life and death may literally be on the line.

Yet, like other professions, inexperienced physicians are more likely to make preventable errors with patients. A recent Ring of Fire story touched on that issue, noting that it is important for all medical patients to be aware of exactly who is treating them, particularly when it comes to surgeons.

Researchers have worked hard to pinpoint various factors that affect surgical outcomes. The experience of the professional leading the operation has long been known to be one of those factors. That experience combines with things like workload, physician fatigue, quality of medical equipment, and training of staff members to increase the chances that some preventable mistake will strike and cause a severe injury or even a wrongful death.

Even things as seemingly innocuous as the time of the day that the surgery is performed can impact outcomes. However, like all the others--communication, training, etc.--with awareness comes the ability to change things to take the problems into account. For example, the article reminds that “these issues can be addressed, as they are ‘system’ problems rather than unavoidable and inherent ones. Unfortunately, though, we have not yet found a way to require these system issues to be adequately addressed.”

In highlighting the severe consequences of surgeons working without experience, the article shared one tragic example. Not long ago a 59-year old patient went into the hospital for what was supposed to be a straightforward hernia operation. However, things did not go as intended, and he died during the operation. It was only later, when it was too late, that the grieving family discovered that the surgeon connected to the case was brand new. He had only been licenced shortly before and had never handled this hernia procedure before.

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Possible New Rules for IL Med Mal Contingency Fees

New Levin & Perconti Illinois Med Mal Settlement

No diagnosis is as a traumatizing these days as cancer. The condition remains one of the world's largest killers, and even those who survive are often forced to endure countless hours of stress, worry, intrusive medical conditions, serious side effects, and more. All of that is not to count the suffering that their loved ones endure, forced to wait and worrry without much ability to help matters on their own. There is no getting around around the fact that a cancer diagnosis is a terrible experience that no one ever wants to go through.

We've frequently reported on one of the common ways that medical malpractice is implicated in these matters: a delayed diagnosis. While no one wants to be diagnosed with cancer, if cancer does exist, all of us want to learn about it as soon as possible. That is because the treatment for the invasive condition often hinges on timing. The more that the cancer is able to progress without treatment, the harder it often is for doctors to find a full cure. Lives literally hang in the balance when it comes to proper cancer diagnoses. Sadly, time and again some medical providers miss signs of the cancer in test results or fail to properly order tests in response to symptoms which might suggest cancer. When this happens, it is critical for those invovled to get in touch with legal professionals to ensure the delayed diagnosis is accounted for. Accountability matters in these situations to improve care for patients down the road.

But what about when the opposite mistake occurs: when cancer is diagnosed even though it doesn't exist?

Surprisingly, this happens more than one might think. For example, a case out of the UK is illustrative of the scope sometimes present in these situations. All too often the misdiagnosis is not an honest mistake, but an error made specifically because of financial incentives of the medical providers.

According to the report on the case in the Third Age, the medical professional in this latest situation may be charged with misdiagnosing a staggering 450 patients with breast cancer. They didn't have it, but he said they did. Trusting their doctor, the patients then underwent completely unnecessary surgery. Apparently, at least 100 women have already complained to officials regarding the mistakes, but the number of affected patients may reach far higher.

It is easy to see how many of the women hurt by this form of malpractice may never learn of the situation. That is because, we all trust our medical professionals to be completely honest about our situation and act prudently in our best interests. When cancer is diagnosed and surgery recommend, how is a patient to ever know that the surgery was not needed in the first place? In fact, it is this difficulty in second-guessing doctors that may led some unscrupulous physicians to risk the false diagnosis. Sadly, there remains a strong financial incentive for various professionals, including surgeons, to call for as many operations as necessary. The more surgeries that are performed the more money the medical professional makes. While most doctors wouldn't dream of hurting patients in this way for financial gain, it only takes a few outliers to cause serious problems to hundreds of unsuspecting patients.

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Doctor Loses License After Controversial Autism Therapy

Levi & Perconti Attorneys Win Two Jury Verdicts in One Week

Only a minority of medical malpractice cases that are filed go to trial. That is either because the others are dismissed or result in a pre-trial settlment. Matters that go to trial are more costly, because more expensive legal work is required. In most cases, it is preferable for the parties to reach an agreement on an amount of compensation that avoids those expenses and ensures fair redress for the harm caused. However, there are times when those settlements cannot be reached. That usually results from one of two situations. Either the parties are not on the same page when it comes to a specific settlement amount or the defendant refuses to believe that they were actually negligent. Therefore, trials in malpractice cases are most common in situations where the amount of damages is disputed and in cases where the existence of negligence is a close call and could go either way.

In any event, when a case does go to trial, one of the most critical aspects of the resolution stem from evidentiary rules. Clients are often surprised by the complexity of these procedural rules about what can and cannot be said. It is not necessarily as simple as having any piece of information that might be relevant introduced at trial. Just because something is relevant is not the deciding factor--other barriers exist. Arguing over those barriers is often extensive. The evidentiary decisions are made by the judge, not the jury, and therefore may form the basis of an appeal by the party losing a case.

Medical Malpractice Appeal
For example, the Mitchell Republic published a story recently on an appeal reaching a state Supreme Court regarding the admissability of certain evidence in a medical malpractice case. The matter stems from a wrist surgery in which a metal plate and screws were installed in a wrist. The patient claims that the screws were placed in such a position that is caused her extreme pain. She asked for compensation for the pain and medical bills.

The patient had a video deposition taken of an orthopaedic surgeon who claimed that the doctor in this case breached the standard of care by failing to explain to the woman the risk of complications regarding the placement of the screw. However, the trial judge excluded the section of the video at trial. The jury was only allowed to see a portion of the video where this statement was not made. The judge did not allow that section of the tape to be displayed becase, he ruled, the plaintiff's attorney did not properly disclose the section to the defense counsel before trial. There are strict rules about how information needs to be shared between both sides in a civil law case.

The plaintiff attorney contests the matter and argues that the proper disclosure was given. Therefore, the exclusion of the full video at trial was in error which caused harm to the patient's case. He made that argument in front of the state's Supreme Court this week. Depending on the court's decision, the matter may be done for good or it may be sent back for a re-trial with the full extent of the case heard by a new jury. Also, if sent back, it is possible for the parties to decide to settle the matter.

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Cleanliness Program Leads to MRSA

Towel Left in Patient After Surgery

The News Herald reported recently on a surgical error story that symbolizes the consequences of medical professionals not acting carefully in critical situations. According to the report, a woman in a medical malpractice case was diagnosed with colon cancer. Not long after her diagnosis she was told she needed to have surgery on her colon--a resection. Heeding the advice of her medical professionals, she agreed to the surgery.

Sadly, the medical team that conducted the operation was careless. It seems that during the operation a surgical towel--measuring one foot by two feet--was left inside the woman's upper abdomen. As often happens in these situations, the problem was not discovered for quite some time. It wasn't until four months later that the towel was identified. Another surgery had to be performed to remove it. Also, because of the damage caused by the product, two-thirds of the woman's small bowel also had to be removed.

This sort of damage is not inconsequential--it has had very real impacts on the woman's life. A representative for the family explained that "the loss of the bowel interfered with her ability to keep food from rushing through her system and has caused an inability for her to eat many foods, frequent bowel movements and the inability to leave her house.”

A medical malpractice suit was eventually filed. The parties were unable to reach a settlement in the matter, and so it went to trial. The jury in the case recently returned a verdict in favor of the woman. They found the medical team negligent and awarded the plaintiff just shy of $1 million for her losses. A representative for the family admitted his shock that the case went to trial at all, because the negligence was obvious. He suggested that this was a "frivolous defense," because obviously leaving a two foot towel inside a small woman's body (she is only five feet two inches and weighs 95 pounds) was malpractice.

Obvious Medical Negligence
This case is an example of obvious malpractice. During a surgey the patient is often not conscious and is at the full mercy of the medical professionals. Failing to act prudently often leads to egregious mistakes like the one in this case. Virtually every time that this sort of sitution arises the elements of a medicla malpractice will be met--a breached duty that causes harm. However, that does not mean that there won't be some litigation in the matter. That is because parties often disagree on the extent of the damages. In other words, even if the medical defendants conceed that standards of care were breeched, they may suggest that the harm is minimal. Attorneys are still often required to advocate fiercely in these instances to protect the full rights of the injured party.

If you or a loved one may have been harmed by careless medical professionals--doctors, nurses, aides, and others--please get in touch with our office to see how we can help. Our team understands that many community members hurt by malpractice often struggle getting complete information about the quality of care they receive. Unfortunately, on many occassions it is only after a lawsuit is filed that the complete details of the care come to light. Because of that, no one should hesitate to call because they are unsure about their care. Visiting with an attorney and sharing your story does not obligate you to anything, it only provides you a way to receive more information to make an educated decision about how to proceed.

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Comprehensive New Report: Economics & Medical Errors

Medical Malpractice Premiums & Tort Reform

The Nashua Telegraph reported recently on the ruling a high-profile medical malpractice case that sets standards for how certain "alternative" adjudication procedures are allowed in certain med mal cases. The ruling is a reminder of the various facets of different "reform" efforts seeking to deny the basic right to a jury trial in these injury cases.

The Malpractice Law
There is a misconception that damage caps are the only major "tort reform" effort being pushed in states across the country. The reality is that there are many different kinds of laws being proposed and sometimes passed which change various facets of the civil justice system. In virtually all cases, however, the laws are pushed by big defendants (like insurance companies) seeking to limit the practical rights of community members seeking to hold others accountable for their negligent conduct.

The law at issue in this case was the use of a "panel" to determine possible medical negligence in cases before a traditional trial with a judge and jury. The law was passed in NH several years ago, but the state's Supreme Court has finally heard a case challenging the validity of the law. According to this story the court upheld the law in large part, though it did alter some details of the way the panel's rulings are used.

The plaintiff in this case was the family of a woman who died after, her family claims, she was not referred to a specialist in a timely manner. The family sued a hospital and medical providers following the tragedy. However, because of the law, the case went to a panel of three which determined that there was no negligence on the part of the hospital. The family appealed. Initially, a court sided with the family and found the panel to be an unconstitutional alternative to the right to a jury trial. The case eventually made it's way to the highest court in the state.

In a ruling just handed down, the supreme court held that the panels are largely constitutional. These panels are formed in the aftermath of the filing of a malpractice claim in the state. The panel then spends a day or so reviewing the evidence before reaching a ruling. In general, these panels have very lenient rules regarding the admissability of evidence, use of witnesses, and other trial practice details. This opens the door for a range of problems with the fairness of these hearings.

A case can still go to trial following the panel's decision, however, the jury in the case will be told of the findings. In addition, a judge has discretion regarding how many details of the panel's deliberations will be shared with the jury. Of course, it is obvious that this information can significantly influence the decisions made by the factfinder in a traditional trial. Considering the less stringent evidentiary rules in the panel deliberations, this is often a way for less fairness to seep into the process. In addition, it is a another timely, costly roadblock thrown in the way of those hurt by medical negligence before ultimately receiving compensation for their harm. It remains disappointing that those who claim to want to cut down on litigation costs continue to push for laws which just add more layers to the process.

Fighting for Plaintiff Rights
This case is a reminder of the vital importance of fighting hard against legislative maneuvers that seek to alter the rights of community members in all cases. Unfortunately, these laws are often dressed up in postivie-sounding language that makes it seem like a logical change to voters. But what residents do not know is that the practical effect of these laws are almost always the same--making it harder for those hurt to recover and further insulating big companies from having the pay fully for the consequences of their negligence.

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Comprehensive New Report: Economics & Medical Errors

Medical Malpractice Premiums & Tort Reform

Surgical errors may be the prototypical form of medical malpractice. That is because they involve the classic scenario of a patient who is in the complete control of the medical professional (often under anesthesia) with complex bodily invasions that often include life and death issues. Of course, attorneys working on these cases appreciate that patients are at their most vulnerable during surgeries, and all medical practitioners must abide by aprropriate standards of care at those times.

A recent story in the Star Exponent is an example of this type of case. According to the reports, a medical professional was sued by a former patient who claimed that problems during surgery left her deformed and with chronic pain in one arm. The problems, the plaintiff alleged, stemmed from inadequate care during a collarbone surgery on the left side of her body. According to the complaint filed with the court that initiated the suit, the defendant-doctor performed a "carpal tunnel release" and an "open reduction internal fixation" on the plaintiff's left clavicle. The idea was that the work would help relieve pressue and pain along the nerve in the wrist. The operation also involved repairing bones in the area with artificial implants.

Unfortunately, instead of improving her situation and relieving pain, according to the patient the operation only made things worse. And she suggests that probems during the operation are the cause. In particular, the complaint explains that, in the middle of the procedure the doctor determined that there was a problem with one of the bones. To correct this he attempted to screw in a six inch metal plate into the left side of the woman's upper body. Unfortunately, because of poor bone condition, he was unable to screw the plate to the clavicle. Instead of recogonzing the lack of feasibility of completing the operation in this case, the doctor plunged ahead. He kept the metal plate in the body and tried to keep it in place with sutures instead of screws.

This decision proved incredibly harmful for the woman. According to the complaint the sutures "acted like a saw" and literally cut one end of the collarbone off inside her body. The doctor acknowledged this in a follow-up visit but explained that the snapped bone was caused by it's poor condition, not the sutures. All of this caused the woman continual extreme pain, and she has lost significant mobility in the arm.

The family eventually filed a medical malpractice lawsuit alleging negligence and seeking accountability for the long-term harm caused by the surgical error. Even though the suit was filed last October, it is only now that a trial date has been set--for September of next year. This is a testament to the lengthy time-frames of many of these cases. Also, it is unclear if the case will actually go to trial, because on many occassions families and medicla professionals are able to come to an agreement on fair compensation without the need to go to trial.

Surgical errors are far too common with far-reaching consequences on the lives of the patients and their families. If you or someone you know may have been harmed by inadequate care during a surgery, please reach out to our lawyers to see how we can help.

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Subbing Out Surgeons

Disclosing Sleep Fatigue Before Surgery

The "typical" medical malpractice case involves something pretty clear: a patient receives the wrong medication and is injured, a surgeon accidentally makes a mistake which causes harm, or a diagnosis is botched leading to long-term problems. In all of these incidents a medical patient does not receive care up to reasonable standards and the patient is harmed as a result. But it is not always that simple--and complex legal issues might arise in those more atypical cases.

Third-Party Liability in Med Mal Cases
For example, not long ago one state court addressed an issue related to third party liability for medical mistakes. The case involved a doctor who failed to explain how a patient's medical condition would affect her driving ability. The patient subsequently drove recklessly and caused serious harm to another. The patients had liver and kidney problems which come with latent driving risks. She wasn't warned about those risks and blacked out when behind the wheel--causing the serious accident.

The individual hurt by the poor driving filed suit which named the doctor as a party. The argument was that the doctor's failure to warn the medical patient of the effect of her medical condition on driving proximately caused the serious car accident. If the doctor had properly advised the women, then she would not have drove and the harm would not have occurred.

These sorts of third-party liability issues are quite complex, and various courts reach different conclusions regarding the medical professional's obligation to warn of these dangers and the potential liability if harm arises as a result of that failure to warn. In this cases, as in many of them, the court refused to allow the case to go forward. The main issue was that there was no doctor-patient relationship between the injured plaintiff and the doctor. Various medical malpractice rules require this relationship in order for the "duty" element of these negligence suits to be met. In other words, the specific defendant must have owed the specific plaintiff a "duty of care" in order to be held liable for harm to that plaintiff. In this case the court did not find that duty element met, and so the case was dismissed.

However, this specific ruling does not mean that doctors or other medical professionals in these cases would never face consequences for failing to warn patients of dangers that cause harm to others. For example, in certain situations the patient themselves might bring a doctor into a lawsuit for indemnification. If the injured third party sues the patient who actually caused the accident, then the patient themselves might bring the doctor into the suit under the theory that the doctor should repay the patient for any judgment because the doctor's negligence might have caused the economic loss. The duty issue is not necessarily present in that situation because it involves the actual medical patient seeking to hold her doctor liable--the requisite patient-doctor relationship is present.

All of this is a reminder of the complexity in many negligence cases, including those stemming from medical malpractice. Lawyers who work on these cases can explain if third-party liability issues might be a factor in your individual situation. In many circumstances the potential liable parties are not readily apparent, but more in-depth research reveals all those who may have played a role in an accident.

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A recent editorial published by CNN delves into a critical issue that perennially lies underneath various policy making proposals at the local, state, and federal levels--the need to protect patient legal rights. Fortunately, we have not heard as much this election cycle about tort reform proposals as we have in the past. But it is critical not to assume this means that the issues are behind us. Not only do we need to fight for the rights of those who live in places where laws already severely limit their right to fair compensation following malpractice, but there are always new threats made by insurance companies and big medical interests to press for more changes.

The CNN editorial, written by the President of the American Association for Justice, points out that tens of thousands of patients are killed each and every year as a result of preventable errors. Hundreds of thousands (perhaps even millions) more are hurt unnecessarily as consequence of those mistakes. When taken as a form of injury, medical malpractice is the sixth leading cause of death in the country. The consequences are not only medical--there are very real financial losses. According to the editorial, every year nearly $27 billion is spent unnecessarily because of this negligence.

All discussion about changing the legal rights for patients and their families must keep those stats in mind. Unfortunately, the discussion often ignores those safety issues. We must keep bringing it up so that the real consequences of medical malpractice are part of the discussion.

As the editorial makes clear: "when no one is accountable, no one is safe." There is a misguided idea that medical malpractice lawsuits are somehow a problem themselves, when instead they are simply a symptom of a medical system that has a long way to go before being as safe as possible. The obvious reality is that instead of focusing on taking away legal rights guaranteed by the Constitution, reformers should focus on eliminating the poor care. Yet, when those pushing for the laws are the very ones who stand to gain financially from legal immunity for certain medical malpractice losses, then there is little chance of honest assessments of the issue.

Texas Example
The editorial points out the Texas example as the prime explanation for how these laws simply do not do any good for community members. The state passed very severe tort reform laws (as amendments to their constitution) in 2003. The changes mostly impact those hurt by medical negligence who do not have obvious economic losses due to time away from the jobs--children and the elderly are most harmed.

So what did the state gain for taking away these legal rights? Nothing really. Studies have shown clearly that in the years after the passage of the laws the health care costs in Texas did not budge, nor were there any changes in the number of doctors. In addition, Texas currently ranks, by some estimates, as having the lowest quality of health care in the country.

Many independent groups, including the Government Accountability Office, note repeatedly that there are no significant medical cost savings to be had by taking away the rights of medical patients. No credible study has actually linked lawsuits to "defensive medicine." Instead, those seeking to gain personally from these laws, prey on the struggles of community members with rising health care costs to convince them that these laws will make a difference. They won't. We all need to stand arm and arm against these false arguments and downright dangerous policy proposals that do nothing more than help big interests at the costs of regular residents.

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Jury Awards Family $4 Million Following Medical Malpractice - Wrongful Death Lawsuit

Illinois Medical Malpractice Lawsuit Filed After Asthmatic Boy Dies

There is a lot of talk in the world of patient safety about the need for patients to have access to information about their medical providers. The idea is that if a doctor’s (or hospital’s) track record is accessible and easily understandable, then medical patients will make informed choices about where to receive care. Professionals that are less capable, the idea goes, would be forced to improve or risk going out of business.

Of course, this idea is incredibly important for patients, because beyond the system-wide effects, it means that they will receive care from a professional who they believe they can trust and whose track record they have investigated. After all, it seems obvious that patient who are going under anesthesia and otherwise placing their lives at the mercy of another, would want to know the quality of care that the individual.

However, a Chicago Tribune article from last month explains how there is still one problem related to this choice of doctor idea that has many patients upset--subbing of surgeons. It is not uncommon for patients to carefully vet their doctors so that they feel comfortable knowing who is performing the operation only to find that it was actually a different doctor that performed the operation.

In some cases this substitution is for legitimate, unavoidable reason. However, a few advocates are arguing that there are many other cases that are not legitimate and instead represent a “bait and switch.” In those cases, some claim, patients agree to a procedure thinking that a (usually high-profile) surgeon will perform the operation, even though the surgeon does not actually perform the operation. These are sometimes referred to as “ghost surgeries.”

Ghost Surgeries & The Law
As a legal matter, the substitution of a surgeon alone is unlikely to be a cause for malpractice. That is because actual negligence (and harm) must be shown. However, there are many instances where patients were victims of malpractice who discovered during investigations into the case that the surgeon they thought performed the operation did not actually do so.

For example, the Tribune article explains the case of one woman who filed a medical malpractice suit after having her heart damaged in a cardiac surgery. She thought that the procedure was being performed by a well-known triple board certified cardiologist. It wasn’t. Instead, the operation was actually performed by a far less experienced professional. She quipped on the situation, “I sought the rock star, and I got the opening act.”

A few recent lawsuits have been filed in the Chicago area involving claim of unauthorized doctor-swapping. However, it is difficult to be successful in those cases barring actual injury--trust violations notwithstanding. But that is not stopping many patients rights advocates from standing up and seeking accountability. One noted that the problem of ghost surgeries is “alarming and disconcerting on so many levels, not just from a medical or legal standpoint, but from a trust and ethical standpoint.”

The attorneys at our firm believe strongly that openness and honesty are a crucial part of the caregiving process. These sorts of swaps, when done improperly are incredibly disturbing.

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Medical Malpractice Victim Gets $75K in Lawsuit Against Podiatrist

It goes without saying that there is little room for error when it comes to medical products that are inserted inside a patient body. It is absolutely imperative that all mistakes be avoided when patients agree to have a device surgically installed in their body to treat a certain ailment. Unfortunately, there are many cases of various objects their either do not work as intended or actually cause more harm. In those cases, lawyers often fight hard to ensure the affected families have their legal rights respected.

Spinal Implants Problems
One of the more recent examples of this scenario involves BMP spinal implants--like one known as Infuse. Some “off label” uses of the device may actually cause injuries and harm to patients.

A recent PR web story discusses the situation.

According to the release, the U.S. Food and Drug Administration (FDA) recently issued a public health notification on certain uses of the BMP spinal implant--that includes Medtronic Infuse bone graft in cervical spinal fusions. The release notes that these uses may cause patients to suffer unacceptable injuries. The potential damage includes swelling of the tongue, mouth, neck, and throat. In addition, certain patients may have difficulty breathing, suffer nerve damage, experience compressions of neurological neck structures, and have difficulty swallowing. In the most extreme case, the problems may be fatal.

The main concern is that the Infuse BMP spinal implant was only approved by the FDA for spinal fusion surgeries using approach at the front of the body in the lumbar region of the spine. Even then, some reports have critiqued even this limited approval, noting that there may be problems with the Medtronic Infuse bone graft product that the FDA approved.

In addition, there are concerns about the marketing of the product for uses not approved by the FDA. This is a serious problem, and our attorneys know that many
legal battles involving medical devices and medications stem from potential marketing concerns--with manufacturers trying to “sell” the product by suggesting its use in ways not approved by the FDA.

In this case it appears that some suits have already been filed alleging off-label promotion of these BMP spinal implants. News reports on that suit suggest that as much as 85% of all sales of the product were for “off label” purposes. The suit suggested that sales representatives for Medtronic may have actually promoted the product for those off-label reasons. All of this eventually resulted in a settlement in the case amounting to $85 million.

However, that settlement does not end the legal matter. Many other individual patients may have been hurt as a result of these practices. Those individuals may be entitled to recovery for the losses they experienced as a result of these medical devices problems.

If you are in Chicago or throughout Illinois and believe that your may have been harmed by one of these spinal implants, be sure to get in touch with a lawyer working on these cases. The attorney can explain the situation and determine the best way to proceed in your individual case.

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Those pushing for laws that would take away rights of patients who suffer medical malpractice often paint the picture of a civil justice system run amok. If one believed all those claims, they might believe that plaintiffs who filed suit almost always won big settlements or massive verdicts every time.

Of course, this skewed portrait bears little resemblance to reality. The fact is that the civil justice system gives the benefit of the doubt to the defendants. The burden in these cases is on the patients (or their family) to prove that it was more likely than not that medical negligence occurred. This task is made even more complicated by the challenges that come with collecting enough evidence to show that mistakes were made. At the end of the day, it is easier to beat back any legal challenge (even ones with clear merit), than it is to navigate through the system all the way to trial and to earn of verdict.

Even if the case goes to trial, doctors and hospitals are often successful in convincing the jury that their is not a preponderance of evidence to prove that malpractice occurred.

Take, for example, a case discussed last week by The Dispatch. The med mal case stems from the death of patient in 2007. The wrongful death suit was filed by the man’s family in 2009, naming five defendants--two doctors, the county, and various medical facilities.

According to documents filed with the court, the patient entered the medical facility complaining of stomach pain that extended around his back. According to reports, he was given a CT scan. The goal was to rule out the presence of an “aortic aneurysm.” The aneurysm was not seen, but the doctors did see a gallstone. The man soon has his gallbladder removed.

Yet, the surgery was tough on the man, and he ended up dying about a week after the gallbladder removal surgery. The suit claimed that this rapid deterioration was caused by an infection that the man received. The plaintiff claims that he did not receive the antibiotics that he needed to deal with the problem. In opposition, the defense had an expert testify that the complications were not due to an infection by severe atherosclerosis disease. It was this rare disease, not an untreated infection that caused the death.

The jury was forced to weigh the testimony of both experts and other evidence to decide what they thought occurred. Last week the jury in the case returned a verdict in favor of the doctor. A few of the other defendants were voluntarily dismissed missed from the suit earlier, but one defendant remains. It is unclear what the plaintiffs plan to do following this verdict.

This case is a good demonstration of the effect of the presumption in favor of the defendant. For example, in this case, the jury may have decided that the evidence was 50-50, without any clear preponderance one way or another. Both experts may have been convincing. But, because the burden is on the plaintiff to prove negligence, when the jury is split 50-50, they are required to rule in favor of the defense. It doesn’t mean there was no negligence, it just means that the jury could not confirm it with enough outside material evidence.

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Transparency and accountability are buzzwords when it comes to improving patient safety and limiting medical malpractice. The idea is that if hospitals, clinics, doctors, nurses, and other medical professionals are held accountable for their mistakes--and if those past problems are made available to the public---then patients will make decisions based on the quality of services they are likely to receive. Essentially the economic laws of competition will apply to improve care.

But for all the talk about the need for more accountability and transparency in the caregiving process, we still have a long way to go, including here in Illinois.

“Operating in the Dark”
For example, ABC Local reported this week on one big loophole that may allow medical professionals with a history of negligent care to work in Illinois--patients rarely know that their professional may have made serious mistakes in the past. This may be true even under changes in our state--including the creation of an accountability website--that are supposed to increase patient knowledge about their caregivers.

The story reports on one doctor whose license was suspended in another state before he moved to Illinois and began treating patients here. Unfortunately, his history of bad care did not end once he came to the Chicago area. According to the story, in the 23 years he worked at a hospital in Park Ridge as a neurosurgeon, he was sued for medical malpractice at least 14 times.

Some of the doctor’s problems related to ordered care that wasn’t actually necessary For example, one family’s infant visited the doctor after falling off their porch. The injury from the fall healed on its own, but the doctor claimed that the child needed surgery for an unrelated growth problem. The family sought a second and third opinion, both of which claimed that the child did not need the surgery. Fortunately, the family was able to avoid an expensive, risky, and unnecessary operation. Other families were not so lucky. One report claims that the doctor improperly removed a disk in a patient’s back--leaving him paralyzed.

Following these cases the doctor moved from Illinois to Florida. Once there, however, things didn’t go well. He was hit with another six malpractice suits, including claims of unnecessarily drilling into a patient skull and operating on the wrong side of another patient’s head. Eventually he lost his license to practice in that state--and he moved back to Illinois.

Perhaps the most frightening part of all of this is that for months if you go on the Illinois website dedicated to providing information about doctors in the state, you would not find information about any of this. The lack of information on the site seemed to indicate a problem with the data on the site. That is because several of the most recent lawsuits were filed and settled within the last five years--which means that they should been listed for potential patients of the doctor to see.

Fortunately, the website was changed last week to indicate that the doctor was currently suspended. However, this situation raises red flags about the extent and accuracy of the information on the website. Much of the information is provided by doctors themselves, and the state likely lacks the resources to fully investigate the accuracy of all of the information on the site.

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One common question asked by those hurt by medical malpractice is: what damages can I receive? Attorneys usually explain that your potential economic recovery will depend upon many factors. However, many victims are not aware of the different types of recovery available to them and, in some situations, even their family members.

Please find a basic primer below to help explain potential damages in these civil malpractice cases...

General damages
Compensation for harm that you might reasonably expect from a wrongful or negligent act, such as physical and mental pain, and loss of enjoyment of life after an accident or injury. These damages cannot be proved with any clear specificity, but you may be eligible for them based on the fact that they normally follow from an accident or injury.

Lost wages
These damages represent the amount of money you would have earned, from the time of the injury to the date of settlement or judgment. Even if you are unemployed, you may be able to receive lost wages if you can prove what could have been earned during the same period.

You may also be able to recover lost future wages if you can prove that your ability to earn money in the future has been impaired or diminished by the injuries. Factors that help determine whether an award should be made include your age, health, life expectancy, occupation, talents, skill, experience, and training. Past earnings are a factor in determining the appropriate amount of compensation for lost earning capacity, but the claim really focuses on what might have been earned were it not for the accident or injury.

Permanent disability
These damages are best proved by medical testimony, and ordinarily a doctor must examine you. Some courts have held that permanent disability damages can include not only disabilities that are objectively determined, but also disabilities that you believe you suffer from.

Medical expenses
Bills and expenses for medical services such as doctors, hospital stays, emergency room treatment, ambulance fees, and nursing services can be recovered. You must show that the expenses are related to medical conditions resulting from your injury. The total amount of medical expenses is sometimes used as a rough guide to decide whether the overall award of damages is reasonable. It is important to note that the cost of a medical examination for purposes of litigation is not ordinarily recoverable as a medical expense.

Future medical expenses are also permitted if you can prove that you will need continued medical care as a result of your injury. Generally, you will be required to use a medical doctor’s testimony to approximate the cost of the medical care.

Pain and suffering
You may be entitled to an award for past and future physical pain in connection with an injury. To place a monetary value on pain and suffering, the jury will consider the nature of the injury, the certainty of future pain, its severity, and how long you are likely to be in pain.

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Thousands and thousands of plaintiffs appeal their cases to the U.S. Supreme Court every year. However, only a fraction of those cases will ever be heard by the Court. That is because the SCOTUS (Supreme Court of the United States) is selective about what cases they take. They have a limited schedule and only agree to hear cases that may have significant nationwide impact or settle legal issues on which there is disagreement in lower courts.

Recently the Court released a list of some of the cases it has agreed to take on this term (which begins in October). According to the Huffington Post, one of those cases involves claims of medical malpractice and battery by military doctors on the island of Guam. Interestingly, the case is making headlines because it was filed by the plaintiff himself, without a lawyer at all (known as “pro se”). It is rare for any appeal to be filed without an attorney and it is downright unheard of for those cases to be added to the SCOTUS schedule.

Medical Malpractice, Battery, & The MIlitary
According to the court documents, the petitioner (in this case, the plaintiff who is claiming malpractice) alleges that he was operated on in 2003 for cataract surgery while as the United States Naval Hospital in Guam. However, he claims that he withdrew his consent to the operation before the surgery. Notheless, the operation proceeded. Complications developed during the operation that require ongoing care.

The withdrawing of consent argument raises unique implications. That is because it raises the possibility that the medical team may be sued for battery. Battery is an “intentional tort,” unlike medical malpractice which is rooted in negligence. Battery is most often understood in the criminal context, but it is also a tort (a civil wrong). It is essentially any intentional harmful or offensive conduct to the body of another. That is why consent is required in all medical actions, because without consent medical professionals are committing battery if they hurt with in a procedure in a procedure in which you didn’t give permission.

In this particular case, the plaintiff’s medical malpractice suit was thrown out by the lower court, but the battery claim was retained. This was likely due to the issue of the “Feres doctrine” on which we’ve often discussed on this blog. The doctrine essentially provides immunity to medical doctor when working on active-duty personnel. The lower court apparently did not believe that the immunity applied to battery claims. The appeals court disagreed and threw out the battery charge as well.

The SCOTUS will likely settle the matter in this appeal, determining the extent of the immunity for military personnel. There remains continuing criticism of the Feres doctrine as a whole. The rule wreaks immense havoc on many military members and their families who are seriously hurt as a result of preventable medical mistakes.

In any event, lawyers, patients’ rights advocates, and others will undoubtedly be watching the case to see if the SCOTUS issues any ruling that might have impact on future medical malpractice cases. Even if the petitioner in the case is not successful, the specific language used in the opinion may have implications for future arguments, particularly for possible challenges to the scope of the military malpractice immunity.

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