Articles Posted in Tips for Lawyers

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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.

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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.

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Yesterday we discussed how the U.S Supreme Court has begun determining which cases it will hear in the upcoming term. Most lawyers, students, advocates, scholars, and others closely follow these actions, because of the potential for these cases-or the rulings issued-to have consequences on many future cases and legal arguments.

There remains some confusion about the role of the U.S. Supreme Court. Of course, most understand the Court is the highest in the federal system-whatever rules it decides are applicable to every federal court in the country. But, the U.S. Supreme Court is not necessarily the final word on state issues. Sometimes state Supreme Courts issues rulings contrary to determinations by the U.S. Supreme Court, and, in certain cases, those state rulings are binding. It is a subtle and complex distinction. But, no matter what the case, what the U.S. Supreme Court decides on any given issue is almost always critically important. When they decide things, lawyers listen.

Med Mal Settlement Case

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All local Illinois injury attorneys (and some intrepid non-lawyers) might be interested to know that the latest set of Illinois civil pattern jury instructions are now available online. The complete set of instructions can be found HERE –at the Illinois Courts main website. The information can be obtained as downloadable .pdf in its entirely or each individual section can be obtained.

Of particularly value to Illinois medical malpractice attorneys, the professional negligence pattern instructions (Section 105.00) can be obtained HERE. As noted in the introduction to this particular section, the professional negligence instructions apply to doctors, dentist, attorneys, architects, and other professionals. Of course, contrary to other versions of these pattern instructions, the term “malpractice” no longer appears. Instead, it is has been replaced entirely by “professional negligence.”

The classic medical negligence instruction uses the familiar language of possessing the “knowledge, skill, and care ordinarily used by a reasonably careful [professional].” It then follows with the geographic component in the professional negligence standard of “practicing in the same or similar localities.” It continues with the statement first added in 2006 noting that it also includes “the doing of something that a reasonably careful [professional] would not do, under circumstances similar…” This last addition, retained form 2006, has led to much consternation and had provoked widespread criticism.

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The Chicago Daily Law Bulletin reported on Thursday on recent decision by a Cook County judge to deny transfer of a medical malpractice lawsuit to DuPage County where the conduct actually occurred. This was a unique decision in that most cases are resolved locally, in the county where the negligence occurs.

The malpractice case in question involves a patient who was injured in a suicide attempt, released and severely injured again in a second attempt. The suit was filed by the patient’s plenary guardian against the Hospital and doctors who treated the victim between the two suicide attempts.

The main issue was application of a legal doctrine know as forum non conveniens-where a court may chose to refuse jurisdiction in a matter because a more appropriate alternative location is available. In other words the medical defendants asked the Cook County judge not to hear the case because the DuPage court system was a superior location to resolve the matter when considering the public and private interests involved.

However, the judge in this case found that other considerations were stronger than the interest in deciding the controversy locally. For one thing, the size of the DuPage County itself makes it more difficult to find an impartial jury of 12 when the trial is conducted there. Both court dockets are overburdened, with about the same lag time between filing and conclusion, so there would be no adverse effect on the Cook County justice system. In addition, there is little unfairness or extra trial expense considering the two court locations are only 32 miles apart. The court found that there would be no effect on the ability to obtain testimonial evidence nor personal inconvenience for the parties. Therefore, the court rejected the forum non conveniens motion and allowed the matter to proceed.
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Northern Trust Company v. Burandt and Ambrust, LLP, No. 2-08-0193 (5-26-10) found that infection-causation defense that preexisting strep bacterial infection caused infant’s injuries at time of birth should have been admitted, as this defense meets the general-acceptance Frye standard. This case will impact Illinois medical malpractice law.

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Thornton v. Garcini, No. 107028 (4-22-10) affirmed a case stating that expert testimony is not required to prove negligent infliction of emotional distress. Based on personal experience alone, jury could reasonably find that circumstances caused emotional distress, when plaintiff’s deceased infant remained partially delivered for one hour ten minutes while plaintiff waited for defendant physician to arrive at hospital. This Illinois case will impact damages in medical malpractice law.

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Pavnica v. Veguilla (No. 3-09-0065) is a third district case which affirmed that a medical malpractice action filed against two ER physicians, claiming negligence in their choice of certain antibiotic to treat toe infection of diabetic patient; verdict for Defendants. Defendants’ experts refuted Plaintiff’s experts as to standard of care and causation, thus evidence did not so overwhelmingly favor Plaintiffs that jury verdict cannot stand. Court properly denied motion in limine which sought to exclude physicians’ testimony as to their military service. Even though military service as physician in Iraq occurred after his treatment of Plaintiff, it was experience relevant to his qualification as expert at trial; and reference to military service was limited, and nature and timing of service was described. This Illinois case will impact medical malpractice law.

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Hardy v. Codero, No. 3-09-0109 (4-8-10) affirmed a medical malpractice case against oncology nurse, as to administration of IV chemotherapy, proceeded to jury trial 10 months after filing, with verdict for Defendant. Defendant nurse’s testimony refuted Plaintiff’s expert’s assertion as to breach of standard of care, thus question of fact to be resolved by jury, rather than directed verdict or judgment n.o.v. Not error for court to have excluded testimony of occurrence witness nurse as to what she personally would have done. This Illinois case will affect medical malpractice law.

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Happel v. Walmart Stores, Inc., No. 07-2264 (4-19-10) found that the plaintiffs were entitled to new trial on damages in action alleging negligence and loss of society under circumstances where defendant-pharmacy knowingly filled prescription of medication to which it knew that plaintiff-wife was allergic since Dist. Ct. gave jury form that provided only single line for jury to make $465,000 verdict in favor of both plaintiffs. Verdict form should have contained separate lines to distinguish damage awards for plaintiff-husband’s loss of society claim, as well as wife’s negligence claim. Error was not harmless where: (1) Dist. Ct. was required to offset jury award with $150,000 settlement from wife’s primary physician: and (2) full off set was not appropriate since record did not indicate that jury assessed wife’s and husband’s claims at more than $75,000 each. This seventh circuit case will have an impact on medical malpractice cases.