Chicago Medical Malpractice Lawyer Blog

The Chicago Tribune (1/26, Jackson and Marks) reports, “Authorities have investigated at least 86 cases of sexual violence against elderly and disabled residents of Chicago nursing homes since July 2007, but only one of those cases resulted in an arrest.” Furthermore, of Chicago’s nursing home facilities, government records show that sexual violence incidents were reported in more than a quarter of elder care facilities.

Further research suggests that although Illinois Law requires nursing homes to notify police immediately after receiving any reports of sexual violence, no reports were filed in at least 9 cases, and in other cases, reports were filed months later. Perhaps surprisingly, almost all of the 86 cases involved residents attacking other residents, and very few involved employees or visitors. A potential culprit is the fact that several Illinois nursing homes are relied upon to house younger psychiatric patients with known violent tendencies.

Most nursing homes in the Chicago area with a recorded incident had substandard staffing levels, a key indicator of patient safety. The most discouraging discovery regarding nursing home sexual violence is that fact that of 86 known incidents, only one perpetrator was arrested. Furthermore, there is every indication that more incidents of sexual violence occurred that went unrecorded.

Hurley, McKenna, & Mertz has dealt with several nursing home cases, some of which have involved sexual violence, others have involved abuse and neglect. As a Chicago attorney, I am very concerned that we will not get a handle on this serious issue until nursing homes are staffed more satisfactorily and law enforcement takes these cases more seriously, as a single arrest for 86 known cases is appalling.

Matthew Perrone reports, “A consumer advocacy group is asking government regulators to recall a drug they approved last year for a little-understood pain ailment, saying the pill can lead to dangerously high blood pressure” (AP for FindLaw, 1/20). The drug in question is Savella, which has been on the market for nearly a year after it was cleared by the FDA.

As a products liability lawyer with experience regarding medical drugs gone wrong, I join the consumer advocacy group in urging a recall of potentially dangerous drugs. If nothing else, more testing or the drug is certainly necessary. Interestingly, European regulators rejected Savella last summer due to “lack of effectiveness and side effects.” Many are wondering if the FDA should have reached the same conclusion.

Fibromyalgia is a disease that is “characterized by a wide range of pain-related symptoms, including muscle soreness, headache, fatigue and depression.” Recent studies of the drug have shown approximately 20 percent of patients on Savella experienced hypertension or high blood pressure, compared to 7 percent of those patients taking the placebo. Moreover, only 9 percent of study patients taking Savella experienced reduced pain, compared to 7 percent of patients taking the placebo. Clearly, there are some unanswered questions regarding this drug, which should at least prompt the FDA to reevaluate.

At Hurley, McKenna & Mertz we seek to represent victims who have been devastated by medical negligence. Unfortunately, those who are victims of medical negligence often do not know where to turn. It is always a good idea to seek a consultation from a lawyer about your medical malpractice case. At Hurley, McKenna & Mertz, we are always willing and ready to review your case. The following story exemplifies the sadness and devastation that accompanies medical malpractice.

Walt Bogdanich reports for the New York Times, “As Scott Jerome-Parks lay dying, he clung to this wish: that his fatal radiation overdose — which left him deaf, struggling to see, unable to swallow, burned, with his teeth falling out, with ulcers in his mouth and throat, nauseated, in severe pain and finally unable to breathe — be studied and talked about publicly so that others might not have to live his nightmare” (1/24). At merely 43 years of age, he died only several weeks after he summoned his family for a final Christmas.

His story is one that is, unfortunately, not unfamiliar; “A New York City hospital treating him for tongue cancer failed to detect a computer error that directed a linear accelerator to blast his brain stem and neck with errant beams of radiation. Not once, but on three consecutive days.” Mr. Jerome Parks and others experienced the “wonders and brutality: of radiation technology, giving them an advanced diagnosis and prognosis for treatment, but also a mistake that lead to unspeakable pain. Shortly after the incident, state health officials warned hospitals to use extreme caution with linear accelerators.

While Mr. Jerome-Parks hoped that his misfortune would allow medical providers and safety regulators to avoid similar accidents in the future. However, the intricacies of his case, and of other similar incidents, have been “shielded from the public view by the government, doctors, and the hospital.”

Although radiation technology has, without a doubt, saved countless lives, such powerful treatment must be executed with precision. The New York Times found that radiation does allow “doctors to more accurately attack tumors and reduce certain mistakes, its complexity has created new avenues for error.” Although Mr. Jermoe-Parks’s tale is devastating, it is a tale that must be told, and a tale that cannot be covered by for there are lessons that must be learned.

As a Chicago attorney dedicated to representing victims of medical negligence, I am disheartened by the following story. During a time when all consumers are hurting financially, it is fundamentally unfair for hospitals to be spending seemingly unlimited amounts of money on the newest technologies and pass on such costs to patients. Such spendthrift behavior is entirely inconsistent with the lobbying pleas of the healthcare industry in Washington asserting that, depending on how health care reform turns out, the industry “teeters on the brink of financial ruin” (Chicago Tribune, 12/22, Japsen).

Bruce Japsen reports for the Chicago Tribune, the “rhetoric [regarding financial stress] does not match the balance sheets of some of Chicago's largest hospital operators. Many are spending unprecedented amounts on new buildings and seeing some of their best improvements in cash since the dot-com boom of a decade ago. Critics say large hospital operators that are amassing cash are doing so at the expense of patients, charging higher prices when that money could be used to lower costs or subsidize hospitals in a hole.”

The hospitals maintain that they need to invest in the latest medical technology to attract top medical care providers and protect themselves from the uncertain economic conditions and future of healthcare. While hospitals are clearly not the only source of the healthcare problem as they are facing more unpaying and uninsured patients as a result of the economic downturn, they are also not entirely blameless. Unnecessary spending on the latest and newest technology when perfectly functionally but slightly older technology is available is part of the wasteful behavior that contributes to rising health care costs. American citizens cannot afford to pay for continuously rising costs of healthcare and therefore, a balance must be reached between providing necessary medical care, investing in long term machinery, and cutting waste of time and resources including taking a long and hard look at the insurance system.

Consumer complaints of a moldy smell as well as stomach pain and nausea lead to a recent voluntary recall of Tylenol Arthritis Caplets manufactured by Johnson and Johnson. The New Jersey based company is “now recalling all product lots of the Arthritis Pain Caplet 100 count bottles with the red EZ-Open Cap,” an expansion from the earlier, more limited recall of only five product lots (12/29, AP for FindLaw).

Thus far, reported side effects have been “temporary and non-serious.” Furthermore, Johnson and Johnson has determined that the moldy odor is a result of the “break down of a chemical used to treat wooden pallets that transport and store packaging materials.”

Although no serious conditions have resulted from this recall, as a Chicago medical malpractice lawyer, I am very pleased to see Johnson and Johnson’s swift and voluntary actions recalling a defective product.

The LA Times reports, “Firms that supply temporary nurses to the nation's hospitals are taking perilous shortcuts in their screening and supervision, sometimes putting seriously ill patients in the hands of incompetent or impaired caregivers” (12/6, Weber and Ornstein).

The problem is worsened by nursing shortages and lacksidasical regulation, but the temporary firms “have become havens for nurses who hopscotch from place to place to avoid the consequences of their misconduct. An investigation by the nonprofit newsroom ProPublica and the Los Angeles Times found dozens of instances in which staffing agencies skimped on background checks or ignored warnings from hospitals about sub-par nurses on their payrolls. Some hired nurses sight unseen, without even conducting an interview.”

Nurses with documented poor history who are rehired by another unsuspecting organization subject ill people to the perils of their recurring bad habits, including charting drug administration to patients, but stealing the pain killers for personal use.

As a Chicago attorney who has experience with similar medical negligence cases, I am saddened by this phenomenon. Although some places are more diligent than others about checking their nurse’s backgrounds prior to hiring them, those who don’t subject innocent patients to careless, irresponsible, and malicious behavior, which gives the entire industry a bad reputation.

This week, the Illinois Supreme Court will release a decision regarding the constitutionality of the state’s medical malpractice law (12/17, AP for FindLaw).
Of particular concern is the Court’s ruling on whether damage awards in medical mistakes may be capped. In 2005, “the General Assembly adopted caps…as a way to keep doctors from fleeing the state because of rising insurance rates” limiting “what victims could collect for non-economic damages such as pain and suffering to $500,000 against doctors and $1 million against hospitals”.

In 2007, a Cook County judge ruled against damage caps holding that they interfered with juries' power to award appropriate damage awards for medical errors. The Supreme Court has twice before thrown out medical malpractice caps.

As a medical malpractice attorney in Chicagoland, I hope the Supreme Court again throws out damage caps. The jury should be able to award case specific damages for pain and suffering as damage caps are highly unfair to those who are catastrophically injured.

Recent news of a new medical device has doctors and researchers excited of a possible ground breaking discovery. Doctors say that a “new type of heart pump greatly improves survival of people with severe heart failure,” and could become the first one of these devices to be widely used as a permanent treatment (AP for FindLaw, 11/17). The HeartMate II device is implanted into a patient’s heart to help the heart pump adequately.

Although more research is certainly necessary, in one study, the new device increased the number of patients who survived at least two years four-fold compared to an older pump. The older pump is used now just to keep patients ticking while they await a transplant. However, as with many new medical technologies, there is a substantial cost issue as the device itself runs up an $80,000 bill with an additional $45,000 necessary for the implanting surgery and hospital stay.

Although the new device has potential to enhance many lives, as a Chicago lawyer with medical malpractice and products liability experience, I hope adequate safety testing is completed before the device is used consistently. One very promising study certainly is exciting, but other confirming studies are necessary before a new device is used widely.

Adding to the partisan turmoil surrounding the recent health care bill that passed the House of Representatives, is the republican introduced “so-called Loser pays legislation that would require patients in medical malpractice cases to pay their opponents costs should their cases not succeed” (Joanne Doroshow, 11/5).

First and foremost, “the underlying presumption is without basis and grossly unfair,” because a loss in the courtroom does not equate to a frivolous lawsuit. If that was always the case, then the appeals process would be wasteful and unnecessary. Furthermore, “it’s no secret that medical personnel are not always forthcoming with information about their screw-ups, and filing lawsuits can be the only way injured parties can get to the bottom of what happened. A ‘loss’ says far more about the difficulty patients have getting straight answers in the first place than it does about any so-called ‘frivolous’ act.”

Second, the bill imposes an arbitration requirement, such that injured parties must first proceed through arbitration, a process that is notoriously unjust. Then, if the plaintiff wishes to go onto trial after arbitration, they are free to do so, if they are “willing to risk losing the case and having to pay a large hospital bill…[and] hourly legal bills…on top of the economic devastation they may be suffering due to an inability to work, and other related costs.” The vast majority of plaintiffs cannot afford this risk.

At the end of the day, this “loser pays” rule is patently unfair to the hundreds of thousands of people who are devastated by medical malpractice annually. Even a patient with a strong case would risk losing on a technicality and being economically destroyed by having to pay all the legal costs in addition to the damages they have already suffered – not to mention the additional challenges victims will face trying to find legal representation. As a medical negligence lawyer, I find the unjust outcomes that would surely result from a “loser pays” rule to be intolerable.

As a Chicago attorney who has seen too many lives destroyed by careless medical care, I am discouraged by the following story. Doctors who are essentially allowed to work for drug companies are often affected by a misalignment of incentives with their patients. This practice leads to substandard medical care and should not be allowed.

The AAJ news brief (11/11) included a Chicago Tribune (11/11, Jewett, Roe) story surrounding “reports that AstraZeneca paid Chicago psychiatrist Dr. Michael Reinstein $490,000 over a decade to travel the nation promoting its best-selling antipsychotic drug, Seroquel. In return, Reinstein provided the company a vast customer base: thousands of mentally ill residents in Chicago-area nursing homes.” During this same period of time, Dr. Reinstein was further accused of overmedicating patients; one Florida lawsuit alleging that Dr. Reinstein told patients that Seroquel would help them lose weight, “a claim which runs counter to established research” that links antipsychotic drugs with substantial weight gain.

Clearly, the practice of stealthily compensating physicians for promoting drugs can, and often does, cause Doctors to prescribe medications with their own financial interest in mind. At a minimum, doctors should be required to disclose such economic interest to their patients.

Hurley, McKenna & Mertz of Chicago handles cases against doctors and nursing homes for abuse, neglect, and wrongful deaths that occur in these facilities. The following story discusses one of the most serious recurring problems plaguing nursing home care – the fact that even when facilities are cited, doctors remain fully licensed and undisciplined.

An unfortunate example of such a situation involves Delores Fleming. Her family tried to care for her at home, but eventually Alzheimer’s Disease made it impossible for them to adequately care for her. Reluctantly, they placed her in a nursing home near Decatur, Illinois. Upon entrance, she was deemed “moderately impaired” when she scored a 23 out of 30 on a mental test. However, after a series of crying spells and several instances of wandering away, “her doctor prescribed two antipsychotic drugs, even though she was not psychotic…[and] doubled the dosage of one medication no fewer than four times, putting her above the recommended limit” (Sam Roe, Chicago Tribune, 10/28). Ultimately, a neurologist was called in after her family complained when she scored a zero on a subsequent mental test, and the nursing home was cited for misusing psychotic drugs.

However, as is often the case, the prescribing physician received no citation. Therefore, "There's no downside for the physicians" who order inappropriate psychotropics, said Robert Hedges, a former regulator with the Illinois Department of Public Health who now co-owns five nursing facilities. As a lawyer who specializes in personal injury and medical malpractice cases, and has extensive experience in this area of litigation, I find this story extremely disappointing. It seems unwise and counter productive for citations to be directed only at facilities and not physicians for physicians wrongful prescribing of psychotic medications.

Hurley, McKenna & Mertz of Chicago represents many clients that have been harmed by substandard medical care, focusing primarily in nursing home, obstetrics and gynecology, and wrongful death cases. As Chicago attorneys with experience with nursing home neglect and abuses cases, we find the issue of substandard medical care to be a critically important societal issue.

Medical studies from prior decades are now resurfacing in the important health care debate. Jack Wennberg began an ambitious study in the 1970’s collecting and comparing data on medical procedures all over the state of Main (NPR, 10/8). Initially, he was taken aback by the striking differences in medical care across the state. After the populations had been compared for health statistics and controlled for age, the differences were staggering. For example, in two neighboring communities, 75% of children in one community had their tonsils removed, while just 20% in the other community had their tonsils removed.

Eventually, they convinced many doctors in all practice areas to convene and discuss the differences on regular intervals. Their findings indicated many contributing factors. First, doctors were affected by the fear of being sued. Second, local medical culture had a profound influence. People in small town Vermont assumed that a child with a 102 fever would go to the hospital, as had been the practice for years. Doctors continued to act consistently with the local medical culture even though they knew that children were put at higher risk of illness by being sent to the hospital and being in the proximity of other sick patients. Third, the fee for service payment system inevitably induced doctors to perform more procedures. If you structure payment on quantity, then quality of service may suffer as the expense of trying to see as many possible patients. Further complications of insurance system hassles also induce doctors to perform more procedures in hopes of collecting more from insurance companies. Furthermore, in counties with extremely high incidence of procedures, the outcomes were undeniably poorer, which is likely a reflection of the fact that the patients were not optimum surgery candidates.

Many important factors affecting doctor behavior addressed in previous studies should be revisited and addressed in policy initiatives.