Chicago Medical Malpractice Lawyer Blog

As a medical malpractice attorney in Chicago with experience in medial drug products liability, the recent ruling of the Australian court with regards to the drug Vioxx intrigues me.

An Australian court ruled Friday, “the once-popular painkiller Vioxx doubled the risk of heart attack and was unfit for consumption” (K. Gelineau, 3/5, AP). This ruling opens up claims for many other litigants in lawsuits against the U.S. company Merck & Co. Although the drug was removed from the global market in 2004 after research indicated the risk of stroke and heart attack, millions consumed the drug before it was taken off the market.

The Australian judge found “that Merck Sharpe & Dohme failed in its duty of care by not warning Peterson's doctor about the drug's potential cardiovascular risk, and by its sales representatives emphasizing the drug's safety.”

The Food and Drug Administration says, “an organ transplant drug from Bristol-Myers Squibb improves kidney function, but the agency has concerns about potentially fatal side effects.” (AP Washington, 2/25). Although Bristol has asked the FDA to approve its drug Belatacept for patients undergoing a kidney transplant, the FDA is concerned that the drug suppresses the body's immune system to avoid organ rejection.

In online documentation, the FDA noted that although more patients taking Belatacept had a higher two year survival rate than those taking other drugs, it also noticed higher rates of severe kidney rejection and neurological disease.

As the next step, the FDA wants its outside advisers to vote on the drug's safety and effectiveness, which is set to occur next week. As a medical malpractice lawyer in Chicago, I have seen many incidents of fatal side effects, and am hopeful the FDA will act quickly and decisively in determining the safety of Belatacept.

As a medial malpractice and products liability attorney, I am pleased with the FDA’s latest action targeting major drug companies. These companies may billions off patients, and all too often, fail to adequately disclose serious risks.

In a recent agreement with government regulators, “Amgen and Johnson & Johnson will do more to publicize the safety risks of their anemia drugs for cancer patients” (AP for FindLaw, 2/16). The plan developed in concert the Food and Drug Administration targets risk management and is the latest government action aimed at the drug makers. The plan applies to Amgen's Aranesp and Epogen and Johnson & Johnson's Procrit.

As part of the deal, “Amgen and J&J will be required to register each cancer doctor who prescribes their drugs and document that they have discussed the drugs' risks before prescribing them to patients. The three medicines within the plan are huge moneymakers for the respective companies because of their success and reputation regarding reducing the need for blood transfusions, however, recent studies have indicated the drugs can also cause tumor growth.

In the wake of the recent Illinois Supreme Court decision striking down medical malpractice damage caps as unconstitutional, the Illinois Trial Lawyer Association released a report dispelling the medical malpractice myths. (February 2010).

In 2005, the Illinois Legislature enacted arbitrary caps on medical malpractice non-economic damages. Under this regulatory scheme, victims of medical malpractice could only sue doctors for $500,000 and hospitals for $1 Million. Perhaps to someone who has been fortunate not to experienced such devastation, this money sounds like a lot, but arbitrary damage caps are unfair especially to victims of catastrophic mistakes. Although proponents of the damage caps argue that “skyrocketing” verdicts are driving doctors out of Illinois and raising healthcare costs for patients. However, empirical data speaks to an alternative source of the problem: insurance companies.

Court records show that since the 2005 law, both medical malpractice claims and verdicts have remained stable. Even insurance company’s regulatory filings “show that since 2000, both frequency and severity of malpractice claims and payouts have been stable, or even decreasing.” However, during that same period of time, insurance companies have increased insurance premiums paid by doctors, thus increasing healthcare costs for patients, and allowing themselves to enjoy large profits. Therefore, the root of the health care cost problem is insurance companies, not high medical malpractice verdicts. Empirical data supports this conclusion.

Moreover, the proper and most effective way to lessen medical malpractice litigation is to improve patient safety, not to impose arbitrary damage caps on those who have already been injured by medical negligence. Not only is this not fair, it’s not a way to solve the problem, but is only a way to prevent victims from obtaining just compensation.

As a trial lawyer in Chicagoland, I fully support this report. Medical malpractice damage caps are arbitrary and fundamental unfair, fortunately the Illinois Supreme Court reached the same conclusion.

As a personal injury attorney in Chicago, who has seen the effects of radiation gone bad, I fully support the FDA in their new initiative to rein in radiation overdoses.
In response to a problem that has becoming increasingly apparent for decades, “the Food and Drug Administration is working with doctors and medical manufacturers to reduce unnecessary radiation exposure from medical scans.” (2/9 Washington, AP).

The FDA says it will soon require manufacturers of CT scanners and other imaging machines to include safety controls that prevent patients from receiving excessive radiation doses. This initiative is part of a multifaceted scheme to reduce radiation-based injuries.

One study discovered that “the average American's total radiation exposure has nearly doubled since 1980, largely because of CT scans, according to recent studies.” Whereas medical radiation used to account for one-sixth of the population’s total exposure, it now accounts for more than half.

The Chicago Daily Law Bulletin posted a recent trial success of Hurley, McKenna, & Mertz regarding a major birth injury case (2/4). Attorneys Christopher T. Hurley and Mark R. McKenna were able to obtain a $9 million verdict for our client, “a disabled 20-year-old man whose mother claimed her son sustained severe brain damage and spastic quadriplegia as the result of an injury during his birth at Cook County Hospital.”

Amelia Saragosa visited the Cook County hospital’s emergency room with labor pains on January 21, 1990. Shortly thereafter, an amniotomy, which is an “intentional rupture of the fetal membranes,” was performed causing the umbilical cord to become trapped. The child, who was the plaintiff in this case, was deprived of blood flow and oxygen as a result, making an emergency Caesarean section a necessity. 41 minutes passed between the time when the need for an emergency C-section was apparent and the procedure was performed.

As trial lawyers, we have both experience and success with similar and equally as saddening medical malpractice cases. We have tried cases involving amniotomy, cord prolapse, brain injury, cerebral palsy, and other birth injuries.

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.