Chicago Medical Malpractice Lawyer Blog

This is a useful Illinois case for a medical malpractice trial or any personal injury trial. The Illinois 3rd District Appellate Court reversed Judge James E. Garrison when at trial he admitted certain medical records into evidence but when plaintiff tried to publish the records to the jury during closing argument an objection was sustained and plaintiff was not allowed to proceed. The appellate court held that the records were business records and therefore not subject to the hearsay rule. The appellate court held that even though opinions were contained within the records the records had the same indicia of reliability as any other business record. Troyan v. Reyes No. 3-05-0132 October 5, 2005

Illinois and Chicago consumers of medical care have the right to know the medical malpractice records of the doctors and hospitals they visit but our state does not provide that information. If you are worried about medical malpractice and want to check up on your doctor before surgery then you need to go to New Jersey to access a database with the information most patients want. Mary Jo Layton writing for The Record states:

"The online state directory of physicians' malpractice and disciplinary histories was ranked the top in the nation by a national patient advocacy group on Tuesday. The state Board of Medical Examiners' Web site, which provides profiles of New Jersey's nearly 30,000 licensed physicians, was praised for its detailed information on medical malpractice payments, hospital disciplinary actions and conviction information, according to a survey by Public Citizen, a Washington, D.C., patient advocacy group."

In Chicago and throughout Illinois it is necessary to identify the correct corporate structure when bringing suit against a nursing home. A recent article in Trial Magazine is helpful on this subject:

After several major chains were hit with Medicare fraud investigations or were forced to file for bankruptcy protection, the business model began to change. Virtually all of these national chains have undergone extremely complex business transactions in which they were sold, merged, or parceled out into different entities—or otherwise drastically changed.

Here are some sources of information that will help identify the correct entity:

* state Medicaid cost reports/home office reports and federal Medicare contracts
* the secretary of state’s Web site and uniform business reports that include names of LLC members or corporate officers/directors
* state licensee files, including applications to the state, change-of-ownership documents, and other related documentation
* for a publicly traded corporation, Securities and Exchange Commission filings and reports, 10ks or annual reports, statements of corporate officers, and stock values
* the facility’s admission packet, brochures, pamphlets, and other promotional literature
* Google searches on the nursing home facility and the entities that own or manage it (Searching all the names that appear in the Medicaid cost reports is a great starting point.)
* copies of court files, especially depositions, from other cases involving the facility you are investigating, as well as other facilities owned or managed by the same entities
* conversations with other attorneys who have previously brought claims against the facility
* conversations with former employees of the facility (if your state allows)
* the local property appraiser’s office or Web site regarding the facility site

* copies of the master lease and any subleases
* copies of all management agreements, ancillary service contracts, and financial services agreements between the facility and all related entities
* all the facility’s budget information, including the annual budget, monthly reports, budget variance requests, per-patient-day (PPD) data, and the staffing budget
* the governing body documentation and information (According to 42 C.F.R. §483.75(d) (2006), all facilities must have a governing body to establish and implement policies and appoint the administrator.)
* copies of bank documentation, promissory notes, loan applications, guarantees, and any other documents that relate to the capital that was borrowed—to set up the facility and its sister facilities—as part of the entire operation’s management
* all e-mails between any and all staff in the facility and any outside entity or person

Now, it is difficult, if not impossible, to identify the entity that owns, operates, and controls any skilled nursing facility. A nursing home and its literature no longer bear the name of its owner and operator. The business model is focused on shielding the true corporate owners from liability or responsibility for their residents’ injuries.

"The president of the West Virginia Chamber of Commerce, a longtime advocate of tort reform, is suing his neighbors over an injury to his daughter. According to the lawsuit filed in Kanawha Circuit Court in August, Stephen Roberts and his wife, Anne, allege that their neighbors' son shot their teenage daughter in the left eye with a paintball gun. The couple is seeking unspecified compensatory damages from the boy's parents, David and Linda Wooddell, for medical bills and other related expenses. Caroline Wooddell, the owner of the South Hills house where David and Linda live, is also named in the suit, as is the juvenile who allegedly fired the paintball gun. Reached on Wednesday, Roberts said that the kind of reforms recommended by the Chamber of Commerce would have no effect on lawsuits like this one."

Andrew Clevenger, West Virginia Gazette, 10/19/06
http://wvgazette.com/section/News/Today/2006101818

Jaymes Song of the Associated Press reports that a brain damaged baby was awarded $16.5 million by a federal judge in Hawaii. Instead of oxygen the baby was given carbon dioxide until he was permanently brain damaged:

A minute into Izzy Peterson's life, a doctor administered what she believed to be oxygen to give the newborn's breathing a boost. But for 41 minutes, Izzy was accidentally given carbon dioxide, which slowly ate away at his life. Izzy, born healthy on Jan. 14, 2005, is now silent with severe brain damage. He breathes through a tube in his neck and eats through another connected to his stomach. The 1 year old requires around-the-clock nursing care at his home in San Antonio and is expected to die before he turns 30. Chief U.S. District Judge David Ezra on Thursday ruled the federal government must pay the boy's family $16.5 million in damages, which is believed to be the largest verdict for a single person in a personal injury case in Hawaii."

Jaymes Song, Associated Press, Dallas Morning News, 10/20/06
http://www.dallasnews.com/sharedcontent/APStories/stories/D8KS5V483.html

I think it is important to note that this is a judge making this award and not a jury. While the amount may seem high to some people, the fact is that it takes millions of dollars to care for a brain damaged child.

A recent study by the Committee on Quality Health Care in America has quantified the number of deaths related to medical malpractice:

• Preventable adverse events are a leading cause of death in the United States. When extrapolated to the over 33.6 million admissions to U.S. hospitals in 1997, the results of these two studies imply that at least 44,000 and perhaps as many as 98,000 Americans die in hospitals each year as a result of medical errors.3 Even when using the lower estimate, deaths in hospitals due to preventable adverse events exceed the number attributable to the 8th-leading cause of death.4 Deaths due to preventable adverse events exceed the deaths attributable to motor vehicle accidents (43,458), breast cancer (42,297) or AIDS (16,516).5

A new Illinois medical malpractice case settles once and for all a common problem that arises at trial. I have frequently obtained admissions from defendant's experts as to their personal practices in caring for patients similar to my clients.
When I have tried to cross examine the expert on these personal practices at trial the defense attorney objects that his expert's personal practices are not relevant to the case -- only the standard of care is relevant. Judges vary on how they rule on this objection.

Schmitz v. Binnette resolves this issue in favor of the right of the cross examiner to challenge the credibility of a witness that claims a test or procedure is not standard of care but he still does it as a matter of routine.

The court held: As noted, when questioned by the defense about the indigo carmine dye test, Dr. Mercer explained several dangers of the test, including that it is an invasive procedure, that it increases the risk of infection, that there is a risk of lacerating the urethra, and that some patients may have allergic reactions to the dye. Dr. Mercer also stated that the test fails to identify an obstruction in 30% to 50% of cases. Thus, Dr. Mercer did not merely testify that the indigo carmine dye test was not required by the standard of care, he implied that the test was unreasonably dangerous and ineffective. This testimony would have been readily impeached had plaintiff been allowed to question Dr. Mercer about his personal practice of performing the indigo carmine dye test "quite regularly, quite commonly." Accordingly, we find that the trial court erred in barring plaintiff from questioning Dr. Mercer about his personal practices.

For the foregoing reasons, we reverse and remand for a new trial.

As a practicing medical malpractice lawyer I purchase malpractice insurance every year. Although I have never had a claim made against me my premiums have more than tripled since 9/11. I have never heard anyone say there is a crisis in liability against medical malpractice lawyers, yet the premiums keep going up. What gives?

Insurance companies raise their premiums when the money they are making on their investments goes down in bad markets. Then they ramp up the PR machine to blame the higher premiums on run away juries and greedy lawyers. When they start doing better in the markets their premiums usually stabilize. They do not often lower premiums now that their customers are used to the higher rates.

This year the companies will be making record profits:Insurance companies are expecting record profits in 2006 after predictions of another year of devastating hurricanes have so far come to naught. Industry experts are estimating that profits may reach $60 billion, on a combination of higher premiums along the coasts, no major payouts for natural disasters and strong investment returns. The insurers also had high profits on other lines of coverage like auto insurance, workers compensation and general liability. The record profits expected this year come after a terrible 2005, when insurers paid out $61 billion for damage from Hurricane Katrina and other storms. Even so, the insurers ended up with a profit of $43 billion for the year because of exceptionally good results on investments, declining claims on policies on homes away from the coast and profits on other lines of coverage. But homeowners and businesses along the coasts, hit with much higher insurance costs after the barrage of hurricanes, probably will not get any relief as a result of the much quieter season, industry experts and consumer advocates said."

Joseph B. Treaster, New York Times, 10/14/06
http://www.nytimes.com/2006/10/14/business/14insure.html

We have handled numerous cases of sexual assault and abuse in nursing homes. Some of the cases involve attacks by other residents of the home and some involve attacks by employees. This type of injury is far more common than people realize and can be devastating to nursing home residents and their families.

Group B strep is a common bacteria which can complicate a pregnancy and severely injure a new born if not treated properly and in a timely fashion. Pregnant mothers should be screened for the bacteria prior to delivery and given antibiotics when necessary. Also bacteria is known to lead to premature labor in some cases. A recent settlement in California for just under $1 million arose out of the failure to react to a positive group B strep test.

I recently settled a case for $7.5 million where a mother was not given antibiotics in a timely fashion in the face of a clear group B strep infection.

A Maryland jury awarded $6.4 million to a family for the wrongful death of a wife and mother. After puncturing the her pulmonary artery with a catheter the victim was discharged and her artery ruptured after discharge. The artery should have been surgically repaired before discharge from the hospital.

The American Medical Association and many insurers have been trying to get the U.S. Congress to pass caps for years. The House passed caps on economic damages in 2005. The house bill limits pain and suffering awards for brain damaged infants, victims of wrongful death and others to $250,000. This bill has not passed out of the Senate and is not likely to do so before the next election.

There is also legislation proposed that would take medical malpractice cases out of the state courts and create a special health court whose members would supposedly have special expertise in medical issues. This sounds good on paper but it really depends on who gets to pick the experts. As the tobacco companies discovered many years ago -- for the right price --you can get experts to say anything. I am more comfortable having unbiased juries hear my cases.

The most common reason given for capping damages awarded by juries in medical malpractice cases is that juries award too much money and that there is a crisis in the jury system. A new study has found that the amount of punitive damages awarded has not increased over the last ten years and judges are more likely than lawyers to award punitive damages in personal injury cases. You can find it at 3 J. Empirical Leg. Stud. 263(2006)

The New York Times business page contained an interesting article on CEO pay. The article points out that there are plenty of people willing to work as CEO of a company for as well as and for much less than the excessive amounts routinely paid:

As Mr. Joss, the Stanford dean, sees it, there is more than one lesson to the story. Certainly, board members should realize that no employee is irreplaceable. But they should also remember that they have great leverage in pay negotiations, because being a chief executive — like being a big-league manager — is an enormously appealing job.

“Not only is it good economically, but it’s meaningful work: The executive is doing something he loves, and he is part of something,” Mr. Joss said. “You wonder how many C.E.O.’s would really leave these jobs.”

The Wall Street Journal reports that a New York State justice ordered former chairman of the New York Stock exchange Dick Grasso to repay millions of dollars in excessive compensation. This is a recurring theme in corporate America. A CEO appoints his friends to his board, as well as other CEO's with business ties to the company, then a friendly compensation committee is put together and sure enough they decide to pay the CEO millions of dollars.

Mr. Grasso's pay package of $187.5 million was considered to be a little on the high side for New York Attorney General Elliot Spitzer who pointed out that, after all, the New York Stock Exchange was a not for profit corporation. In fact, when asked some questions by the SEC, Mr. Grasso invoked the fifth amendment and refused to answer.

In ruling against Mr. Grasso Justice Charles E. Ramos repeatedly chastised Mr. Grasso, writing that, among other things, he had failed to adequately disclose the size of his $187.5 million pay package to the board. The justice also criticized the board for failing to do its homework.

Illinois Lieutenant Governor, Pat Quinn, recently pointed out that the annual pay package for the CEO of Exelon is somewhat excessive at $27 million. Mr. Quinn is wondering why a company that can afford to pay millions to its executives needs a rate hike.

If you are a medical malpractice lawyer, then next time someone tries to blame you for the high cost of medical care refer him to the compensation package of Dr. William McGuire, now the former CEO of UnitedHealth Group. Between 1994 and 2002 Dr. McGuire obtained stock option grants worth $1.78 BILLION. It seems that many of these grants were awarded at the lowest price the stock had seen in the quarter, raising the suspicion that the awards were backdated.

The way to reduce the cost of medical care is not to take away rights from the victims of medical malpractice, but to require corporate boards to police their CEO’s. Instead of acting as a rubber stamp corporate boards need to ask some tough questions like:

Dr. McGuire is it true that our company has awarded you $1.78 BILLION in stock options over the last eight years? Don’t you think that is a little much? There are 30 million kids in this country without health insurance and our lobbyists are pushing for a $250,000 cap on damages for brain damaged people – do you really need that much money for yourself?

Medical malpractice insurer Med Pro has recently announced that it will lower premiums for medical malpractice insurance in Illinois. The reason they are in position to do this is because of a new law making data available on medical malpractice insurance rates. The reason has nothing to do with an unconstitutional law capping damages for the most severely injured victims of medical malpractice.

Read the story here.

My thinking on overpaid CEO's has been profoundly influenced by a business man of integrity: Warren Buffett- the second richest man in the world according to Forbes magazine. Unlike many modern CEO's, Mr. Buffett made his money the old fashioned way: he earned it. Mr. Buffett's company Berkshire Hathaway pays him $100,000 per year. That is not enough to amass a fortune of $46 billion dollars - most of which he is giving to charity. He made his money by increasing the share value of his stock in Berkshire. Unlike many modern CEO's that take their money without regard to the fate of the stockholders, Mr. Buffett's wealth is directly linked to the share price of his stock. Here is what Mr. Buffett has to say about CEO pay starting on page 16 of his 2005 letter to shareholders: http://www.berkshirehathaway.com/letters/2005.html

You may wonder why a medical malpractice lawyer blog would have a section for the overpaid CEO of the month. It is because I am tired of the hypocrisy. I have been a medical malpractice lawyer for 23 years and not a day has gone by without some overpaid hypocritical CEO calling for my clients to have their damages capped at $250,000 or some other arbitrarily low amount that only serves to lock in sick profits for insurance companies and corporate America. I represent people that have lost arms and legs. I represent people that have been permanently brain damaged and rendered quadriplegic. I represent people whose mothers were abused and raped in nursing homes. So when people like Hank Greenberg call for caps on damages for my clients I say: hypocrisy. Why am I picking on Hank? Because before he was forced out of AIG, a medical malpractice insurance company, while being investigated by New York Attorney General Elliot Spitzer, Hank was able to amass a fortune of $2.8 billion dollars. While amassing that fortune Hank regularly called for, and had an army of lobbyists and PR people working for caps on damages for the most severely injured victims of medical malpractice.

Of course, Hank will say it is the medical malpractice lawyers that are greedy for those contigency fees they charge. But this is the thing about contingency fees: they transfer the risk of losing in court from a catastrophically injured client to that client's lawyer. Without contingency fees, only rich people like Hank can afford to take the risk of going to court. Let's face it, who else can afford to pay a lawyer $300 per hour and hundreds of thousands of dollars in litigation costs for a chance at winning at trial.

So when billionaire insurance executives start calling for caps on damages for my brain damaged, limbless and widowed clients, I say let's be fair about it. If we are going to cap grieving widows and quadriplegics let's cap pay for CEO's and lawyers. I will agree to cap my annual compensation if all current insurance CEO's agree to do the same. (This offer does not apply to Hank because he already has $2.8 billion dollars)