Chicago Medical Malpractice Lawyer Blog

As a Chicago Medical Malpractice lawyer I have handled hundreds of nursing home cases over 25 years. This story from Kentucky is a little too typical:

Loren Richards, an 84-year-old Kentucky farmer, spent his last days bedridden and in intense pain. A bowel impaction that went neglected and untreated for several days finally caused a fatal heart attack, after a morning spent screaming for a doctor who never came. His family didn't know the truth of his terrible demise at the Beverly Health and Rehabilitation nursing home in Frankfort until weeks after he'd been buried. Daughter Jan Richards was at a church service when a man in front of her, who drove the city's handicapped van and had transported local nursing home residents, turned around to offer his condolences. It was so sad, he said, that her father had to die 'suffering like that and nothing was done for him.' Suffering? Nothing done? Richards, her brother Phil and sister Wanda Delaplane, had been told by the nursing home staff that his passing had been perfunctory. He'd had a history of heart problems and a stroke, after all. They believed his care had been good throughout his five years at the home, although after recent staff cuts, the family had noticed he wasn't always as clean as they'd hoped."

Andrea Billups & Fran Lostys, Reader's Digest, December 2006
http://www.rd.com/content/openContent.do?contentId=31303

There is hope for Chicago and Illinois victims of medical malpractice. A new suit has been filed challenging the law recently enacted which put caps on the damages of the most severely injured victims of malpractice.

A lawsuit alleging a botched delivery left an infant with serious health problems could ignite a courtroom debate over whether Illinois' caps on medical malpractice claims are constitutional. The lawsuit--filed Monday against Dr. Roberto Levi-D'Ancona and Gottlieb Memorial Hospital in Melrose Park, where the girl was born last October--claims the state's caps on non-economic damages, such as pain and suffering, unconstitutionally limit what 13-month-old Abigaile LeBron and her family should receive. The family's lawyers are using the case to ask Cook County Circuit Court and eventually the Illinois Supreme Court to throw out the limits, which were signed into law last summer as part of an effort to reduce doctors' malpractice insurance costs. Both sides predict a lengthy legal fight over the caps."

Associated Press, Chicago Tribune, 11/21/06
http://www.chicagotribune.com/features/lifestyle/health/chi-0611210461nov21,1,382873.story?coll=chi-health-hed

According to a report by Bruce Japsen of the Chicago Tribune some of the countries biggest corporations are refusing to pay for medical malpractice and calling for hospitals to admit and pay for the mistakes:

If you go to a restaurant and get a bad meal, you probably won't have to pay for it. And lemon laws allow consumers who buy cars that never work right to get their money back. But in health care, there is no tradition of rebates -- even when a hospital surgical team leaves a sponge in a patient's chest cavity after open-heart surgery, or when a mix-up of a patient's medication causes a prolonged illness, employers and insurers say. Tired of paying for botched medical procedures and low-quality medical care, some of the nation's largest businesses Wednesday called on U.S. hospitals to agree to apologize and waive costs related to so-called 'never' events -- medical errors these employers say should never happen. Both the Leapfrog Group, a national coalition of large health-care purchasers such as Boeing, General Motors, General Electric and the Midwest Business Group on Health -- a Chicago-based business coalition representing more than 80 employers -- said hospitals should commit to new policy on 28 health-care "never events" as a way to make providers of medical care more accountable."

Bruce Japsen, Chicago Tribune, Monterey Herald, 11/17/06
http://www.montereyherald.com/mld/mcherald/business/16035739.htm

For a medical malpractice lawyer proving the source of an infection and that it was caused by negligence has always been a challenge. Christopher Lee of the Washington Post reports:

Infections acquired in hospitals, which take a heavy toll on patients, arise mainly from poor hygiene in hospital procedures, not from how sick patients were when they were admitted, according to three new studies. The studies, published yesterday in the American Journal of Medical Quality, provide new evidence for experts who argue that hospitals could prevent many of the growing number of infections that afflict patients nationwide, cost billions of dollars to treat and are responsible for thousands of deaths each year."

Christopher Lee, Washington Post, 11/21/06
http://www.washingtonpost.com/wp-dyn/content/article/2006/11/20/AR2006112001122.html

I guess the Illinois and US Supreme Court did not take my advice on how to solve the nation's health care crisis. This would take a court with the courage of the Warren court. I do not expect any decisions of that magnitude for the foreseeable future. Brian Brueggemann of the Belleville News-Democrat reports:

WASHINGTON - The U.S. Supreme Court on Monday sided with Philip Morris USA and refused to reconsider the Illinois Supreme Court's dismissal of a $10.1 billion verdict issued in Madison County over the company's "light" cigarettes.

The court issued its order without comment. The order puts an end to one of Madison County's best-known court cases.

Last year, the Illinois Supreme Court threw out the massive fraud judgment against Philip Morris, a unit of the Altria Group Inc., in a class-action lawsuit involving "light" cigarettes.

Crains Chicago Business reporter Mike Colias reports that medical malpractice premiums will soon be falling for Illinois doctors as result of competition being made possible by new legislation.

The Aurora attorney has formed the state's first new malpractice insurer since market leader ISMIE Mutual Insurance Co. came together in the 1970s. Targeting a sliver of ISMIE's 66% market share, Mr. Presbrey's startup shows state reforms are stoking competition for Illinois' dominant carrier that could lower doctors' rates.

Recent article in the New England Journal of Medicine discusses the new technology available to measure fetal oxygen saturation levels during labor. This technique would replace or supplement information from fetal monitoring. The study concludes that the new technology will not reduce cesarean rates. N Engl J Med 355;21 November 23, 2006

As a medical malpractice lawyer for plaintiffs I am often confronted with trial situations where the defendant's witnesses outnumber me. Mine are usually more persuasive but this new case gives another way to counter claims that the more witnesses the more convincing your case.

Steve Garmisa writes in the Chicago Daily Law Bulletin:

Michael and Lindy Lange, the plaintiffs in a personal-injury case, had three experts, while defendant Mary Freund had just one opinion witness.

Putting this in percentages — and making the number of experts a major theme of closing argument — a repeated refrain from the plaintiffs' counsel was that the Langes supposedly proved their case by a preponderance of the evidence, because they had 75 percent of the experts.

Having heard this misleading mantra over and over again — incredibly, apparently without objection — the trial judge punctured the argument with an unasked-for instruction on one against many witnesses.

At the close of arguments the judge told jurors: ''I am going to interject one thing right now. The number of witnesses on either side of the case is not dispositive of the issues or the facts as you find them.''

'In support of their contention, the Langes note that our Supreme Court's committee on jury instructions in civil cases has advised against such instructions: 'The committee recommends that no ''one witness against a number'' instruction be given.' Illinois Pattern Jury Instructions, Civil, No. 4.06.

''The committee, in its notes to the recommendation against giving such instructions, commented, 'The Illinois Supreme Court has held that it is for the jury to determine to what extent each witness is credible, and that it is error to give an instruction on that subject so worded that under the circumstances of the case the jury might readily infer the court believed the witnesses for one side to be more credible than the witnesses for the other side. Walsh v. Chicago Railways Co., 294 Ill. 586, 595 (1920).' IPI Civil (2000) No. 4.06, comment.

''Though we are mindful of the foregoing,'' McNulty explained, ''we do not agree with the Langes' assertion that the committee's recommendation and comments establish that the trial court's admonition in the instant case was reversible error.

''Pattern instructions are presumed to be accurate statements of Illinois law, and the jury is to be instructed using an approved pattern form if the trial court determines that it is applicable to the circumstances of the case. But pattern instructions are not themselves law. Our Supreme Court has held that they are not exempt from challenge.

More than 500,000 Americans die each year from smoking related illnesses. Instead of trying to solve the problem of the high cost of medical care by capping the damages of the most severely injured victims of medical malpractice this country needs to hold the tobacco companies accountable for years of misconduct and deceit. Companies that market an addictive product to children that they know causes cancer should not be allowed to defend by saying the consumer should have known better. The tobacco companies should have known better. The fact that they are clever marketers and successfully fooled people should not be a defense. To reduce the high cost of health care we need to reduce the demands on the health system. High demand leads to higher costs. We can reduce demand by reducing the number of cancer patients created every year by the tobacco companies. The only way to do that is to eliminate the assumption of the risk defense and let the plaintiffs lawyers sue the tobacco companies into oblivion. See Robert Peck's letter to the editor below:

Continue reading "Stop the rising cost of health care by holding big tobacco responsible - not capping damages for victims of medical malpractice" »

Medical malpractice taking place during spine surgery can have devastating consequences for the patient. Denise Gellene of the LA Times reports that a recent study in the journal Spine questions the use of hardware in lower back surgeries:

The use of implanted hardware in spinal fusion surgeries for lower back pain does not improve the results and carries a higher risk of complications, researchers reported today. The study published in the journal Spine was the latest to cast doubt on the increasingly common use of spinal screws and cages during surgeries in which vertebrae are fused to relieve pain. The findings "should add to our level of skepticism about benefits of the hardware and the procedure itself," said Dr. Richard A. Deyo, a professor of medicine at the University of Washington who was not involved in the study. Deyo has researched back pain treatments and his lab is partly supported with funds from a device maker."

Denise Gellene, LA Times, 11/1/06
http://www.latimes.com/features/health/la-sci-spine1nov01,1,7218374.
story?coll=la-headlines-health

Whether you have a nursing home case against an Illinois company or a national company you must be sure to identify and sue the proper entity. Defendant corporations are becoming much more adept at the corporate shell game.

"In the last five years, most of the nation's large nursing home chains have undergone major corporate restructuring. The goal: separating the chains' real property and assets from their operations to avoid financial liability for legal claims, including those alleging negligent care or abuse of residents. States like Arizona, California, Florida, and Texas-which have significant elderly populations-have been affected most by this trend, but homes in other states are following suit. Nursing home corporate structures used to be different. In the 1990s, most of the national nursing home chains operated in a similar manner. These for-profit chains included Beverly Enterprises, Mariner, Extendicare, HCR Manorcare, Kindred, Genesis, and LifeCare. Most of them divided up the country and each state into regions, and each region contained a handful of nursing homes."

Nathan P. Carter, TRIAL Magazine, November 2006
http://www.atla.org/publications/trial/0611/carter1.aspx

I have not heard of an expert being subject to discipline for testifying for a plaintiff in an Illinois medical malpractice case. But in and obvious attempt to make bringing malpractice cases to court more difficult the Texas Medical Board is reprimanding doctors that testify for plaintiffs. This should be no surprise coming from a state with one of the most anti-plaintiff biases in the country.

Texas physician is challenging a state medical board's attempt to discipline him for expert testimony on behalf of plaintiffs in medical malpractice cases. The physician, identified only as 'John Doe, M.D.' in court documents, is appealing a trial court's refusal last spring to issue an injunction blocking the Texas Medical Board from taking disciplinary action against him. A decision from the Texas Court of Appeals is expected early next year. Joe K. Crews (ATLA Member), an attorney in Austin, Texas who is representing the physician, said his client's reputation would be ruined if the medical board issued a public reprimand. In Crews' view, 'the intent of the medical board's action is to let doctors know if they are willing to testify that another physician in Texas has acted below the standard of care they're subject to disciplinary proceedings - up to and including not being able to practice medicine.'"

Nora Lockwood Tooher, Lawyers USA, 10/23/06 (Subscription Only)
http://www.lawyersusaonline.com/subscriber/archives.cfm?page=usa/06/A230614.htm

Next time a corporate CEO calls to cap damages for medical malpractice victims point out the absurd growth of CEO pay that has no relationship to corporate stock performance. How is it that only the people whose lives have been destroyed by negligence have to settle for caps?

NEW YORK (CNNMoney.com) -- The pay packages of U.S. chief executives are outpacing investor returns, suggesting that their compensation is not based on performance, according to a report published Monday.

The survey conducted and reported by the Financial Times, which looked at compensation of chief executives of companies in the S&P 500 index, revealed that the median compensation for a CEO rose 20 percent to $5 million during the past fiscal year.

That tops both the net profit and shareholder returns of those same companies, which rose 15 percent and 9 percent respectively, according to the paper.

"The reality is that this is a false market driven not by appreciation in the share price and earnings but by what other chief executives are getting," Charles Elson, director of the Weinberg Center for Corporate Governance at the University of Delaware, told the FT.

Experts told the paper that the survey, which looked at the salary, bonuses and options exercised by chief executives over the past two years, also indicates that their compensation packages are increasing at a much faster pace than the pay of the average worker.

Bringing a successful case for medical malpractice in Illinois for aquiring an infection in the hospital can be difficult because it can be hard to prove when and where the infection first occurred. Without this evidence it is difficult to prove negligence. I am not aware of an Illinois case that has been successful on this issue. Let me know if you have heard of one.

This West Virginia case appears to have overcome the problems with proximate cause.

Allison Riggs went to a West Virginia hospital for a routine knee operation and left with a severe infection that, over the course of the next four years, ate away at the interior of her knee until the metal hardware used to hold the knee together migrated up into her thigh. Although the jury awarded $10.1 million for her pain and suffering, the trial judge reduced the verdict to $1 million based on the state's statutory cap on non-economic damages. In spite of the reduction, plaintiff's attorney Paul Farrell Jr. (ATLA Member) said the verdict is significant because it is the first in West Virginia and one of the first in the country in which a hospital has been found liable for failing to maintain a clean environment."

Natalie White, Lawyers USA, 10/9/06 (Subscribers Only)
http://www.lawyersusaonline.com/subscriber/archives.cfm?page=usa/06/A090655.htm

If you want to avoid the chance of becoming a victim of medical malpractice then try to stay healthy. Take a look at this web page it will assess your risk of coming down with various diseases: www.yourdiseaserisk.com

The United States Chamber of Commerce violated tax laws by failing to report tens of millions of dollars spent to sway state and federal elections from 2000 through 2004, according to a nonprofit watchdog organization that filed a complaint yesterday with the Internal Revenue Service. The watchdog group, Public Citizen, cited internal records, corporate documents and media reports as the basis for its assertions about the chamber, one of Washington's most powerful trade and lobbying groups, and its affiliate, the Institute for Legal Reform. The complaint, in the form of a letter requesting a formal review of the two organizations by the I.R.S.'s criminal division, comes amid heightened scrutiny by regulators and government officials of tax abuses involving nonprofit organizations."

Lynnley Browning, New York Times, 11/1/06
http://www.nytimes.com/2006/11/01/washington/01tax.html

Three decades after a botched surgery changed her life, Janet Mitchell of Orange tells the story in the book 'Taking a Stand,' released this month. As a teenager in 1977, Mitchell had knee surgery to correct a bone defect that doctors thought would lead to arthritis. The surgeon, Dr. Glen A. Almquist, sliced tendons and ligaments behind Mitchell's right knee, leaving her unable to walk. She has endured 10 surgeries and years of rehabilitation. Then, 16 years after the first surgery, one of Mitchell's doctors confessed the truth: She was a victim of medical error. A jury in 1999 found Almquist guilty of concealment, fraud and malpractice. Health experts estimate that up to 100,000 Americans die each year as the result of preventable medical errors, and thousands more are injured."

Blythe Bernhard, Orlando Sentinel, 10/28/06
http://www.montereyherald.com/mld/montereyherald/living/health/15871771.htm

As a medical malpractice lawyer I am pleased to see that at least some people are trying to limit medical malpractice awards by improving safety rather than limiting the amount a victim of malpractice can be awarded by a jury. I learned in college economics that if you want sell less of something then charge more for it. If you want less medical malpractice do not make it less expensive to commit malpractice. By making it expensive to commit medical malpractice people find ways to prevent it.

Laura Landro of the Wall Street Journal reports such an initiative:

Despite years of efforts to fix the nation's error-ridden health-care system, leading safety experts say Americans aren't much safer than they were five years ago -- and too many conflicting safety programs may be part of the problem. Now, a coalition of health-care purchasers, quality groups and government agencies working with the National Quality Forum, the leading government advisory body on health-care quality measurement and standards, have agreed for the first time to endorse a single set of 30 'safe practices' that all hospitals should use to prevent death and injury to patients. The agreement comes after a two-year effort to harmonize the dizzying and often conflicting array of safety guidelines that have sprung up since 2000 in response to the landmark Institute of Medicine report, 'To Err Is Human,' which found that as many as 100,000 patients die each year from medical mistakes."

Laura Landro, Wall Street Journal, 11/1/06 (Subscription Only)
http://online.wsj.com/article/SB116234626074809703.html?mod=todays_us_personal_journal

As a medical malpractice lawyer I am pleased to see that at least some people are trying to limit medical malpractice awards by improving safety rather than limiting the amount a victim of malpractice can be awarded by a jury. I learned in college economics that if you want sell less of something then charge more for it. If you want less medical malpractice do not make it less expensive to commit malpractice. By making it expensive to commit medical malpractice people find ways to prevent it.

Laura Landro of the Wall Street Journal reports such an initiative:

Despite years of efforts to fix the nation's error-ridden health-care system, leading safety experts say Americans aren't much safer than they were five years ago -- and too many conflicting safety programs may be part of the problem. Now, a coalition of health-care purchasers, quality groups and government agencies working with the National Quality Forum, the leading government advisory body on health-care quality measurement and standards, have agreed for the first time to endorse a single set of 30 'safe practices' that all hospitals should use to prevent death and injury to patients. The agreement comes after a two-year effort to harmonize the dizzying and often conflicting array of safety guidelines that have sprung up since 2000 in response to the landmark Institute of Medicine report, 'To Err Is Human,' which found that as many as 100,000 patients die each year from medical mistakes."

Laura Landro, Wall Street Journal, 11/1/06 (Subscription Only)
http://online.wsj.com/article/SB116234626074809703.html?mod=todays_us_personal_journal