Chicago Medical Malpractice Lawyer Blog

As a medical malpractice lawyer, I am pleased with the recent Wisconsin Supreme Court decision. The standard of care should require a physician to disclose all the treatment and diagnostic options, especially before sending a patient home from the emergency room. Consider the following news story:

Todd Richmond reports about the recent Wisconsin Supreme Court unanimous decision that requires doctors to tell patients about all treatment and diagnosic options for their aliments (Chicago Tribune, 7/24). This ruling reaffirms previous lower court rulings that found “state law mandates doctors inform patients about all viable treatments and diagnosis as well as their benefits and risks.”

The ruling stems from a medical malpractice case involving a man who was rushed to the emergency room with stroke-like symptoms and told to take aspirin, return home, and visit a neurologist a few days later. In the interim, his wife found him on the floor suffering from a full-blown stroke. When rushed to the hospital, it was determined that one of his arteries was almost completely clogged. At the time of his initial emergency room visit, he was not told about any further testing alternatives or treatment options. Several doctors testified that he should have been informed of diagnostic options at that time. The recent ruling will hopefully lead to more favorable health outcomes in similar situations.

Mark Hirschbeck “had his dream job as a Major League Baseball umpire and reached a career high with the 2001 World Series, but he says what started as a routine hip replacement surgery cost him his career and has led to years of pain” (New Haven Register, Sullo 7/21). The pain began when his ceramic hip replacement shattered during recovery, even though his surgeon had told him he was getting the “Rolls Royce” of artificial hips.

Two additional ceramic hip replacements and a staph infection later left Mr. Hirschbeck unable to sit or stand for long periods of time. He obtained another physician who replaced the ceramic hip with a non-ceramic hip and he is now doing better.

Now, Mr. Hirschbeck has turned his attention towards Congress by advocating for the Medical Device Safety Act. In 2008, the U.S. Supreme Court ruled, “manufacturers of class III medical devices that have U.S. Food and Drug Administration approval, like Hirschbeck’s artificial hip, are immune from claims challenging these products’ safety or effectiveness.” The Medical Device Safety Act, if passed, “would allow injured consumers like Hirschbeck to bring product liability claims to a jury, and potentially hold medical device manufacturers accountable when their products cause injury or death.”

As a medical malpractice lawyer, I am disappointed that the same medical mistakes were made repeatedly. I support the Medical Device Safety Act because manufacturers of medical devices should be held liable for the injuries caused by their products. Furthermore, ceramic hip replacements should be subject to thorough evaluation if they both have a tendency to shatter and cause infection.

As a medical malpractice lawyer, I find the following story extremely disturbing. In my opinion, the California Nursing Board is clearly not doing its job protecting hospital patients from bad nurses. Especially since people generally have no choice in their nurse and no way of knowing the nurse’s past disciplinary history, the Nursing Board plays a critical role in protecting these people.

ProRepublica and the Los Angeles Times report (Ornstein, Weber, Moore, 7/11) about a California nurse who was not formally sanctioned for over two years after repeated incidents of physical violence towards patients. Finally, he was forced into anger management classes. After completing the court ordered anger class, and still “awaiting his first board hearing,” the nurse was able to practice with an unrestricted license. The Los Angeles Times and ProRepublica found “more than 60 nurses since 2002 who…were accused of committing serious misconduct or mistakes in at least three health facilities before the board took action.”

Other findings demonstrated that it took the Nursing Board, on average, more than three years to investigate and discipline delinquent nurses, leaving countless dangerous nurses fully licensed in the interim. Although Board leaders assert that timely disciplinary action has always been a problem and blame it partially on issues with other parts of the state bureaucracy, they give only vague recommendations for future improvement.

John Yates reports for the Chicago Tribune, “Michael Napientek of Clarendon Hills was in excruciating pain and needed back surgery. His wife has worked in the healthcare field for 30 years and thought she knew how to navigate the insurance bureaucracy.” Prior to the operation, his doctor obtained preauthorization for the surgery from his insurance company.

The operation was successful, and within a few weeks Mr. Napientek was feeling much better. However, in April, he and his wife “began receiving a series of letters from the insurance administrator with chilling news: Claims for the surgery has been denied, leaving them on the hook for the heart-stopping total of $148,000.” When they questioned the denial, they were told that preauthorization does not guarantee that the surgery will be covered. Mrs. Napientek appealed the decision three times, and was rejected every time. Each time, a different excuse was used ranging from accusing her husband of not exhausting “all conservative means of pain relief” to not providing “documentation to support the ‘appropriateness’ of the surgery.”

After many sleepless nights, several months of trying to figure out how to pay the enormous medical bill, and many phone calls to the insurance agency from Mrs. Napientek’s employer who funded the plan as well as from the “Problem Solver” of the Chicago Tribune to which Mrs. Napientek wrote to report this atrocity, the Napienteks recently received a letter saying the insurance company would pay for the surgery “based on additional information submitted and the opinion of an independent physician.” The Napienteks had already met their maximum out of pocket expenditure this year, so the insurance company will pay the entire $148,000.

As a Chicago medical malpractice lawyer I find it unacceptable that two working people with health insurance coverage could be driven into financial ruin because of health care costs, especially when the surgery was pre-approved. This story shows how vulnerable all Americans are to the whims and inordinate hassles of the insurance industry, and is yet another example that supports reform.

The Colorado Spring Gazette (7/2) reports, “Federal officials Thursday warned that about 5,700 surgery patients, including 1,000 at a Colorado Springs surgery center, are at risk of having been infected by an operating room technician with hepatitis C,” because the surgery tech admitted to swapping her dirty syringes filled with saline for syringes filled with Feltanyl, a narcotic that is 100 times stronger than morphine. She was a former heroine addict who admitted that she was virtually positive she had previously been exposed to Hepatitis C years before.

Hundreds of surgery patients got only saline and exposure to Hepatitis C instead of pain killers during post operative care, while the surgery tech injected herself with their painkillers both at home and in hospital bathrooms before surgery. She was discovered when another surgery tech reported her for being in an operating room to which she was not assigned. She was then tested for drugs and tested positive for Feltanyl.

The Colorado hospital released statements expressing their apologies and extreme sorrow for the infected patients and their families. The hospital is offering free testing to surgery patients, and has set up a phone help line for patients and their families. Unfortunately, exposure to the Hepatitis C virus, for which there is no vaccine, can lead to extremely severe consequences including but not limited to chronic liver disease and cirrhosis. Between 75 to 85 percent of those who contract Hepatitis C will develop chronic infection. Hepatitis C is responsible for between 8,000 and 10,000 deaths per year in the United States.

As a medical malpractice lawyer, it is my opinion that this horrible situation could have and should have been avoided. Even a simple check of her myspace page would have revealed that she has a “crazy fascination with needles” because she “just like[s] the way they feel.” Moreover, a recovering heroin addict is certainly not some one that should be permitted to handle strong narcotics, and such drugs should be carefully monitored within the hospital.

Rosanne M. Leipsig, a physician and professor of Medicine at Mount Sinai School of Medicine, published an article in the New York Times (7/1) commenting on the fact that “American medical schools require no training in geriatric medicine,” even though elderly patients make up a substantial component of all patients for which graduating doctors will care. She and some of her colleagues published a “Don’t kill Granny” checklist in the Journal of Academic Medicine, which laid out the basic requirements all graduating medical students should demonstrate in caring for elderly patients.

All doctors in training are “required to have clinical experiences in pediatrics and obstetrics, even though after they graduate most will never treat a child or deliver a baby. Yet there is no requirement for any clinical training in geriatrics, even though patients 65 and older account for 32 percent of the average doctor’s workload in surgical care, 43 percent in medical specialty care, and they make up 48 percent of all inpatient hospital days. Medicare…contributes more than $8 billion a year to support residency training, yet it does not require that part of that training focus on the unique health care needs of older adults.”

For Example, an experienced doctor needs to be aware that a 50-year-old body will respond differently than an 80-year-old body to both illness and medication. “Pneumonia in a 50-year-old causes fever, cough and difficulty breathing; an 80-year-old with the same illness may have none of these symptoms, but just seem ‘not herself’ - confused and unsteady, unable to get out of bed.” Not only are the symptoms different by age, but also the dosage of medication; a 50-year-old body can handle nearly twice as much medication as an 80-year-old body. Over prescribing medication to any patient, but especially one who is elderly, can cause severe kidney damage with long-term health consequences.

As a medical malpractice lawyer with experience in cases dealing with elderly care, I support a geriatric care requirement in medical schools. As the baby boomers get older, geriatric care is only going to become more important.

Hurley, McKenna & Mertz settles many medical malpractice cases each year. The following situation is upsetting, in my opinion, because Chicago area ophthalmologist, Dr. Nicholas Caro, is still practicing despite upwards of 50 medical malpractice suits and a year-old recommendation from the Illinois chief medical prosecutor that the Lasik surgeon have his license revoked (Chicago Tribune, Shelton 7/6). Depositions and documents complied for the cases against Dr. Caro consistently describe patients “repeatedly seeking treatment for painful or worrisome side effects” post Lasik surgery. Medical records show that some patients returned to Dr. Caro more than a dozen times after surgery. Several patients ended up with corneas damaged beyond repair, others were forced to consider cornea transplants if they wanted to see as well as they could prior to the botched surgery.

The formal complaint alleges that Caro mishandled Lasik surgeries and “failed to properly manage treatment of post-operative complications.” Yet, no disciplinary action has been taken and Caro continues to operate on people's eyes, highlighting ongoing concerns that the Illinois Department of Financial and Professional Regulation is not aggressive enough in pursuing bad doctors.

Although Dr. Caro blames the situation on an overly litigious society, according to the Ophthalmic Mutual Insurance Company, which insures about 30 percent of U.S. ophthalmologists, “about 75 percent of the specialists who practice at least 25 years have three or fewer lawsuits or malpractice claims in their career.” The Chicago Tribune further “checked the records of more than a dozen other ophthalmologists in the Chicago area and found that none had been sued for malpractice more than 12 times; most had far fewer lawsuits.” Therefore, it is my opinion that Dr. Caro is far above what can be considered an average number of malpractice complaints. As a medical malpractice lawyer, I am disappointed with the Department of Financial and Professional Regulation’s sluggish response to complaints against Dr. Caro. In my opinion, patients are subjected to undue risks each additional day Dr. Caro is permitted to practice.

The Washington Post reports (AP, 6/20), “staff members at a Brooklyn hospital falsified medical records and lied to authorities in an attempt to cover up the neglect of a patient who died on the waiting room floor.” Esmin Green, age 49, suffered for almost 24 hours in a psychiatric emergency room at the Kings County Hospital in Brooklyn, New York before collapsing from a blood clot.

According to witnesses and waiting room camera footage, Ms. Green was lying “on the floor for an hour, in full view of nurses, doctors, and security guards, before a nurse nudged her body with her foot, then checked her pulse. By then she was dead.” 6 hospital employees lost their jobs in connection with this incident, and some may face criminal charges.

Shortly after Ms. Green died, a senior nurse at the hospital made three falsified entries in the medical records “to make it appear as though she had been checking regularly on her patient.” Security camera footage confirmed that these entries were in fact false. A nurse’s aid separately falsified the record claiming “he had observed Ms. Green asleep during the hour when she was actually lying face down on the floor dying.” Both later admitted to authorities that the records were false.

As a medical malpractice lawyer in Chicago, I am deeply disturbed by the events leading up to the death of Esmin Green. I am hopeful that the legal proceedings in this case will ensure that such careless actions by hospital staff are never repeated.

As a personal injury lawyer, I am pleased to see that the FDA has been proactive in considering health hazards from generic drugs. Consider two recent instances where the FDA has both seized drugs for violating manufacturing standards and called for a panel of experts to scrutinize the link between acetaminophen and liver injury.

David Olmos reports for the Bloomberg News (6/26) "Generic drugs made by Caraco Pharmaceutical Laboratories Ltd. were seized by US authorities, who cited violations of manufacturing standards." The company had received a warning letter in October 2008 after inspections in May and June found deficiencies. Deborah Autor, director of the Office of Compliance at the FDA's Center for Drug Evaluation and Research, said inspectors who saw the facilities in May 2009 "found 'serious violations' of manufacturing standards and 'serious deficiencies' in quality control."

The FDA said drugs "and raw ingredients for pain, heart ailment, and psychiatric medications were confiscated today at three Caraco facilities in Michigan to prevent the Detroit-based company from distributing its products until the manufacturing deficiencies are corrected."

Jared Favole reports on other recent FDA activity for the Dow Jones Newswires (6/26) stating "painkillers such as Tylenol will go under a microscope... as federal regulators and medical experts debate how to limit liver injury in patients who take the medicines." At issue is acetaminophen, which is the most widely used drug in America. Approximately "100 people die annually from accidentally overdosing on acetaminophen,” and over 50,000 are temporarily hospitalized. The Food and Drug Administration says the drug is safe if taken at recommended levels, but “the drug's prevalence in a variety of pain relievers, fever reducers, and cough medicines means patients don't realize they are taking several drugs that contain the same ingredient, often leading to an overdose of acetaminophen."

According to Dow Jones, the FDA has been struggling with how best to control the issues surrounding acetaminophen since at least 1977, when an agency committee suggested labels for pain relievers contain a warning that they can damage a patient's liver. In April, the FDA mandated that over the counter drugs containing acetaminophen must have a label warning of liver injury. On Tuesday, the panel of experts voted to lower the maximum over the counter dosage and to ban drugs that combine narcotics and acetaminophen, including Vicodin and Percocet. Perhaps warning labels and other possible safety measures - including reducing recommended dosage levels, limiting the number of pills or liquid in each drug containing acetaminophen, and eliminating medicines that combine acetaminophen with other ingredients - could save many lives per year.