Chicago Medical Malpractice Lawyer Blog

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.