Chicago Medical Malpractice Lawyer Blog

“U.S. Food and Drug Administration approval of a drug label doesn't clear the manufacturer of claims that its warnings were inadequate, a judge ruled in a decision potentially affecting thousands of federal suits against Merck & Co. for the painkiller Vioxx. ‘The FDA's current view on the question of immunity for prescription drug manufacturers is entirely unpersuasive,’ U.S. District Judge Eldon Fallon wrote in the opinion handed down Tuesday. Had Fallon sided with Merck, the drug company also could have challenged claims brought by thousands of other plaintiffs who say it is to blame for heart attacks and other cardiovascular problems. That ‘would have been like wiping the whole board clean and wiping out all possible victories’ against Merck, said David Logan, dean of the Roger Williams University School of Law in Bristol, R.I. But the judge rejected Whitehouse Station, N.J.-based Merck's attempt to throw out lawsuits brought by two people who began taking Vioxx after April 2002, when the FDA approved a label warning that the drug might increase the chance of such problems.”

Janet McConnaughey, Associated Press 7/05/07
http://www.phillyburbs.com/pb-dyn/news/94-07032007-1372754.html

I am not aware of this being the law for medical malpractice cases in Illinois yet but based on this unanimous ruling in NY I think plaintiff's lawyers should ere on the side of full disclosure.

“Fairness dictates that all parties involved in a multi-defendant liability action must be notified when any one of them reaches a high-low agreement with the plaintiffs to cap their exposure in the event of an adverse award ruling, the New York Court of Appeals determined Wednesday. Garlock Sealing Technologies was ‘deprived of its right to a fair trial’ because it did not know its co-defendant in an asbestos exposure case, Niagara Insulations Inc., had reached a high-low agreement with the plaintiff, the court ruled unanimously in Matter of Eighth Judicial District Asbestos Litigation, 89. The court ordered a new trial for Garlock.”

Joel Stashenko, New York Law Journal, Law.com 6/28/07
http://www.law.com/jsp/article.jsp?id=1182935160762

I have been getting numerous requests for our brief in the Kunz v. Little Company of Mary appeal. Click below to see our entire brief on the issue of the court's failure to allow our expert to testify on the issue of reasonableness of medical bills.

Continue reading "Kunz v. Little Company of Mary : Plaintiff's appellate brief" »

Hurley McKenna & Mertz recently won a case in the Illinois First District Appellate Court. This was a medical malpractice case brought on behalf of an elderly woman that was given too much gentamicin. This antibiotic is known to cause kidney failure when given over long periods of time. Christopher T. Hurley and Mark R. McKenna tried the case to a jury in 2005 and were awarded $3.2 million for the loss of our client's kidney function. The appellate court upheld that verdict and further ruled that the trial judge should have allowed our expert to testify on the issue of past and future medical expenses. The case was reported in the Chicago Daily Law Bulletin by John Rooney on May 7, 2007. Click below to see the Law Bulletin story.

Continue reading "Hurley McKenna & Mertz wins medical malpractice decision in Illinois Appellate Court" »

Medical malpractice lawyers with experience trying cases are very familiar with the problem of jurors researching the case on the internet. But it may make sense for trial lawyers to research the jurors on the internet. Consider this:

"A New Hampshire case involving a juror who posted entries about court duty on his blog has raised the issue of juror blogging, which legal experts said may soon become a regular part of voir dire and jury instructions. The case involves Stephen Goupil, who was convicted in 2005 on five counts of sexual assault and one count of theft. New Hampshire v. Goupil, No. 2005-444. (N.H.). The juror foreman, Scott Vachon, made an entry in his blog in early 2005, four days before jury selection, in which he said he would have to 'listen to the local riff-raff try and convince me of their innocence,' according to court documents."

Vesna Jaksic, National Law Journal, Law.com 3/12/07
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1173101897897

The first district appellate court has reversed a Chicago jury verdict against a woman injured in a car accident. The jury asked questions about whether insurance had paid the plaintiff's medical bills and the court failed to answer the questions. The Illinois Appellate Court held that the jury should have been given IPI Civil No. 30.22 in answer to the questions about medical insurance. IPI 30.22 informs the jury that they are not to consider whether medical insurance paid bills in the case.

The Illinois Appellate Court has reversed a trial court ruling in a medical malpractice case involving apparent agency. Even though the patient and his wife signed consent forms stating that the doctors were not employees of the hospital the court held that summary judgment was not properly granted on the issue of apparent agency.

The plaintiff also argued that the evidence established a genuine issue of material fact that the defendant physicians were the apparent agents of the hospital. She argued that the consent form which she and the decedent signed was ''extremely confusing'' and ambiguous because it did not state clearly that the doctors who would be caring for the decedent were not hospital employees or agents and it could have been reasonably interpreted to mean that his personal physicians were employed by Northwest but the other unidentified physicians were not.

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.

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

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.