Illinois Medical Malpractice Blog

Setting the Record Straight On Illinois Medical Malpractice Trial Outcomes

Thu, 17 May 2012 14:28:46 -0600

When trying to sell tort reform proposals to legislators and the public at large, those advocating for big interests frequently try to present the image of an Illinois medical malpractice crisis. This fabricated crisis apparently involves a wave of frivolous medical malpractice lawsuits being filed with doctors forced to defend against unfair claims. But it doesn’t end there. Arguments are also made that juries frequently award hug verdicts to plaintiffs all the time, even when they are not deserving.

All of this—claim tort reform proponents—necessitates quick legislative action to take away rights from juries and limit the ability of patients to filed suit against their medical providers.

Each Illinois medical malpractice lawyer at our firm knows those claims are incredibly misleading.

A recent article at MedPage sets the record straight.

The story shows how that the civil justice system slants in favor of defendants, it remains incredibly difficult for plaintiffs to succeed at trial. A large reason for this is the myriad of options available to defendants to both win at trial and get a case thrown out before trial.

The story points to some statistics from a recent issues of the Archives of Internal Medicine. The data was culled from an analysis of 10,000 closed medical malpractice cases. The data suggests that only 4.5% of medical malpractice cases ever go to trial. Of that group, the jury returned a verdict in favor of the defendant-doctor nearly 80% of the time. How could that be? Part of the reason is that the burden of proof is on the plaintiff. That means that if a juror is evenly split between finding that the medical professional acted negligently or not, the law requires that they find no liability. This is a significant hurdle that all plaintiff must clear to be successful at trial. That means that the cases where a jury does return a verdict for the plaintiff are actually the exception more than the rule.

So what about the over 95% of cases that do not go to trial? Well over half of them are dismissed by the court before reaching trial. This is a testament to the various procedural rules that are thrown in front of plaintiffs even before they are allowed to go to trial. Contrary to the assumption of much of the public—filing a lawsuit does not automatically mean that a plaintiff has a right to make it to trial. They first must prove that there is sufficient evidence available such that a jury could reasonably find liability. Finding that evidence is often a challenge. That is not because the medical professional acted reasonably but because collecting the right paperwork, testimony, and other necessary information can easily be fought, particularly when defendants are not cooperative in providing information about the care.

Our Illinois medical malpractice attorneys appreciate then that these stats mean that this means that only about a fourth of all filed cases even end in a settlement. In other words, there are an endless array of hurdles placed in front of plaintiff before receiving redress and accountability. The last thing needed are more arbitrary tort reform rules that add more roadblocks for plaintiffs which drag out the justice process in each individual case longer.

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Celebrities Line Up to Share Importance of Medical Patient Safety Improvements

Tue, 15 May 2012 18:04:36 -0600

Each Illinois medical malpractice lawyer at our firm understands the continued need for improvements in medical safety. The most common refrain to hammer home this point is the reminder that estimates suggest that the total number of patients killed because of preventable medical errors is equivalent to two jumbo jets filled with passengers crashing everyday and killing everyone on board. If that actually occurred, you can image that the country would be up in arms about the need for increased safety protocols for the airline industry. Much less attention is focused on improving medical safety standards. Unfortunately, the Illinois medical malpractice attorneys at our firm know that instead most attention is focused on actually limited the rights of the patients hurt by the errors—ultimately providing even less accountability

Many advocates are working to change this situation and share information about the critical importance of improving safety standards at all medical institutions. For example, a recent AMED News story explained how a range of celebrity activists are trying to focus public attention on these issues. Many of the public figures were spurred in their efforts by the fact that they have been personally affected medical mistakes.

For example, film actor Dennis Quaid had the horrific experience of nearly losing his children as a result of a medication error. In 2007 the star’s wife gave birth to twins. However, when the babies were only 12 days old they developed an infection. The family rushed them to the emergency room. While there the children were mistakenly given 1,000 times the needed dose of the drug heparin. The babies were nearly killed. Investigations into the incident revealed that the mistake was rooted in the fact that packaging on the drug for 10,000 unit-strength and 10-unit strength are very similar. In addition, the hospital in question was found to fail to separate properly the two types of doses, creating a situation where the error was far more likely to occur.

This sort of infant drug overdose is unfortunately not uncommon. For example, only slightly more than a year before the Quaid children were almost killed the same mistakes occurred in Indiana. In that case six infants were given the 10,000-unit dose of heparin. Three of those babies died as a result.

All community members—not just medical malpractice lawyers—should work hard to eliminate these preventable tragedies.

One important way to help is to create a patient safety board based on the one in the aviation industry. The investigations following airline accidents are intense, and the reports of the accident “often lead to direct changes in federal regulations, airline policies and in the cockpit.” Medical errors receive far less review, meaning that they do not spur changes and similar mistakes are made again and again.

Famous pilot Capt. Chesley B. “Sully” Sullenberger—the pilot who landed a disabled plan on the Hudson River in 2009—has come out in support of the benefits of the aviation safety board. He noted that safety improvements are vital to improving safety long-term in any field, medicine should be no exception.

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Medical Malpractice Lawyer Explaining Dangers of “Early Offer” Systems

Mon, 14 May 2012 10:03:14 -0600

Fairness is the bedrock of the civil justice system. Our Chicago medical malpractice lawyers know that in law school all future attorneys—including those who end up working for plaintiffs as well as defendants—are drilled in what this fairness principle actually means. It is not merely lip service to the idea that both sides are able to make arguments. The basic idea of fairness is all-encompassing and guides how attorneys act inside and outside the courtroom.

Of course attorneys are zealous advocates for their clients. But there are limits to that advocacy. An attorney must not take that zealous advocacy to the point of trying to trick the other party. That is why, for example, attorneys for one party in a suit do not contact or discuss material with the other party without that party’s attorney present. The purpose of the civil justice system is to reach truth and provide fair redress. That mission is not accomplished when coercive or underhanded schemes are used.

All Illinois medical malpractice attorneys must keep this in mind to ensure our profession remains an ethical one. The public consciousness has unfortunately shifted in some ways, and lawyers are often viewed as dishonest and manipulative. While we cannot defend all attorneys, our team maintains a steadfast commitment to fairness and honesty at all times. We do not attempt to take advantage of any party—even defendants. The goal is helping those hurt by misconduct receive the support they need to fully recover from all of their losses while holding negligent parties accountable.

We are committed to this fairness. That is why it is particularly shocking to see certain states attempt to enact legislation that runs completely counter to that spirit of openness and fairness. For example, the “early offer” legislative proposal currently being considered in New Hampshire would do nothing more than basically try to “trick” patients into signing away fundamental legal rights. No one who cares about an impartial justice system should support these incredibly misguided efforts.

Recently, the Executive Director of the Center for Justice and Democracy, Joanne Doroshow, testified in front of a state legislative committee on the measure. She attempted to clarify the harmful effects of these bills.

She explained how this particular “early offer” legislation seek to get patients to sign into a special “system”—usually before they have any chance to talk with a legal professional or even know the full extent of their own injuries. Once in the system, the patient has to abide by very different rules when trying to get compensation for the harm caused as a result of medical malpractice. Unsurprisingly, those alternative rules are slanted severely against the patient—essentially allowing the hospital to get away with providing far less compensation to the patient than otherwise.

Our medical malpractice lawyers stand steadfastly against all legislative proposals that seek to trick patients out of their basic legal rights. We are confident that most residents, when fully apprised of the effects of this sort of legislation, would also reject these dangerous changes. It remains important to keep abreast of these potential tort reform efforts, because similar proposals might be introduced in our state at any time.

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Setting the Record Straight on Physician Supply

Sun, 13 May 2012 06:00:57 -0600

One of the most common arguments used by those attacking medical malpractice lawsuits and seeking to promote tort reform is the argument that doctors will leave a state if the changes are not made. Similarly, proponents of these laws also suggest that when these laws are passed more doctors will flock to the states that limit the rights of patients to recover losses after they’ve been hurt by medical negligence.

Each Illinois medical malpractice lawyer at our firm knows that the poster child state for this argument is usually Texas. The Governor of Texas, Rick Perry, pointed to his state as an example of this. It was often claimed that physicians came to the state in droves specifically because certain laws were passed to take away legal rights.

Those claims sound nice as a debate talking point, but are they accurate?

Several law professors—including several from Illinois—recently investigated the situation to get real answers to the questions. A summary of the study published this April can be found here at the Center for Justice and Democracy website. The work is incredibly well-thought out, carefully covering all possible avenues to get at the most well-documented answers yet to whether the claims about tort reform and physician supply are true.

The overall takeaway: Tort reform does not increase the supply of physicians in a state.

In Texas, the state passed a range of “tort reform” measures that severely limited the rights of those hurt by medical malpractice in the state. When compared to similar pieces of legislation in other states, the laws were particularly sweeping. The study notes that a key argument in passage of the bill was that the state “was hemorrhaging physicians and that restrictions on lawsuits would stop the bleeding.” Expectedly, following the passage of the bill proponents of the law claimed that it ‘miraculously’ worked just as intended.

Our Chicago medical malpractice lawyers were interested to read that the study revealed that there were two big problems with that argument. First, the state was not actually losing physicians prior to the passage of the bill. In fact, the state was gaining doctors steadily from 1990 until the law’s passage in 2003. In other words, there was never a real problem in this regard to solve to begin with.

But did the law at least lead to an increase in the number of physicians in the state? This is a bit trickier to pinpoint, because, after all, the state was always adding doctors. Parsing out the effect of the law requires close analysis of the physician levels as well as consideration of all other possible variable which may have affected any change besides the tort reform measures.

Amazingly the study found that, completely contrary to arguments made by reformers, “the rate of increase in Texas DPC physicians per capita was lower after reform.” It is crucial that this reality be shared with more individuals who make arguments about tort reform laws. This is an uphill battle though, because proponents continue to make false and misleading claims.

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Large Verdict Returned in Birth Injury Case – The Exception, Not the Norm

Sat, 12 May 2012 06:00:27 -0600

The Mercury published a helpful article last week on the large medical malpractice case that made headlines after a jury returned a large verdict after determining that negligence led to a permanent, debilitating brain injury during birth.

The case was filed by a woman who went to the hospital a few weeks before her due date. She was showing signs of placental abruption—when the placenta leaves the uterine wall—which often necessitates an emergency delivery of the child to avoid any long-term harm. Before making any decision, the woman’s doctor performed an ultrasound. Yet, for a variety of reasons—including the fact that the equipment may have been defective—the doctor did not find a fetal heartbeat. As a result he told the woman that he child had died.

But the child was not dead; the ultrasound was just not performed correctly.

When an ultrasound technician actually came in later to review the results, he caught the mistake. It was only then, an hour and twenty minutes later, that the baby was quickly taken from the womb. However, the delay had serious consequences for the child—he suffered a permanent brain injury. A medical malpractice lawsuit was eventually filed. The case ended with the jury finding for the plaintiff and awarding them $78.5 million.

Our Illinois medical malpractice lawyers understand the importance of the family in this case, like all cases, having the right to have a jury of their peers decide the total damages of a case after hearing all of the evidence. Unfortunately, we also know that cases like this are frequently taken out of context, with the verdict amount plucked out, and used to “prove” how certain verdicts are wrong. It is vital that we fight back against those distortions.

For one thing, verdicts of this size are exceedingly rare. As we have mentioned many times before, there are thousands and thousands of cases all the time with very few ending in settlements are verdicts anywhere near this amount. Using an infintismal fraction of decisions as “proof” of the need for legal changes is not apt.

While one might disagree with certain verdicts, the entire point of the law is to provide the best avenue we have available to reach decisions on issues that are inherently filled with disagreement. If everyone already agreed on who was at fault and what the damages were, then there would be no need for a justice system at all. We’d just do what everyone already knew. But that is not the world we live in. Instead, the justice system specifically exists to adjudicate those disputes. In other words, we should be surprised if people weren’t in disagreement with particular outcomes. That disagreement is in no way a reason to change the system itself.

On top of that, changing rules for everyone in the system simply because of a few outlier verdicts is never a good idea. Our Chicago medical malpractice lawyers know that this is nothing more than an attempt by those to have much to gain to slide through legal changes that hurt permanently take away basic rights.

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The Myth of Medical Malpractice Causing Defensive Medicine

Fri, 11 May 2012 06:00:58 -0600

Most have likely heard talk about the damaging consequences of “defensive medicine.” The idea is that because of fear of being sued, doctors are ordering tests and other procedures unnecessarily. As a result, the costs for healthcare are far higher than they should be. Those making this claim argue that the solution is to limit the rights of individuals to file medical malpractice lawsuits and receive certain compensation. Of course, each individual victim of medical malpractice has nothing to do whatsoever with decision made by doctors across the country, but these proponents argue that there is no other alternative than to curtail their access to the civil justice system if we want to lower healthcare costs.

While all of this makes a clear compelling argument for insurance companies and big hospital interests seeking to enact tort reform laws, it comes with one problem: it is not exactly accurate. Each Chicago medical malpractice lawyer at our firm knows that no matter what one decides about the veracity of claims about the prevalence of defensive medicine, the solution to the problem does not center on taking away basic legal rights from community members.

An article for the Americans for Insurance Reform recently discussed various studies that have examines that issue. They all essentially show one thing pretty clearly: reducing medical malpractice lawsuits will do little to cut healthcare costs. Our Illinois medical malpractice attorneys hope that more people will actually take the time to look into the research behind the claims before making choices about which policies to support or not to support. Please find a brief summary of a few major studies below:

Annenberg Center study: This 2005 effort challenged the overall claims by so many insurance companies that tort reform would save healthcare costs in a project entitled “Insurance Industry Ad Makes Fishy Claim About Lawyers.” The underlying point was that the claims of savings are dramatically overblown when actually looking at likely expenditures and costs.

General Accountability Office: The GAO conducted a research project to try to specifically figure out how widespread the problem of defensive medicine was. It involved working with physicians to get an idea of the actual work that they do because of fear of malpractice. Essentially, the effort found that there was no conclusive evidence that defensive medicine was a serious problem and, even then, no evidence suggested that it was connected to malpractice lawsuits. The final recommendation was that managed care options were necessary because, no matter the cause, doctors should not be incentivized financially to provide care that is not necessary.

Congressional Budget Office: The CBO effort from a few years ago looked very closely at all the possible effects of limits on medical malpractice lawsuits and healthcare costs. They found, unsurprisingly, that there was little connection. Even accounting for all malpractice claims, it could account, at best, for 2% of healthcare costs. Enacting tort reform laws, would change only a fraction of that already small 2%. In other words, limiting patient’s access to justice system would have so little effect on reducing costs as to be negligible.

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Have Insurance Companies Lost Their Way: Who is Really Protected?

Thu, 10 May 2012 07:12:46 -0600

One might suspect that a Chicago medical malpractice lawyer would spend most of their education time learning the ins and out of the civil justice system while focus specifically on understanding the more common forms of medical malpractice—delving into the medical side of the issues. Of course understanding the procedural aspects of our legal system and close familiarity with certain medical issues is essential in the field. However, a third factor exists in virtually all Illinois medical malpractice cases—and most civil law cases generally—the complexities of insurance.

The truth is that insurance is at the heart of these issues, because the payment or non-payment of certain claims are often made by those at insurance companies. These companies are intimately involved in these Illinois medical malpractice legal proceedings from the very beginning. Far from being an entity that stands to the side and then provides payment per terms of its agreement after the fact, these entities delve into the details of the case, going well beyond their assumed role of general safety-net for those in certain situations.

Considering the role played by insurance companies in these affairs, our Illinois medical malpractice attorneys were interested to read a new article at The Atlantic. The story discussed the history of insurance generally, pointing out how today’s modern-day counterparts may be able to take a lesson or two from older traditions.

One company, Liberty Mutual, was used as an example. The company’s origins can be traced back over one hundred years—when factory workers were in desperate need of protection in case they were struck with the not-unlikely tragedy of a work injury. At that time, only about one in fifteen injured workers receive fair compensation from their employer. That is why, via hard-fought political wins, the organized labor movement was able to overhaul to worker’s compensation system state-by-state to provide support for those harms faced by ordinary workers. As part of that effort the Massachusetts Employers Insurance Association was formed—today that company is Liberty Mutual.

In other words, the company began as an entity to help ordinary workers. Has the primary focus on helping those in need remained over the centuries? Not quite.

The article explains that now, instead of being a mutual effort of ordinary workers helping one another, the company is beholden to a small group of executives to make decisions—not surprisingly—in their own best interests. This is almost undeniable. After all, how on earth is it possible to justify the fact that its current CEO received almost $200 million in pay over the last four years alone? The company clearly has different goals than those upon which it was founded.

It is about time companies took a harder look at the past and the underlying spirit of insurance.

The modern version of insurance is rooted in England in the early 18th century. It was then that Daniel Defoe endorsed the idea of the modern day insurance, calling it “a Number of People entring into a Mutual Compact to Help one another, in case any Disaster of Distress fall upon them.”

Insurance was supposed to be able helping those involved in times of need—not trying to avoid payouts as much as possible, making policymakers jump through hoops, and striving to increased profits for the executives at the top.

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Doctors May Fail to Properly Manage Pain in Cancer Patients

Wed, 09 May 2012 18:17:31 -0600

Our Chicago medical malpractice attorneys have often shared information on one particular invidious form of medical malpractice—the failure to diagnose cancer in a timely fashion. As we’ve explained, time is of the essence when it comes to long-term outcomes following a cancer diagnosis. Medical professionals cannot work miracles, and often they simply cannot discover the condition soon enough to avoid any long term problems. However, in far more cases than acceptable, medical teams do not act appropriately, failing to catch cancer when reasonable doctors would have caught it. This often includes failure to conduct basic tests or mistakes in the reading of those tests. When this occurs local residents should consult with legal professionals to better understand how the law might apply in their case.

Most discussions of medical malpractice and cancer center on those diagnostic issues.

However, there are other issues in cancer treatment which may implicate medical neglect—improper pain control during cancer treatments. An article from American Medical Experts touched on these concerns. Referred to as “chronic opioid therapy,” this pain treatment, according to medical experts, “requires clinical skills and knowledge in both the principles of opioid prescribing and on the assessment and management of risks associated with opioid abuse, addiction, and diversion.” There are also various guidelines from expert panels that provide basic recommendation on how to handle these issues.

In other words, managing these pain programs for cancer patients is not necessarily some roughshod process whereby doctors randomly dole out prescription whenever they think appropriate to a patient. There is a right way and a wrong way to do it—one that accounts for the very powerful addictive forces of the drugs and understanding of the possibility for abuse and addiction.

Each Illinois medical malpractice lawyer at our firm was interested to read that pain treatment in this context does not revolve entirely around powerful narcotics. The story notes, for example, that non-steroidal anti-inflammatory drugs like ibuprofen can be an important part of these therapies, because they can reduce inflammation connected to tumors that are pressing on tissues. Similarly, there are apparently various procedures called nerve blocks which are often helpful ways to relieved localized pain without resorting to opioids.

Of course cancer pain treatment undeniably often requires significant narcotics usage. However, there are very different ways to handle the overall narcotic usage depending on how the cancer progresses. At times it is necessary to switch to different narcotics to reduce tolerance helping to allow a lower dose. Other tools can be used to lower dosages while keeping the same medication.

All of this is simply another reminder that medical professionals should act reasonably in regard to all of these issues, including managing cancer pain treatment issues. Like all patients on these drugs, there is a risk of addiction. That risk isn’t necessarily high when properly managed, but for those who develop unnecessary dependencies the ramifications can be significant. Failure to properly control pain may involve medical negligence, because it could indicate a breach of basic standards of care. If you suspect you might have been harmed in this way, be sure to reach out to a legal professional to share your story.

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The Merits of the Civil Justice System

Tue, 08 May 2012 08:27:05 -0600

Last week the State-Journal Register published a letter which re-emphasizes the role that the civil courts play and how they work to protect citizens across our state. Written by the President of the Illinois Trial Lawyers Association, Jerry Latherow, the article explains how those hurt by negligence, recklessness, and intentional misconduct depend on the basic system each and every day. Each Illinois medical malpractice lawyer at our firm is proud to help local residents navigate that civil justice system to ensure there is accountability and redress after errors or accidents.

The article explains how many corporations, health-care providers, and insurance companies are motivated by profits instead of considerations of safety or service. As a result, those entities often try to skirt all responsibility unless forced to do otherwise. Unfortunately, state and federal regulatory agencies lack the oversight resources and mechanisms to ensure the consequences of these entities are held in check. That is where the civil justice system comes in—leveling the playing field for all community members.

Our Chicago medical malpractice attorneys know that those very entities held in check by the system often work to undermine is efficacy. As a result, despite the critical role played by the system, many community members do not understand exactly what the civil justice system provides or the consequences of weakening that system. It is important that none of us take the benefits of the system for granted.

Under the civil law, all individual Americans have the right to hold those who harm them responsible for that harm. This right exists whether the other party is a friend, neighbor, stranger, or even large corporation. This accountability tool ensures that those hurt can recover as much as possible as a result of the harm. In addition, it acts as an important deterrent—particular for big businesses—to enact safety protocols that prevent harm before they occur.

This seems like a basic principle and system that all should respect. But the biggest corporations, like big tobacco, pharmaceutical companies, big oil, and insurance companies, try to undermine the system. The civil justice system is often demonized by these companies and their front groups. Local community members have likely heard this message, seemingly blaming the civil justice system for virtually all problems in society at one point or another.

Our Illinois medical malpractice attorneys firmly believe that it is imperative to stand up to the misleading efforts to weaken the civil justice system. As Latherow explains, “Without it, these powerful corporations would have free reign to make and break the rules.”

At the end of the day, the truth is there is no “problem” with the civil justice system in Illinois that needs any fixing. All proposed “fixes” are nothing more than attempts to change the system to slant more heavily toward big interests and away from regular community members. Literally no credible evidence exists which connects the civil justice system to the health of our economy or healthcare system as a whole. Those who suggest otherwise are misleading the public and working to make the legal system a bit less fair and our community a bit less safe.

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Poor Healthcare in Chicago?

Mon, 07 May 2012 09:29:12 -0600

Our Chicago medical malpractice attorneys were concerned this week to read a summary of a new study which revealed troubling information about the state of our local healthcare systems. The latest edition of the Illinois Trial Lawyers Association’s “Justice for All” newsletter summarized a Crain’s Chicago Business story on a new report which suggested that Chicagoland ranks quite poorly on a number of healthcare variables: including overall care and costs.

The report, from the Commonwealth Fund found that the city ranked 215th out of the 306 markets nationwide examined. The city was cited for problems in a wide range of areas. The basic rankings were compiled using a range of criteria. In general, our medical malpractice lawyers understand that the information is probably best when used to understand the national average (or median) of some variable and comparing that with the Chicago scores on the variables.

For example, the national median is that 17.7% of Medicare patients require readmittance to the hospital within a month of their previous discharge. How does Chicago score? Worse than the national average. In Chicago, nearly one in four Medicare patients have to go back to the hospital within a month—far higher than in most other parts of the country. Similarly, one common condition, pneumonia, is treated according to proper recommended care nearly 97% of the time in most locations across the country. In the Chicago healthcare market that proper care is only received 92% of the time.

The local market performed poorly in various other areas. Take pain prevention. The nationwide median when all 306 markets were taken into account was that 63.2% of patients had their pain properly controlled. Chicago did not perform that well. Hospitals in our area generally properly controlled patient pain in only 58% of cases. Clearly there is room for improvement.

Surgical problems also exist. The study involved examination of proper surgical preventative care that lessened the risk of complications. The national median was that only 3.8% of surgical patients do not receive proper care to prevent complications. Chicago’s rates are more than 225% higher, at 8%. These are troubling statistics that indicate local patients are simply at significantly more risk suffering from preventable harm.

The problem is not only on quality of care measures. For example, the national average for health insurance premiums is $3,314. In Chicago the rate is 12% higher at around $3,700. What is the cause of the pricing discrepancy? The poor care itself may result in increased costs being passed on to patients. In other words, actually tackling Chicago medical malpractice or other medical quality problems will not only have the obvious improvement in care but will also save money. It is yet another reminder of the wide-ranging toll that these issues have on our overall healthcare system.

Summarizing the overall results of the Commonwealth Fund’s study, one co-author of the report stated that the results “are all symptomatic of a care system that has access barriers to timely and effective primary care, care in the community and it under-investing in public health.”

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Sun, 06 May 2012 06:00:29 -0600

So often ignored in the debate about “tort reform” laws are the collateral consequences of shifting the responsibility for medical malpractice away from those who actually made the error. Our Chicago medical malpractice attorneys frequently explain the scope of losses sustained by those hurt by preventable medical errors. The financial, physical, mental, and social toll is far higher than many community members expect. It should not be a controversial opinion that the ones who caused the loss (and their insurers) provide redress in those situations.

Yet, tort reform laws essentially seek to shield those responsible parties for their conduct.

In states where many of these laws have passed, what are the consequences? The costs of these errors are shifted to taxpayers and the victims themselves.

For example, a recent article at NM Politics explored how arbitrary damage caps ignore the reality that medical mistakes occur far more frequently than they should and that those who make the errors should pay for them. In that state, laws limit the amount of money that a patient can recover for their losses. This is true no matter what the situation, how damaging the loss, or what a jury decides is reasonable after hearing all of the specific details of a case.

As we have repeatedly noted, these laws are a big win for medical interests and insurance companies, because it essentially limits what they will have to pay not matter how terrible or costly the error.

On the other hand this is most certainly not a big win for individual patients or taxpayers as a whole, because it usually means that the costs of the errors are shifted to them.

This is perhaps best illustrated when looking at cases of medical errors made during childbirth. The consequences of these mistakes are truly staggering, because they alter a life permanently just at the moment when the life is beginning. Each target="_blank"Chicago medical malpractice lawyer at our firm has worked with families whose children have suffered any number of injuries as the result of unreasonable conduct by medical professionals, from cerebral palsy to brachial plexus injuries.

Many of these injuries are permanently debilitating. Children born with severe cerebral palsy, for example, usually need a lifetime of around-the-clock care, special equipment, and more. The costs of this lifetime of care are obviously large. So who should pay for it? As the author of this commentary noted, in most states with arbitrary damage limits, the caps apply to future medical expenses and future care costs.

Functionally that means that the costs are shifted to the taxpayer, because the vast majority of families have no way of paying the extra costs on their own. The family involved is usually forced to spend virtually every last dime that they have before qualifying for Medicaid. The program then pays for the bare bones care that the child needs. At a time when Medicaid cuts are being made across the county—including Illinois—it seems entirely illogical to pass laws that push even more care into that system instead of forcing those who made the error and are capable if paying for it to do so.

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“Apology” Programs Following Medical Errors

Sat, 05 May 2012 06:00:39 -0600

A few healthcare facilities have recently considered a new approach to instances of medical errors. Instead of clamming up and trying to hide any suggestion of medical malpractice, some practitioners are encouraged to admit the error and an offer an apology. Considering that many families are forced to engage in prolonged legal battles just to get at the truth about what happened in their case, our Chicago medical malpractice attorneys appreciate that this openness is a step forward.

However, these programs are not without their complications. A recent WBUR story on the apology programs included a discussion with a law professor who discussed a few issues to be concerned about with these programs.

The primary issue is whether some of the finer components of these plans are simply another way to confuse patients, manipulating them into taking actions against their interest. As the professor explained, after these apologies are given the patient will likely be contacted by a “risk manager” from the insurance company or hospital who will try to get the patient to talk about their injury. Under some plans the conversation with the risk manager would include admitting the error and usually an offer of compensation. Under those circumstances our Illinois medical malpractice attorneys understand that patients are likely to assume that the offer is a fair one that provides proper redress, taking into account the losses they sustained as a result of the mistake.

But that is unlikely to be the case.

That is not to say that this program doesn’t work or that the outcome will always be against the patient’s interests and wishes. It is simply important to be aware that these sorts of possibilities exist.

At the end of the day, there is still no replacement for a patient and their family at least getting tailored advice about what their other options are in any given case.

Apologies are still a good thing in these situations. There is no reason why doctors and patients need to put up barriers after medical malpractice is made that prevent honest and fair interactions. Hopefully more hospitals and medical centers enact policies that more freely encourage this sort of genuine exchange.

At the same time, patients should never forget that they need an individualized assessment of their own interests following these mistakes being made.

For example the professor in this case believe that these apology programs can work well but should include a reminder to patient’s about the need to seek out individual counsel. He offers that during the initial meeting between patient, doctor, and risk manager, the legal team should say, “Look, we have potentially different and adverse interests in this because there’s legal matter to deal with—the medical malpractice issues—and you should seek legal counsel.”
That simply reminder can ensure that patient’s aren’t being manipulated into doing something without fully understanding the legal ramifications. In that way, there may be more openness, honesty, and efficiency in the resolution of these matters without having patients lose their rights.

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Nearly 100,000 Die Every Year From Hospital Acquired Infections

A Hospital’s First Priority: Do No Harm

State High Court Orders New Medical Malpractice Trial Following Expert Witness Comments

Fri, 04 May 2012 06:00:19 -0600

Each Chicago medical malpractice lawyer at our firm intimately understands the crucial role played by expert witnesses in Illinois medical malpractice trials. It is not an overstatement to state that the testimony of these witnesses often decide cases. It is no wonder why. Medical malpractice cases allege that a medical professional acted in a way contrary to what other reasonable medical professionals in the same specialty and geographic area would act. There is no better way to prove that point than by having another doctor explicitly explain how the care provided deviated from the proper standard.

Juries never hear one perspective, however. Understanding the crucial role played by these witnesses, defense teams always call their own expert witness to provide a different perspective. Whichever expert witness is most persuasive in any given case is usually the deciding factor in a case.

However, because of the important role played by these witnesses, it is crucial that provide standards of evidence and trial procedures are followed at all times. All American courtroom trials are guided by rules of evidence which dictate what information is relevant and appropriate to be heard and considered by a jury. When errors are made, it is necessary for appellate courts to fix the problem.

That is what happened following to a new state Supreme Court ruling out of Connecticut, according to the Hartford Courant. A new trial was ordered in a medical malpractice case based on inappropriate comments made by a defense medical expert in the case.

The initial lawsuit was filed by the family of a boy who was forced to undergo repeated spinal surgeries to fix back problems. His ordeal began, the family claims, because a doctor failed to take basic X-rays prior to an operation to remove a benign tumor. The mistake has had serious, long-term complications for the child.

The case went to trial and both sides called expert witnesses. The doctor called by the defense team argued that the surgical team acted according to accepted standards. Yet, the doctor didn’t just give this opinion. He went on to make extra statements that had nothing to do with the particular case or his opinion on the reasonableness of the doctor’s conduct. He noted that, “I live in the worst malpractice community in the world. And people—and we practice a lot of defensive medicine. It’s true. It’s unfortunate, but it’s true. And so we order way more tests.”

Of course, the implications of the comment was to convince the jury that because of malpractice cases doctors order more tests than they need to. Besides the dubious claims in general, there is absolutely no relevance to general claims about defensive medicine and the conduct of a doctor in a single case. But that is not all, the defense medical expert went on to explain say:

“You hear about the cost of medicine going up. We are at the epicenter of it because we have more doctors leaving because they can’t get insurance and things like that. So we order way more tests than are necessary to protect ourselves.”

The medical malpractice lawyer representing the plaintiff rightly called for a mistrial, because the comments were completely irrelevant to the case and had the clear ability to unfairly prejudice the jury. The mistrial motion was denied by the trial court, and the jury ultimately found for the defense. The plaintiff appealed and the appeal reached the highest court in the state. That court eventually reversed the judgment of the trial court and demanded a new trial.

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Medical Malpractice Case Underway After Woman’s Death Following ER Visit

Thu, 03 May 2012 06:00:53 -0600

A medical malpractice lawsuit has just gotten underway involving a family that claims that their loved one died as a result of inadequate care being provided by those who were charged with saving her life. The wrongful death suit was filed by the woman’s family against the emergency room doctor. As in all wrongful death lawsuits, the family claims that their loved one would still be alive were in not for the failure of another to provide the degree of care and caution that the civil law demands.

As reported by North Jersey News, opening statements in the case were recently made where a medical malpractice attorney argued that the 45-year old woman at the center of the case was hurt by her emergency room doctor when she was rushed into the hospital in late December in 2008. The woman had fallen and hit her head, which prompted the emergency room visit. A CT scan afterwards revealed that she had bleeding on the brain.

According to her medical malpractice attorney, had the woman’s condition been treated immediately she could have survived. However, the family alleges that certain procedures were not followed, which meant that she did not receive the care that she needed, leading her to fall into a coma. Eventually she went into surgery, but it was too little too late. The family was informed that she would not be able to recover. She was taken off life support the following day.

On the other side, the medical malpractice attorney representing the defendant-doctor claimed that the medical professional acted appropriately in contacting other specialists. They further allege that the woman had a “long and complicated” history which contributed to her passing.

The plaintiff’s attorneys countered that, the role of an ER doctor goes beyond simply acting as a “traffic director.” Instead, the attorney explained that “Emergency room medicine is a medical specialty, with its own medical specialty board.” In other words, simply sending patients somewhere else are often insufficient, unreasonable conduct for ER doctors which might be an example of deviation from standard care.

Our Chicago medical malpractice lawyers understand that Illinois medical malpractice suits related to emergency room errors. Each different kind of medical malpractice case comes with its own unique issues. As this case demonstrates, emergency rooms issues are somewhat different than issues where time is less of a factor. Of course, that does not mean that medical providers are always immune from liability. As with any medical specialty, the law will examine if the specific conduct in each case was up to a reasonable standard when compared with others in the same specialty and geographic area.

There are no automatic answers to questions and situations like this. The specific verdict should hinge on what evidence is available regarding the woman’s condition when she entered the emergency room and what was (or was not) done. Medical experts will play a crucial role, explaining to the jury whether or not, given those specific circumstances, the doctor’s actions were or were not reasonable.

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New Illinois Medical Malpractice Lawsuit Involving Failure to Diagnose Cancer

Wed, 02 May 2012 06:00:17 -0600

The Madison-St. Clair Record is reporting on a new Illinois medical malpractice lawsuit involving an issue with which our Illinois medical malpractice lawyers are very familiar. A woman with breast cancer has filed suit against her former doctors alleging that they failed to timely diagnose her cancer. The delay in diagnosis has had serious adverse effects on her ultimate prognosis, she claims.

Two doctors, one from a southern Illinois medical groups and another from a radiology group, were named as defendants in the suit. At the heart of the suit are allegations that the doctors misread a mammogram that the woman had received and failed to order a follow-up sonogram which would have identified the breast cancer. The medical mistakes allegedly took place over ten years ago in April of 2001. The complaint filed in the suit argues that the mammogram misreading and failure to order a sonogram led directly to the failure to diagnose cancer which itself has had disastrous consequences on the woman’s life.

Specifically the woman is alleging that the delay had caused her to suffer pain, disfigurement, mental anguish, lost wages, and significant medical costs. The lawsuit seeks accountability on the part of the doctors and redress to help the woman recover her losses caused by those alleged errors.

Failure to diagnose cancer cases are some of the most heart-breaking cases involving unreasonable care being provided to patients. As most readers likely know, cancer of all kinds essentially involves unregulated cell growth. Over time, cells divide and grow inside the body uncontrollably. In this way they form malignant tumors with a wide range of health problems as they invade other parts of the body.

As explained by Pub Med Health, in many cases the cancer can spread to other parts of the body via one’s bloodstream to lymphatic system. Of course the more cell growth and the more spreading of cancer cells leads to more severe health problems and ultimately worse prognosis. That is exactly why timing is so important in these cases—the earlier cancer is caught before it grows and spreads, the more likely it might be able to be eliminated in the body altogether.

Various treatment options exist for cancer patients, depending on the specifics of their case. Isolated cancers often can be handled with surgery, where surgeons try to remove the entire mass. Many other options also exist, including chemotherapy and radiation.

Each Chicago medical malpractice lawyer at our firm has worked on cases exactly like the one discussed in this case, involving failure to identify cancer early-on. We are intimately familiar with the serious consequences of these diagnosis errors—particularly when cancer is involved. Patients who go to a medical professional for tests like mammograms or with other complaints, they have a reasonable expectation that their medical providers will act reasonably and identify cancer if it exists. When the cancer is not identified, then Illinois medical malpractice may have occurred. It is vital for those hurt in this way to ensure full accountability by visit with legal professionals.

See Our Related Blog Posts:

Illinois Brain Injury Results in Medical Malpractice Lawsuit

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