Articles Posted in Medical Malpractice

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A recent Illinois Appellate Court granted a surgeon’s motion for summary judgment in a medical malpractice lawsuit when it found that the surgeon was not responsible for a sponge that was left in a patient after performing a surgery. Two months after the procedure was performed the patient underwent an additional procedure, at which time the surgical sponge was discovered. Forsberg v. Edward Hospital and Health Services, No. 2-08-0243 (April 8).

The patient sued both the surgeon individually and the hospital where the procedure was performed. However, after the hospital settled out of court the surgeon requested summary judgment based on his opinion that he had satisfied the standard of care by relying on information he received from the nurses. After a surgical procedure the circulating nurse and scrub nurse are responsible for accounting for all surgical materials. In this case they had told the surgeon that the sponges were all accounted for, at which point the surgeon proceeded to stitch the patient up.

Typically the plaintiff in an Illinois medical malpractice case has the burden to prove that the defendant doctor breached the standard of care, which is usually done by providing expert testimony. However, in Illinois expert testimony is not required to establish the relevant standard of care “where the common knowledge of laymen is sufficient to recognize or infer negligence.” Walski v. Tiesenga, 72 Ill.2d 249 (1978). In the present case the court held that medical expert testimony was not necessary because it is common knowledge that sponges should not be left behind in a patient after a surgery.

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In September 2003, Lisa Strong reported a sharp shooting pain in her back. She thought it was yet another kidney stone and expected the discomfort to pass, but this time it was different and became worse. Because of a series of mistakes, misdiagnosis and miscommunication, Lisa Strong lost both of her legs and both of her arms to amputation because of medical negligence.

Ms. Strong filed a Florida medical malpractice lawsuit against various physicians whom she alleged caused her injuries and resulting amputations. The physicians all seemed to agree that there were profound medical errors that caused Ms. Strong’s injuries, but apportioned blame on each other.

However, the jury did not seem to agree that there was medical malpractice and returned a verdict of not guilty against all of the defendant doctors. There were numerous mistakes made by the various hospital doctors, which combined with the finger pointing by all the physicians during the trial made for a very confusing case. Lawyers involved in the case believe the not guilty verdict was a result of the jury being confused by the case facts and unable to correctly determine who was at fault.

In a rare move the trial judge threw out the jury’s verdict, concluding that the verdict was “contrary to the law and manifest weight of the evidence.” It is very rare for a trial judge to reverse a jury’s verdict with only 1/2 to 1% of verdicts being set aside in this manner. Most jury verdicts are left undisturbed by trial judges who prefer to let any issue of law be decided by the appeals process. A new trial has been ordered, which will give Ms. Strong another chance at pleading her case against the negligent physicians.

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Last year our law firm reviewed a tragic Chicago medical malpractice case involving the death of a 28-year-old mother of three. While the facts seemed to point towards medical negligence as a contributing factor of the young woman’s death the medical records did not reveal a clear cut cause of death.

I remember the first conversation I had with the decedent’s husband, which took place shortly after her sudden death. During that conversation we discussed whether or not an autopsy should have been ordered. In my opinion whenever the cause of death seems unclear or suspicious it is wise to have an autopsy performed. However, in this case the woman’s surviving family members opted not to get an autopsy done.

Sadly, in this young woman’s case the real cause of death was never determined. While the medical records were reviewed by both a pathology expert and an infectious disease physician, neither were able to point to a definitive cause of death without an autopsy report. However, both physicians ruled out the causes of death listed on her death certificate, making the case even more of a mystery. Yet without any clear evidence there was nothing that could be done from a medical malpractice standpoint.

Would an autopsy have revealed the true cause of her death? Would it have shown something the doctors overlooked? Could the doctors have done something to prevent her untimely death?

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When people receive medical treatment at a hospital they typically assume that the doctors are employees of that hospital. However, in many cases the doctor may be an independent contractor of the hospital and not a hospital employee.

Because of the confusion that exists around who treating physicians and staff are actually working for, medical malpractice cases often involve an issue of apparent authority. The general rule is that if a patient believes that his or her doctor is employed by the hospital where he or she received treatment and can prove that it was reasonable for them to think so, then the hospital is liable for any negligence by that physician.

A recent decision by the Illinois Appellate Court further clarifies the apparent authority rule. In Wallace v. Alexian Brothers Medical Center, No. 1-08-2852, the Illinois Appellate Court ruled that a hospital was not liable for negligence by its independent contractor doctors because the plaintiff had signed several consent forms which clearly stated that the doctors treating her injured daughter were independent contractors and were not in fact hospital employees. By doing so they affirmed the partial summary judgment granted by the trial court in favor of the defendant.

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Hospital-acquired infections are on the rise and have become a serious health problem. A 2007 study showed that 99,000 deaths were attributable to hospital-acquired infections alone. Illinois responded to this health problem by becoming the first state to enforce requirements that hospitals report incidences of hospital-acquired infections.

In 2007, Illinois passed two pieces of legislation regarding the control of hospital-acquired infections, which were Senate Bill 233/Public Act 95-312 and House Bill 192/Public Act 95-282. The Senate Bill requires each hospital to create a MRSA (Methicillin resistant Staphylococcus aureus) control program. This infection control program must include an active testing system to identify all MRSA-colonized intensive-care unit (ICU) patients and other at-risk patients. The policy mandates that those patients infected with MRSA bacteria are placed on isolation. The Senate Bill also requires that each hospital make annual reports of all MRSA incidences among those ICU and at-risk patients.

The House Bill represents a more gradual approach to infection control and is supported by the Association for Professionals in Infection Control Epidemiology (APIC). The law requires hospitals to perform annual risk assessments regarding infections and to develop infection control plans that follow the Centers for Disease Control and Prevention (CDC) guidelines for MRSA and other multi-drug resistant organisms.

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A new DNA test has been developed by Qiagen to identify the human papillomavirus (HPV), a virus found to be associated with cervical cancer. Scientists state that this new test is an improvement on current testing methods and might eventually replace the Pap smear test as a way to diagnose HPV.

Early diagnosis is key in fighting all types of cancer, including cervical cancer. In fact, the most common pitfall doctors fall into regarding patients with cancer is failing to diagnose cancer early enough to provide treatment. This new test could reduce the number of missed cervical cancer cases and improve cancer patients’ outcomes.

The optimism around this new DNA test is based on the results of an 8-year study of 130,000 women in Indian that was recently published in the New England Journal of Medicine. The study, financed by The Bill and Melinda Gates Foundation, revealed that a single screening with the DNA tests met all the same standard as all other methods of early diagnosis of cancer.

Similarly, a study by the University of Chicago reports that a predictive model based on family history of breast or ovarian cancer can aid genetic counselors in diagnosing breast cancer in African women. Development of genetic testing for different ethnicities is important because research shows that genetic mutations vary among racial and ethnic groups.

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Thousands of Americans across the country, Illinois, and in the Chicago area have suffered life-threatening kidney injuries after taking Fleet Phospho-Soda in preparation of colonoscopies and other surgeries. Fleet Laboratories is the principal manufacturer of Phospho-soda and has been promoting the product without warning of its drug side effects, which can include kidney damage and renal failure.

Studies have revealed that the link between Fleet Phospho-Soda and these side affects could be the result of calcium phosphate tubules that form in a kidney, which can lead to acute renal failure.

As far back as April 2002 a Health Canada advisory first warned the medical community that oral sodium phosphate solutions like Fleet Phospho-Soda can affect heart and kidney function. A later article published by the New England Journal of Medicine in September 2003 warned that this product could result in serious side effects, such as seizures and acute renal failure.

In December 2008 the U.S. Food and Drug Administration (FDA) issued a patient saftey alert which advised that oral sodium phosphates solutions should be available by prescription only. Immediately following that warning Fleet issued a recall of Phospho-Soda, which had been sold as an over-the-counter medication. In their statement regarding the recall, Fleet advised doctors to no longer directed patients to use this product for bowel cleansing.

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Preeclampsia is a condition that results in high blood pressure and leaky blood vessels during pregnancy. It has been estimated that 5% of pregnant women in Illinois will be affected by preeclampsia and that about 300,000 woman per year are affected in the United States. A growing body of evidence suggests that women who develop preeclampsia double their risk of having a heart attack or stroke.

In most cases the symptoms of preeclampsia disappear soon after delivery, so most women never have to think about it again. But in light of recent research findings women with a history of preeclampsia might need to think about it after all.

One study found that these women had a higher propensity for forming blood clots. Research from 2007 found more hardening of the arteries of women who experienced abnormal high blood pressure in pregnancy. Other studies have found that women with preeclampsia had more heart attacks, strokes and blood clots later in life when compared to other women who did not have preeclampsia.

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In its recent ruling the U.S. Supreme Court ruled that premarket approval from the Food & Drug Administration (FDA) does not preempt pharmaceutical companies from being held liable when their drug fails to meet state standards. In Wyeth v. Levine the court held that drug manufacturers can be sued in state courts even when they follow the rules and standards set out by the FDA.

Wyeth v. Levine involves a female, Vermont musician who lost part of her right arm after Wyeth’s drug Phenergan was injected into one of her arteries. The drug’s FDA-approved warning label warned against administering the drug this way, but did not prohibit it.

Wyeth argued that they were not required to change their labels to comply with Vermont regulations and that meeting the federal standards was enough. Levine argued that she was able to bring a liability claim under Vermont law even though Wyeth complied with federal standards.

The key issue of the case was whether or not Levine’s claim was preempted since Wyeth met the federal standards. The Supreme Court ruled that the case was not preempted and that Levine is able to bring a claim under Vermont law.

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A February 2008 decision by the Supreme Court stands as a barrier to patients who desire to sue for medical device liability. The Supreme Court ruling in Riegel v. Medtronic, Inc. holds that patients or their surviving heirs would be barred from suing makers of complex medical devices like the Medtronic’s heart device product, if the Food and Drug Administration (FDA) approved its sale.

Since that ruling, judges nationwide have applied the Supreme Court decision to a wide range of cases where manufacturers was being sued. The most recent dismissal was just last week by the Wisconsin Supreme Court.

But now members of Congress want to change the law. Lawmakers and patient advocate groups say that that February 2008 Supreme Court decision left patients legally powerless against the FDA’s oversight of products.

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