Articles Posted in Medical Malpractice

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An Illinois oncologist was found not to be qualified to testify as an expert witness in a Chicago medical malpractice case against a surgeon accused of failing to diagnose and treat a patient’s lymphoma. McWilliams v. Dettore, et al., No. 1-07-0678.

In a split decision, the Illinois Appellate Court for the First District affirmed a Chicago Cook County Circuit Court Judge’s granting of a motion in limine brought by the defendant in a medical malpractice suit. The motion was brought to prevent plaintiff’s named physician expert from testifying that the defendant violated the standard of care when he chose not to perform a biopsy on the plaintiff’s swollen lymph node. The motion focused on the fact that the physician expert was a hematologist/oncologist, whereas the defendant was a surgeon.

However, the difference in specialties had nothing to do with the court’s decision to bar the plaintiff’s expert. Rather the court found it key that the physician expert had no experience with a surgeon’s decision-making process in deciding whether or not to perform a biopsy.

In his opinion, Judge Garcia stated that in order for a medical expert to be able to testify as to what the medical standard of care is for a given physician, he or she must be able to “step into the shoes” of that doctor. Judge Garcia found that while the oncology expert in this case might be critical of the defendant’s decision to not obtain a biopsy, he did not demonstrate in his testimony that he was familiar with the medical standards guiding a surgeon’s medical judgement.

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At the completion of a jury trial where the family of the deceased patient received a verdict of $3.6 million in an Illinois wrongful death case, a Cook County Circuit Court judge entered a verdict in favor of the defendant notwithstanding that verdict. However, on appeal, the Illinois Appellate Court reversed the trial judge’s decision and ordered that the case be returned on a motion for a new trial. Walton v. Dirkes, No.-08-0461.

The key issue in the case was whether or not the the patient had reported symptoms that would have matched a diagnosis of acute lymphoblastic leukemia, which wasn’t diagnosed until hours before his death.

The acute lymphoblastic leukemia went undiagnosed during two office visits to the defendant doctor. It wasn’t until Walton was admitted to the emergency room at Loyola University with an alarmingly high white blood count that the correct diagnosis was made. He died the next day from cardiac arrest related to his acute lymphoblastic leukemia.

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Chicago-based Resurrection Health Care has dispensed with a class action lawsuit by settling with uninsured patients who allegedly were excessively charged. Under the settlement agreement these patients will be issued vouchers for future health services at Resurrection Health Care facilities. Niewinski et al. v. Resurrection Health Care.

Notices have been sent to some 220,000 former patients informing them that they might qualify for the vouchers. The value of each voucher to be awarded will be determined on an individual basis and depend on payments that the uninsured patient made to the hospitals. In order to be considered for a voucher, a patient must have paid some or all of at least a $500 medical bill during a one year period from September 2001 to September 2008.

It is important to note that although Resurrection agreed to this settlement, it continues to deny any allegations of wrongdoing. However, since the settlement it has modified its billing structure and reduced the charges to all uninsured patients.

Resurrection Health Care System’s network includes the following Chicago hospitals: Resurrection Medical Center, St. Mary and St. Elizabeth’s Medical Center, St. Joseph’s Hospital, and Our Lady of the Resurrection Medical Center. The extended network also includes St. Francis Hospital of Evanston, West Suburban Medical Center in Oak Park, Holy Family Medical Center in Des Plaines, and West Lake Hospital in Melrose Park, Illinois.

For more information on obtaining your voucher, please contact Resurrection Health Care.

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A lawsuit brought on behalf of an individual for Illinois medical malpractice was found to be a nullity because the supposed lawyer was unlicensed. The so-called nullity rule directly punished the unknowing client in this case.

In Applebaum v. Rush University Medical Center, 2008 WL 4943860 (Nov. 20), the high court of Illinois explained that the nullity rule:

Should be invoked only where it fulfills its purposes of protecting both the public and the integrity of the court system from the actions of the unlicensed, and where no other alternative remedy is possible.

The high court clarified the application of the nullity rule in a case where the plaintiff personally filed a medical malpractice on behalf of his deceased father’s estate. At the time of filing the lawsuit, the plaintiff who was on inactive status with the Attorney Registration and Disciplinary Commission (ARDC).

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A new study by researchers at the University of Chicago Medical Center has stated that at least 2.2 million U.S. adults take medicine in combinations that could trigger dangerous drug interactions. Some of the possible dangerous interactions include muscle breakdown, gastrointestinal bleeding, disruption in heart rhythm, and other serious problems.

Perhaps even more alarming is that at least half of these dangerous interactions involve the use of over-the-counter medications, such as aspirin or dietary supplements. According to the study, one in 25 older adults are at risk for serious drug interactions, the study has found. And for men ages 75 and 85, the risk is as high as 1 and 10.

However, the risk might be even higher because the research focused on major interactions among the 20 most common drugs and dietary supplements. “The public has an awareness that two prescription medications used together might be dangerous,” said the study author, Dr. Stacy Tessler Lindau. Lindau is the assistant professor of geriatric medicines, obstetrics and gynecology at the University of Chicago Medical.

The dangerous drug interactions cited in the study were more a byproduct of individuals unknowingly mixing medications rather than the result of pharmaceutical prescription errors by medical providers.

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While much attention is given to cases where a physician commits medical malpractice, nurses also must meet a certain level of standard of care. Oftentimes in Illinois medical negligence a nurse’s obligations seem to be overlooked.

For example, let’s say that a Chicago patient has known allergies to certain medications which his or her physician has prescribed. The nurse has a duty to be aware of these allergies and inform the physician. If the nurse does not inform the attending physician that the patient should not be receiving these medications then he or she is acting below the standard of nursing care. This is just one example of how a nurse can fail to perform his or her duties.

Good communication is the cornerstone of any relationship, and the physician-nurse relationship is no exception. Nurses have an obligation to question a doctor’s treatment if it is inconsistent with customary medical practices.

For Illinois medical malpractice cases, both Illinois and Chicago courts have upheld this duty of nurses to go over a physician’s orders in instances where a failure to intervene could ultimately result in the patient suffering dire consequences. Or if the nurse perceives that a physician is insensitive to a patient’s condition, or is not making appropriate decisions regarding the patient’s condition, then he or she must intervene. One way to intervene is by initiating the chain of command to exert the pressure necessary to change the course of treatment.

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A California organ transplant surgeon was acquitted in a criminal action that alleged he had intentionally harmed a donor by prescribing excessive amounts of drugs in order to speed up the extraction of the patient’s kidney and liver. The surgeon’s attorney argued that the doctor had flown in from his San Francisco offices in order to retrieve the organs and had prescribed medications in attempts to ease the patient’s suffering after other doctors had failed to perform their duties.

Dr. Roozrokh, the transplant surgeon, was found not guilty of a felony count of abuse of a dependent adult. Two other charges for administering harmful substances and unlawful prescription medicines had both been dropped last spring.

This San Francisco jury trial drew attention to the medical and ethical issues surrounding the complexities of organ transplantation. Typically medical transplant cases are medical malpractice lawsuits, not criminal cases. In Illinois, these cases typically involve some sort of medical transplant error, whether infection or diseased donated organs. This is believed to be the first instance where a doctor had been accused of such criminal actions.

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On Thursday, November 13, 2008, the Illinois Supreme Court heard oral arguments from attorneys representing the various parties in the case of Lebron v. Gottlieb Memorial Hospital Nos. 105741 and 105745. The main issue of contention was whether or not there should be caps on non-economic damages in Illinois medical malpractice cases.

Lebron is appealed directly from the Cook County Circuit Court following a decision by Circuit Court Judge Diane J. Larsen that caps on damages were unconstitutional. These caps were enacted as part of an amendment to the Medical Malpractice Act. The caps dealt specifically with non-economic damages and imposed a legal limit of $500,000 for physicians and healthcare professionals, whereas the cap for hospitals is $1 million.

Lebron was originally filed as an Illinois birth injury case against Gottlieb Memorial Hospital in 2005 after plaintiffs’ daughter was born with birth defects as a result of substandard care at the hospital and negligence on the part of the staff there.

Former U.S. solicitor general Theodore B. Olson presented the first oral argument on behalf of defendants. The core of the Olson argument was that the Illinois Supreme Court has acknowledged in the past that there is a healthcare crisis and that the malpractice caps law was an attempt to solve that problem.

In response to Olson’s assertion, several Illinois Supreme Court justices questioned how the proposed medical malpractice caps could conform with the decision in Best v. Taylor Machine Works, 179 Ill.2d 267 (1997). Best held that a law limiting damages in tort claims was unconstitutional because it violated the state Constitution’s prohibition on special legislation and the principle of separation of powers.

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The Illinois Appellate Court affirmed a Cook County jury’s $2.7 million verdict for institutional negligence against Loyola Medical Center in a Chicago transplant error case. Longnecker v. Loyola University Medical Center, 2008 WL 2550686 (1st Dist., June 25).

The issue in Longnecker was whether Loyola University Medical Center was negligent when they transplanted the decedent with a severely hypertrophic replacement heart. The harvested heart was severely diseased and was only considered for transplantation because the harvesting doctors did not examine it. Despite the diseased state of the new heart, the decedent’s heart surgeon went ahead with the transplant. The decedent died without ever waking up from the surgery.

Most times we think of medical negligence cases as those caused by doctors or medical personnel individually. But a hospital or institution is held to the same standard of care as a doctor or a physician. So when evaluating a case for institutional negligence one asks what a reasonably careful hospital would and should do under similar circumstances. Illinois Pattern Jury Instructions, Civil, No. 105.03.01 (1995). Jones v. Chicago HMO Limited of Illinois, 191 Ill. 2d 278 (2000).

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The U.S. Food and Drug Association is responsible for ensuring that new medical devices are safe enough to be put on the market. As a federal agency, the FDA controls regulation nationwide and within Illinois and Chicago. But what most consumers don’t know is that the process for approving these medical devices doesn’t always ensure that they are effective alternatives to already established medical treatments.

The majority of newly approved medical devices undergo a 501(k) review. Under this review process the manufacturer needs to prove that their device is substantially similar to another device that has already been approved for the market. Once they have done that, the manufacturer just needs to show that the device does what it claims. Yet in the field of medicine, just performing a function is different than guaranteeing the supposed outcome.

For example, let’s suppose that Elaine, an Illinois woman, was trying to decide between which type of radiation she should get to treat her breast cancer. Her options range from conventional radiation, which would irradiate her whole breast five times per week for a total of five weeks, to a newly-FDA approved radiation therapy method called MammoSite brachytherapy. This new method only requires radiation for five days and uses radioactive ‘seeds’ to treat the cancer.

All things being equal, the MammoSite option is much more appealing because it gets the job done in a fraction of the time and is Elaine’s first choice. Her doctor recommends it and she decides to go with the newer treatment option. However, what Elaine doesn’t know is that even though MammoSite is FDA-approved, the long-term effectiveness of the treatment is not yet proven. While early studies have come back with promising results, it will be years before there is enough data to determine whether it is as effective as conventional radiation. Yet many of the women undergoing this form of treatment are unaware that it is still in an experimental state and are trusting the FDA-approval and their doctors’ recommendation.

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