Articles Posted in Medical Malpractice

by

In the many years that I have practiced medical malpractice in Cook County and Illinois, my clients have warned me that the pertinant medical records in their case had been falsified, changed, deleted or simply removed from the hospital and medical charts.

In Illinois, the “intentional destruction, mutilation, alteration or concealment of evidence” is called spoliation of evidence. If medical records were to be destroyed or altered, the Illinois Supreme Court can impose a sanction upon any party who unreasonably refuses to comply with any discovery rule or order entered pursuant to the Illinois Supreme Court Rules. The court has the power to stay the proceedings pending compliance; default the case, barring further pleading related to the issue; dismiss a claim or counterclaim related to that issue; exclude testimony related to the issue; to strike any relevant portion of the offending party’s pleadings and enter judgment on the issue; and to enter a default judgment or dismissal against the offending party.

In 1995, the Illinois Supreme Court recognized a separate cause of action for negligent spoliation of evidence. So if your medical records in a medical malpractice case were altered by the medical staff, then you could file a separate lawsuit regarding the altered evidence. And because adequate remedies for the destruction of evidence already exists under Illinois Supreme Court Rule 219, a new tort wasn’t created. Instead, the Supreme Court held that an action for negligent spoliation could be brought under existing negligence law.

Continue reading

by

When you go for an MRI at a local Chicago hospital you expect that the technician interpreting it will give a clear and correct diagnosis. However, oftentimes the MRI and other scans that are the basis for the medical treatment and care prescribed by our doctors are simply not reliable because of radiology errors.

In one of our cases, a treating radiologist viewing an MRI scan noted certain changes in her lumbar spine. But later, this same patient was re-examined by another orthopedic surgeon who ordered new scans. And this time around the radiology report found none of those subtle changes. The meaning of all of that is that the treatment plan laid out by our client’s first treating physician relied on scans that were flawed. The images seen were different on the second set of MRI scans.

Did the radiologist make a mistake? Not really, according the second doctor. But the scans themselves can be different. What’s sobering to know is that some MRI scans and other scans, X-Ray and CT can appear different because of the quality of the images. Even academic radiologists say that different scans of the same part of the body can reveal very different findings.

Continue reading

by

Chicago’s 7th Circuit Court of Appeals reversed a ruling that had dismissed a prisoner’s medical malpractice claim against his prison. Inmate Diego Gil brought a suit against the Federal Correctional Institution of Oxford, Wisconsin, claiming negligence and medical malpractice under the Federal Torts Claim Act, along with a violation of his Eighth Amendment rights. Diego Gil v. James Reed, et al., No. 06-1414.

In March 1998 Gil underwent surgical repair of a rectal prolapse. When his condition worsened after the unsuccessful surgery Gil sought medical aid from a physician’s assistant at his prison. But the physician assistant refused to give Gil medical attention, stating he was abusing the facility’s emergency care.

This refusal of care continued for the next year and a half. During that time Gil developed an infection near the surgical site and was denied antibiotics. Gil’s requests to see a specialist were continually denied. When Gil was finally allowed to see a colorectal surgeon he was immediately taken to surgery for rectal prolapse. After his second operation Gil was prescribed specific pain medications and warned against taking Tylenol III as it could cause constipation that would exacerbate his condition. Yet the prison staff refused to give Gil the prescribed pain medications and instead gave him Tylenol III.

At this point Gil filed suit against several of the prison officials for medical negligence and malpractice. He also alleged that the refusal to follow the surgeon’s instructions amounted to a deliberate indifference to his serious medical needs as a violation under the Eighth Amendment of the Constitution.

Continue reading

by

A Cook County jury verdict was entered in favor of the University of Chicago Hospitals in a 2005 trial and was upheld on appeal to the Illinois Appellate Court (Kashief Weathers et al. v. University of Chicago Hospitals, et al., No. 1-061726). In the case, several doctors were accused of causing brain damage to an infant born with his umbilical cord wrapped around his neck. The plaintiff child now suffers from cerebral palsy and severe brain damage.

The baby’s mother brought an Illinois birth injury malpractice claim against University of Chicago Hospital alleging that defendant doctors failed to relieve the trauma caused by his umbilical cord during his birth in October 1988. There were also allegations that the doctors didn’t timely treat the baby’s seizures after his birth.

The plaintiffs’ obstetric expert testified that the defendant doctors deviated from the standard of care by not performing a cesarean section, which would have sped up the delivery. The expert felt that a quick delivery could have changed the child’s outcome because the brain damage likely occurred at some time during labor.

But the defense expert, a pediatric neurologist, disagreed. He felt that a cesarean section would not have made a difference because in his opinion the baby was injured at least one day prior to his birth. So by the time his mother was in labor there was nothing the doctors could have done to alter his outcome.

The trial jury sided with the defense and entered a verdict in favor of the University of Chicago Hospitals. The plaintiff brought the case for appeal on several counts.

Continue reading

by

When you go to the hospital for a surgery you are seen by a bevy of treaters- anesthesiologist, surgeon, attending physician, residents, etc. And all of them are employed by the hospital, right? Wrong. Many of the physicians that practice at a hospital are actually independent contractors and the hospital can argue that it has no liability for medical negligence these individuals commit- even while working on their property.

In order to bring a claim against a hospital for medical negligence in Illinois by a non-hospital employed physician who provided services at the hospital, there needs to be “apparent authority”. Apparent authority deals with whether the physician appears to be an agent/employee of the hospital or clinic and has the power to act on their behalf. So if a patient can prove that they thought their physician was employed by the hospital and that it was reasonable for them to do so, then the hospital is liable for the negligent physician.

The current case law relies on the decision in York, M.D. v. Rush Presbyterian St. Luke’s Medical Center, et al. (2006 WL 1702529), an Illinois case based locally in Chicago. York established that because a patient relies upon a hospital to provide services during the course of his or her stay then they make hold the hospital liable for negligence by those performing those services, even if they are not employed by the hospital.

Continue reading

by

Patient responsibility is a common phrase bantered around in medical negligence cases. It refers to the patient’s obligation to accurately represent their symptoms and complaints. The main reason this is an issue hinges on the fact that a large part of what a treating physician relies on, at least in the initial contact with a patient, is the patient’s subjective telling of his or her complaints.

For example, if a patient presents with a persistent cough but isn’t sure for how long this makes a large difference in the initial work-up by the physician. A cough is not a red flag for a serious, life-threatening disease and oftentimes is indicative of nothing more than a common cold. However, when combined with other factors, such as a history of smoking, recent unexplained weight loss, or bloody phlegm, it can be a clue to a more serious problem.

Gone are the days when our local family doctor took care of us from childhood through adulthood and knew all our family’s medical history. Nowadays a yearly check-up with your primary physician is comprised of a quick interview with a nurse and then an even quicker visit with the doctor. Most physicians don’t spend a lot of time prodding and considering each individual question. They expect that you will tell them concisely what is wrong, give them all the relevant information, and then they will diagnose and treat you. But it really isn’t that straightforward. In order to ensure that you get the most out of any physician encounter, and are receiving proper treatment, you need to be your own advocate.

Continue reading

by

A Lake County, Illinois circuit court presided over Muno v. Condell Medical Center, et al., (No. 2-06-0587), a medical negligence case where a minor died after the planned surgery failed with respect to the anesthesiology provided. In this case, the anesthesiologist and his group decided not to bill the family after this child died during surgery. When the family brought suit against the anesthesiologist for his anesthesiology error, the physicians argued that he should be immune from any legal action under the Good Samaritan Act because he did not bill for his services.

Good Samaritan Act Regarding Exemption from Civil Liability for Emergency Care

Any [physician] who, in good faith, provides emergency care without fee to a person, shall not, as a result of his or her acts or omissions, except willful or wanton misconduct on the part of the person, in providing the care, be liable for civil damages. (745 ILCS 49/25)

At the bench trial the jury ruled in favor of the child’s family . But one of the defendants, an anesthesiologist, appealed the verdict stating that the court should rule in his favor because he didn’t bill the family for his services. The appellate court relied on Estate of Heanue v. Edgcomb for the proposition that a doctor cannot simply withhold a bill to the injured patient and stand behind the immunity provided by the Good Samaritan Act each time he/she choses not to diagnose, treat or simply errors causing injury or death to a patient.

Continue reading

by

Loyola University Medical Center was held liable by a Cook County jury in 2006 for “institutional negligence” involving the unsuccessful heart transplantation attempt of Carl Longnecker, the plaintiff decedent. The hospital was held liable for not ensuring that a doctor understood his role on the heart transplant team. At the same time the jury found that the same doctor, also named as a defendant, was not guilty of Illinois medical negligence.

Longnecker had been waiting for a transplant for 14 months when he was notified that a heart had been found for him. Dr. Parvathaneni was responsible for obtaining that heart and getting it to Loyola, where the transplant would be performed. According to surgeons at Loyola, Parvathaneni played a crucial role in the process in that they relied on his inspection and evaluation when they accepted and used the heart. Dr. Parvathenani testified that he was unaware that he needed to perform a detailed assessment of the heart, but just was responsible for getting it to Loyola quickly. So when it became evident that the heart had significant disease and allegedly never functioned after its removal the question was who was responsible.

The transplant surgeons decided to go ahead with the surgery, stating that they needed to go ahead with the transplant of the diseased heart because Longnecker’s own heart had already been removed. However, it should also be noted that the doctors could have used an artificial heart in this case. Longnecker never regained consciousness after the surgery and died several days later.

Continue reading

by

In a sharply divided decision, 4-3, the Illinois Supreme Court held that plaintiffs who are allowed to refile a case after a voluntary nonsuit, would still be allowed 90 days after the refiling to present the required Section 2-622 affidavit of a physician or other medical provider to certify that an Illinois medical negligence complaint has merit.

In Illinois it has been the law that as a prerequisite to filing any Illinois medical malpractice case, the plaintiff’s attorney must include with the complaint a certificate of merit asserting that the case has merit from a physician or medical provider expert in the area of medicine being complained about. Sometimes lawyers find that although they believe the facts support a case for medical malpractice, no medical certificate was available in advance of the running of the statute of limitations.

In Illinois the statute of limitations is two years for most tort/negligence cases with some exceptions. What the statute of limitations does is act as a complete bar from bringing the action at all, i.e. the court would dismiss the case unless it is filed within the time limit.

Continue reading

by

June 18, 2008- After a lengthy mediation session led by retired Cook County Circuit Court Judge Stuart Nudelman, the defendants, Victor Colin, M.D. and his professional practice, Elgin Family Physicians, agreed to settle the Illinois wrongful death case of decedent, Timothy.

Kreisman Law Offices handled the Illinois wrongful death claim which centered on the Illinois physicians’ medical malpractice as a result of an incorrect diagnosis and treatment of Timothy’s condition of fever, headache, and sleeplessness for at least two weeks. While these signs might not be overly alarming in your typical patient, Timothy’s circumstances weren’t those of your typical patient.

Born with a congenital heart valve defect of Tetralogy of Fallot, Timothy had undergone three open heart surgeries for valve repair, including a porcine (pig) valve replacement of his pulmonary valve in 1981. This history placed Timothy at high risk for bacterial endocarditis, which is a serious infection of the endocardium (the smooth interior lining of the heart) and the heart valves, typically caused by bacteria. It was this type of infection that eventually led to Timothy’s death.

Continue reading