Justia Lawyer Rating for Robert D. Kreisman

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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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I firmly believe in the importance of voter rights and the importance of promoting a free, fair and open voting experience for all eligible voters. For the 2008 Presidential Election I joined up with lawyers from across the country to protect the voting rights of citizens.

Even though I reside in Illinois I decided to serve in Dayton, Ohio on Election Day. Given the voter difficulties in recent presidential elections, particularly in the states of Florida and Ohio, I felt that I would be most useful in Ohio. I was assigned to the Dixon Wellness Worship Center, the polling place for Dayton’s Precinct 14-I. My job was to work outside of the polling place and answer any voting questions.

On Election Day I arrived an hour before the polls opened. Overall, my experience was very positive and had very few conflicts. The polling officials were seasoned and knowledgeable in dealing with the large turnout and ensured that the voting was orderly and well run. Several people showed up to the polling place unsure whether they were in the correct place. The polling officials and I were able to determine if they were in fact eligible to vote in this precinct, and if not, then where they should be voting.

At the end of the day I headed home feeling that I had contributed to our election process. As a lawyer I am in the unique position of making sure that the rights of others are not violated and can help those who can not stand up for themselves. While I didn’t witness any gross voter right violations in my precinct, I believe that it is important to take preventive measures to ensure that this remains the case nationwide.

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Last week Illinois Attorney General Lisa Madigan filed a lawsuit against SFCA, Inc., a distributor of baby cribs, bassinets and playpens, claiming that SFCA continues to sell and distribute the subject bassinet, even after voluntarily recalling 1,000,000 of the products in 2007.

The bassinet allegedly has design flaws. Federal regulators warned consumers that the bassinet caused the death of two infants. The bassinets are equipped with sides that drop down for easy access to the baby. Unfortunately the design creates a gap that the baby can slide through. The two infants that died did slide through and hung to death.

SFCA is not taking responsibility regarding the product liability claim for the defective bassinet, which is manufactured and marketed through Simplicity, Inc., a subsidiary company of SFCA, Inc. SFCA maintains that it wasn’t responsible for the items produced by Simplicity because it only just bought the Simplicity brand in August 2008. Yet closer examination reveals that SFCA bought the Simplicity brand bassinets, but then shipped them from its own facility using the same design of the products that killed the 2 infants.

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In Illinois, we have the option of early voting. I personally had a very smooth voting experience when I voted last week just a block from our Chicago office. I didn’t have to wait in a never-ending line of voters and the polling officials were both extremely helpful and well-informed. There were no hitches in casting my vote.

However, not all Americans have such an easy voting experience. For example, in Duval County, Florida, many early voters worry about whether their votes will really be counted. In the 2000 election, approximately 26,000 ballots were discarded in this predominantly Democratic area around Jacksonville. In that 2000 election, voting machine irregularities accounted for thousands of votes being discarded in predominantly black populated areas.

Then there are other states where voters have been stricken by the thousands from voting because of state rolls in supposed violation of federal law. Yet further review of the records of these stricken voters shows that they may be mistakenly denied from voting. According to the states in question these mass removals are their attempts to adhere to the Help America Vote Act of 2002 by removing the names of voters who should no longer be listed.

The majority of the questions regarding improper striking of voters centers around the key swing states of Michigan, Ohio, Indiana, Nevada and Colorado. These states have been accused of an improper usage of voters’ Social Security information to verify their application status. They could be in further violation of federal law by removing voters from their rolls within the 90 days preceding the federal election. A voter may only be removed during that time frame if they have died, been declared unfit to vote, or informed authorities that they moved out of the state.

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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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On October 18, 2008, Congressman Mark Kirk and challenger Dan Seals debated before area voters at Deerfield High School. Both candidates are running for the 10th Congressional District, which encompasses Chicago suburbs from Wilmette and north through Waukegan, Illinois. There were more than 800 people in attendance and loads of media reporting and videotaping the debate for later rebroadcast.

Representative Kirk, the Republican incumbent, said he was pro-choice, pro-environment and pro-education. He said that the Washington Post voted him the eighth most independent member of Congress. Kirk said that he opposed President Bush 59% of the time according to the Congressional Quarterly.

Dan Seals, Democrat, is making his second attempt to unseat his opponent. Seals repeatedly linked Kirk with President George W. Bush, citing that Kirk voted with the Bush Administration 90% of the time. Seals attacked Kirk for voting against the equal pay for woman in the workplace bill, also known as the Paycheck Fairness Act.

The heated debaters traded barbs regarding woman’s rights, the Bush administration, and their positions on other social issues. Even though the candidates had a few moments of agreement, the debate was acrimonious, fueled by the crowd eager to wildly cheer or boo either of the candidates.

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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.

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Even though a recent study showed infant death rate declining by 2% in the United States and Illinois declined recently, the percentage of decline is much less than in prior years. In fact, this is the smallest decrease since we first began recording the infant death rate in 1907. This trend is compounded by the fact that Illinois and the U.S. have more infant deaths than most other industrialized countries, a trend that has worsened with each passing year.

Each year more than 28,000 infants under one year-old die in the United States. Two-thirds of these infant deaths are preterm babies. In 2006, 6.71 infants died in the United States for every 1,000 live births. In 2006, Illinois was well above the national average with 7.2 infants deaths for every 1,000 births. Illinois’s death rate seems even more startling when compared with that of other countries. In 2004, twenty-two countries had infant mortality rates below 5.0 infant deaths for 1,000 live births, and many Scandinavian and Asian countries posting rates below 3.5.

The infant death rate is important because it is used as an international indicator of a nation’s health and quality of medical care. So even though individuals in the United States spend a much larger portion of its income on health care than those in other industrialized nations, we continue to fall short of the international standard. In 1960 the United States had the 12th lowest rates of infant mortality in the world. But by 2004 we had dropped to 29th lowest, the same rank as Slovakia and Poland.

If we are spending so much more than these other countries, why are we falling further and further behind the world-wide standard? Some look towards recent trends in preterm births, Cesarean deliveries, and other types of birth injury as the source of this problem. Others feel the problem is due to cultural issues, like drug use and obesity. And yet another group feels that the decentralization of our health care system is to blame.

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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.

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Hospitals and doctors have begun to explore new ways of obtaining payment for their billed services. However, oftentimes these hospitals and doctors are only looking out for their best interests, not their patients’.

Health care providers have teamed up with credit card companies to create a ‘medical credit card’, which is essentially a credit card that can only be used on medical purchases. You can fill out an application in your doctor’s office and get approved while sitting in the waiting room. From a doctor’s perspective this is ideal because they receive instant payment for their services. But oftentimes the patient is the one who loses.

Patients are lured in with low interest rates and the ease of applying, but are not told that if they miss one payment the interest rates skyrocket. Also, some patients have reported that they didn’t even know they were applying for a credit card- they thought they were signing a financial payment agreement with their doctor. Not to mention that when these credit cards are offered to patients they are often in need of care, so their focus is more on their treatment and not their finances.

Another way hospitals have started to solve the problem of unpaid medical bills is to obtain a patient’s credit report. Hospitals attest that they only use these reports to determine whether they should offer charity care or if they should pursue them through bill collectors, but some worry that there is an ulterior motive. Hospitals are only required by law to treat patients with an emergency problem, or who constitute a medical necessity. So what’s to stop them from turning you away if they find out you have bad credit?

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