March 2009 Archives

March 31, 2009

University Of Chicago Hospital Violated Federal Law Regarding Patient Care In The Emergency Room

Alex Parker of the Chi-Town Daily News is reporting that according to the Illinois Department of Public Health, the University of Chicago Medical Center is guilty of violating a federal law by not giving an elderly patient who later died adequate medical treatment.  The University of Chicago's own internal investigation demonstrated that its staff did not follow the U of C's own policies and procedures when caring for the patient.

The Emergency Medical Treatment and Active Labor Act (EMTALA) is a federal law that requires every emergency room to offer stabilizing treatment to any patient who comes to the emergency room for treatment, regardless of ability to pay.

Anyone who meeds medical care at an emergency room is absolutely entitled to be triaged and monitored regardless of the circumstances.  EMTALA absolutely forbids hospitals from engaging in the practice of patient "dumping" including outright denials of treatment or a referral to another ER.  This practice often occurs when a low income or senior citizen appears at an ER facility and does not appear to be able to pay for care.

March 30, 2009

20 Tips To Help Prevent Medical Mistakes

The United States Department of Health And Human Services has offered the public some advice on how to protect themselves against unintended medical errors.  According to the Department of Health and Human Services medical errors are one of the nations leading causes of death.  Here are 20 tips to help avoid unintended medical consequences:

1. The single most important way you can help to prevent errors is to be an active member of your health care team.

That means taking part in every decision about your health care. Research shows that patients who are more involved with their care tend to get better results. Some specific tips, based on the latest scientific evidence about what works best, follow.

2. Make sure that all of your doctors know about everything you are taking. This includes prescription and over-the-counter medicines, and dietary supplements such as vitamins and herbs.

At least once a year, bring all of your medicines and supplements with you to your doctor.

 "Brown bagging" your medicines can help you and your doctor talk about them and find out if there are any problems. It can also help your doctor keep your records up to date, which can help you get better quality care

3. Make sure your doctor knows about any allergies and adverse reactions you have had to medicines.

This can help you avoid getting a medicine that can harm you.

4. When your doctor writes you a prescription, make sure you can read it.

If you can't read your doctor's handwriting, your pharmacist might not be able to either.

5. Ask for information about your medicines in terms you can understand--both when your medicines are prescribed and when you receive them.

What is the medicine for?
How am I supposed to take it, and for how long?
What side effects are likely? What do I do if they occur?
Is this medicine safe to take with other medicines or dietary supplements I am taking?
What food, drink, or activities should I avoid while taking this medicine?

6. When you pick up your medicine from the pharmacy, ask: Is this the medicine that my doctor prescribed?

A study by the Massachusetts College of Pharmacy and Allied Health Sciences found that 88 percent of medicine errors involved the wrong drug or the wrong dose.

7. If you have any questions about the directions on your medicine labels, ask.

Medicine labels can be hard to understand. For example, ask if "four doses daily" means taking a dose every 6 hours around the clock or just during regular waking hours

8. Ask your pharmacist for the best device to measure your liquid medicine. Also, ask questions if you're not sure how to use it.

Research shows that many people do not understand the right way to measure liquid medicines. For example, many use household teaspoons, which often do not hold a true teaspoon of liquid. Special devices, like marked syringes, help people to measure the right dose. Being told how to use the devices helps even more.

9. Ask for written information about the side effects your medicine could cause.

If you know what might happen, you will be better prepared if it does--or, if something unexpected happens instead. That way, you can report the problem right away and get help before it gets worse. A study found that written information about medicines can help patients recognize problem side effects and then give that information to their doctor or pharmacist.

10. If you have a choice, choose a hospital at which many patients have the procedure or surgery you need.

Research shows that patients tend to have better results when they are treated in hospitals that have a great deal of experience with their condition.

11. If you are in a hospital, consider asking all health care workers who have direct contact with you whether they have washed their hands.

Handwashing is an important way to prevent the spread of infections in hospitals. Yet, it is not done regularly or thoroughly enough. A recent study found that when patients checked whether health care workers washed their hands, the workers washed their hands more often and used more soap.

12. When you are being discharged from the hospital, ask your doctor to explain the treatment plan you will use at home.

This includes learning about your medicines and finding out when you can get back to your regular activities. Research shows that at discharge time, doctors think their patients understand more than they really do about what they should or should not do when they return home.

13. If you are having surgery, make sure that you, your doctor, and your surgeon all agree and are clear on exactly what will be done.

Doing surgery at the wrong site (for example, operating on the left knee instead of the right) is rare. But even once is too often. The good news is that wrong-site surgery is 100 percent preventable. The American Academy of Orthopaedic Surgeons urges its members to sign their initials directly on the site to be operated on before the surgery.

14. Speak up if you have questions or concerns.

You have a right to question anyone who is involved with your care.

15. Make sure that someone, such as your personal doctor, is in charge of your care.
This is especially important if you have many health problems or are in a hospital.

16. Make sure that all health professionals involved in your care have important health information about you.

Do not assume that everyone knows everything they need to.

17. Ask a family member or friend to be there with you and to be your advocate (someone who can help get things done and speak up for you if you can't).

Even if you think you don't need help now, you might need it later.

18. Know that "more" is not always better.

It is a good idea to find out why a test or treatment is needed and how it can help you. You could be better off without it.

19. If you have a test, don't assume that no news is good news.

Ask about the results.

20. Learn about your condition and treatments by asking your doctor and nurse and by using other reliable sources.

March 30, 2009

Prevenatable Medical Mistakes Can Be Deadly 100,000 Times A Year

The National Academy of Science is reporting that close to 100,000 people who die each year are the victim of preventable medical mistakes.  A medical mistake can mean a doctor chose the wrong type of care in response to a medical problem or provided the correct type of care but carried it out incorrectly. 


church lady.jpgComedian Dana Carvey is one of the lucky ones.  Mr. Carvey believed he was having a double coronary artery bypass which would save his life.  Instead his doctors bypassed the wrong artery.  Luckily, he survived the mistake.  He has filed a $7.5 million lawsuit against the surgeon who made the mistake.

The sugeon claims he made an honest mistake, in part because Mr. Carvey had an unusual anatomic architecure.  Carvey doesn't see it that way.  "It's like removing the wrong kidney. It's that big a mistake," the entertainer told People magazine.


March 26, 2009

Medical Malpractice In The Military


MarineCorpsSeal.jpgShould an active member of the United States military be able to sue the United States Government for medical malpractice?  The answer according to the United States Supreme Court in Feres v. The United States, 24 U.S. 135 (1950) is no.  The Feres doctrine, as it is commonly know, prohibits an active member of the military and not on furlough from suing the United States for injuries caused by another member of the military.  This bar does not extend to family members of active military personnel.

A congressman from New York has introduced legislation in congress to reverse the Feres decision and make the military accountable for the medical malpractice of military doctors.  The Carmelo Rodriguez Military Medical Accountability Act of 2009 is the subject of hearings that are currently before the House Judiciary Subcommittee on Commercial and Administrative Law.  Carmelo Rodriguez was a Marine who died in 2007 after military doctors misdiagnosed a melanoma on his left buttock.  Motivated by his memory, Sgt. Rodriguez's family has spearheaded this legislation.


March 23, 2009

Nursing Homes, The Mentally Ill And Violence - As America Ages Problems Arise

In what is being reported as a Chicago example of a growing trend nationwide, a 77 year old man south-side nursing home resident was killed by his 50 year-old mentally ill roommate.  Over the past several years nursing homes have become common places to put mentally ill adults who have nowhere else to go.  The unfortunate problem is that most nursing home facilities are not staffed with care givers who have the appropriate skill sets necessary to deal with mentally ill, and often violent, patients.

Illinois ranks first nationwide in the number of mentally ill patients under the age of 65 who live in nursing or assisted care facilities.


When a nursing home assumes the care of an elderly or infirm patient they owe him or her the obligation to provide a safe and nurturing living environment.  We have seen an uptick in these types of cases in our own practice and are concerned that this is a growing trend that will effect Chicago's elderly as the projected elderly population in america grows over the next many years.

March 22, 2009

Department Of Dirty Tricks

corruption.jpgJessica Fargen reported in today's Boston Herald that a Boston Medical Malpractice defense attorney hired by one of the area's largest malpractice insurance companies advised a doctor that he could avoid being served with a summons in a major medical malpractice lawsuit if he left the country.

Dr. Eran Bar-Mer finished his fellowship at Beth-Israel Deaconess Medical Center and was travelling cross-country with the intention to emmigrate to Israel.  Allegedly his insurance company appointed lawyer advised him that he was "lucky" to be leaving the country and the jurisdiction of the court.  He was ultimately served with the lawsuit when he returned to Boston on business two months later.


Legal proceedings are adversarial in nature.  Most lawyers believe in punching hard but punching fair.  When a member of the bar advises a defendant whom he represents to leave the jurisdiction of the court to avoid service things have gone a little too far.  Hopefully this lawyer has simply lost his way.  It is sad when the greed and corruption that has become pervasive in corporate america taints the legal profession.



March 21, 2009

What Are The Measure Of Damages In A Medical Malpractice Case?

Our clients often ask us about damages in medical malpractice cases.  Sometimes they tell us that they aren't interested in financial compensation and only want to do something to make sure that their doctor doesnt hurt anybody else.

The remedy in civil medical malpractice is financial.  When we proceed with a medical malpractice lawsuit we go to court seeking money damages.  What those damages will be is ultimately a decision that will be made by a jury after being presented with evidence of both economic and pecuniary loss. 

Some of our clients are happy to learn that each and every malpractice claim is reported to a national databank which is more or less a doctor's permanent record.  Additionally, the Illinois Department of Professional Responsibility investigates every malpractice claim that goes to verdict or settles to determine if the doctor's license ought to be affected.

March 20, 2009

Arizona Jury Awards Record Damages

We like to take note of outstanding verdicts and settlements from around the country on our blog.  Today an Arizona jury awarded $11 million to the widow of a 36 year old victim of a traumatic brain injury that occured at an assisted living facility.

While a resident at the facility his caregivers force fed him plastic bags, catsup packets, paper towels and candy wrappers which caused an obstruction of his GI tract.  These foreign body obstructions directly caused the patients death.

Every patient at every facility deserves to be cared for in a humane and dignified way. 


March 19, 2009

Richardson Death Sheds Light On The Reality Of Brain Injuries



Yesterday 45 year-old actress Natasha Richardson died tragically after she sustained a brain injury in what has been reported as a minor fall on a Quebec ski slope.  It has been reported in some media outlets that her brain become swollen after she sustained a shearing injury caused by whiplash type forces during her fall down.

While her autopsy has not been made public and we have no direct knowledge of the facts surrounding her death, the fact that what at first seemed to be a relatively minor injury resulted in tragedy is not an unfamiliar circumstance.  We have represented many brain injured clients who have suffered their injuries as a result of what at first seemed like mundane every day trauma.

In 2005 Goldberg & Goldberg hired a world renowned expert on vestibular function to measure shearing forces on the brain and theorize on how they translate to brain injuries..  Our expert's reseach compared the relatively mundane forces that the brain experiences daily during activities of normal living to excessive forces on the brain that occur in activities like roller coaster riding or piloting a jet fighter.  What we learned was extraordinary.  Force on the brain cannot be measured on a linear axis.  The head and brain moves rotationally on a 360 degress plane.  The body cannot compensate for some of these more unusual head movements that at first glance seem ordinary.  As a result tremendous shearing forces can injury the brain.  This research has really helped us learn and understand the mechanisms of head injuries. 


March 18, 2009

The Jury On Facebook

There is little doubt that technology has changed the way we communicate with each other. In the past several years social networking websites like Facebook and Twitter have allowed ordinary citizens to connect with one another in extraordinary ways. Trial Lawyers have always been concerned with influence outside information might have on jurors who are actively deliberating important matters in trial courts. At the intersection of the courtroom and technology we are confronted with an Interesting phenomenon. Facebook musings and tweets are now coming to you straight from inside the jury room. In Philadelphia a juror on a major capitol murder case announced to Facebook that everyone "should stay tuned for a big announcement" before a verdict was announced in a trial that lasted more then five months. This is not an isolated incident. Apparently people are tweeting and facebooking live from the courthouse everyday. Technology is a part of everyone's life. People feel compelled to share the most intimate details of their personal lives with people they hardly know over the internet. It should come as no suprise that jurors are sharing the details of the courtroom online. The question for judges and lawyers is how do we deal with this. We live in interesting times.
March 18, 2009

Obama Names New 7th Circuit Judge

President Obama has nominated Indiana judge, David F. Hamilton, to an opening on the Seventh Circuit Court of Appeals in Chicago.  This is our new presidents first appointment to the bench.  Hamilton is currently a federal district judge in Indianapolis. He previously served as counsel to U.S. Sen. Evan Bayh (D-Ind.) when Bayh was governor of Indiana.

The 7th Circuit Court of Appeals is the federal appellate court that has jurisdiction over appeals of matters that occur in the federal courts of Illinois, Indiana and Wisconsin.  The court is located in The Everett Dirkson Federal Building and is composed of eleven judges.  The current Chief Judge is Frank H. Easterbrook who was appointed by Pres. Ronald Reagan.

Hamilton's nomination was praised by consumer advocates.  "David Hamilton is an ideal choice for this seat," said Kathryn Kolbert, president of People for the American Way. "Throughout his career, he has demonstrated a willingness to put principle ahead of politics and bring an open mind to every case."

March 17, 2009

Chicago Medical Malpractice - Wrongful Death Damages

Survivors of a victim of a wrongful death that occured before May 31, 2007 in Illinois were limited under the Illinois Wrongful Death Act to recover only pecuniary loses completely discounting the survivors grief from consideration.  Pecunary loss includes the loss of benefit of the decedent's love, affection, care, attention, companionship, guidance and protection.  Now an amendment to the act allows the recovery of grief, sorrow and mental suffering of the survivors of a wrongful death.

Grief, sorrow and mental suffering have long been recognized in medicine as scientifically based components of the anguish associated with the loss of a loved one.  The law now more accurately reflects the actual loses sustained by the survivors of a wrongful death.

March 16, 2009

Kentucky Jury Awards $2.5 Million

A Kentucky jury awarded a married couple $2.5 million dollars when their medical malpractice lawsuit went to verdict last week.

In 2001, Sophia Savage underwent a hysterectomy at a Kentucky hospital.  During the surgery her doctors left behind a sponge which was not discovered until 2005.  Doctors discovered the sponge after she complained of pain.

The sponge lodged itself in her lower intestine, requiring her surgeon to remove 49 centimeters of her bowel when the sponge was removed. 

A jury awarded Savage $1.9 million for pain and suffering and $65,968 for medical expenses. Her husband was awarded $500,000 for loss of love, affection and services.

For over 40 years Goldberg & Goldberg has been working hard to protect the rights of the victims of medical malpractice and other negligence in Chicago, throughout Illinois and nationwide.  If you wish to discuss a medical malpractice or other matter with one of our lawyers, please contact us at               800-368-0255       .  Your initial consultation is absolutely free. 


March 6, 2009

Doctors Silencing Patients: Is This A Disturbing New Trend?

Websites like Angie's List offer online reviews on all types of service providers, including doctors.  It is undeniable that the internet provides a broad forum for public discussion, good and bad, that is very powerful.  If a search engine like Google gets a hold of negative information, even if it is untrue, it is next to impossible to have that information removed from the internet.  Nevertheless, the internet has made individual consumers a powerful force in the marketplace, through the power of the keyboard and mouse.

Doctors, concerned about the adverse effect of negative online publicity, have now taken to the practice of requiring patients to sign agreements not to post online performance reviews of their physicians.  An online company owned by physicians is charging doctors $1500 to learn how to implement this strategy into their practice.

Why the Taliban-style approach to information management?  Doctors are panicked by the prosepect of litigation.  Are these Draconian attempts to stifle free speech even enforceable?  Doubtful, but still unresolved.  Luckily, we still have the something called the First Ammendment. 

March 5, 2009

Further Evidence That Tort Reform Does Not Work

Here in Illinois the legislature passed the Medical Malpractice Reform Act of 2005.  The MMRA caps damages and contains other relief that benefits nobody but the state's insurance companies.

In neighboring Indiana they have tort reform also.  Claimants are required to present their cases to a medical review board composed of "independent" doctors.  These doctors pass judgement on the merits of a case before a plaintiff can file suit.  The cost in terms of time and money is an onerous one for litigants who have been legitimately injured by a physician or hospital.

Case in point, the estate of an Indiana woman received an award from an Indiana Malpractice review panel that has taken almost 5 years to reach a decision in his case.  The matter involves Indiana doctor Mark Weinberger who gained noteriety several years ago when he fled the country to avoid his creditors and malpractice claims.  The victory is bittersweet in that Indiana law has allowed bankers to get to Dr. Mark Weinberger's assets before his patient, who will now have to wage another legal battle in hope of receiving a judgment capped by tort reform laws at $1.25 million.

This is just another example of how devastating tort reform laws can be to a consumer who is the legitimate victim of a doctor's negligence. 

March 2, 2009

Saying Sorry


SayingSorryTLW_Mar28_p7.jpgOften times when we meet with new clients in our Chicago office they tell us that they are most upset about the fact that no one has ever said they are sorry after a tragic event occurs.  Lawyers and insurance companies have for years advised their doctor clients to deny and defend.  The rationale behind this behavior is an attempt to foil these patients from filing claims or costly lawsuits.  This behavior is contrary to what most of us learn at an early age, taking responsibility for ones actions and showing empathy is better than running away from the truth.

Malcolm Gladstone in his book Blink acknowledged this behavior and cited an interesting study that showed that when a doctor apologized for a mistake his patients were less likely to pursue legal action.  Gladstone makes a very important point. People just dont sue doctors that they like.  He cites work by medical researcher Wendy Levinson who recorded hundreds of conversations between a group of physicians and their patients. Roughly half of the doctors had never been sued. The other half had been sued at least twice, and Levinson found that just on the basis of those conversations, she could find clear differences between the two groups. The surgeons who had never been sued spent more than three minutes longer with each patient than those who had been sued did (18.3 minutes versus 15 minutes). They were more likely to make "orienting" comments, such as "First I'll examine you, and then we will talk the problem over" or "I will leave time for your questions"--which help patients get a sense of what the visit is supposed to accomplish and when they ought to ask questions. They were more likely to engage in active listening, saying such things as "Go on, tell me more about that," and they were far more likely to laugh and be funny during the visit. Interestingly, there was no difference in the amount or quality of information they gave their patients; they didn't provide more details about medication or the patient's condition. The difference was entirely in how they talked to their patients.

Thirty-five states have passed laws making expressions of apology within the first month-or-so after an incident occurs inadmissable in a civil lawsuit for malpractice.  With apology legislation mistakes have now become teaching opportunities as opposed to adversarial situations.  This allows patients to understand the situation, find answers and assure that justice is served.

March 2, 2009

The Malpractice Crisis

As Chicago Medical Malpractice trial lawyers we are often confronted by people that cite the Medical Malpractice crisis in Chicago, Illinois and nationwide as the primary reason for escalating health care costs.  People believe that medical malpractice lawsuits have resulted in escalating health insurance premiums due to an increase in lawsuit payouts by doctors and their insurance companies.  This is a fiction advanced by Illinois insurance companies in the hopes of generating support for self serving caps on damages awards that do nothing except help protect profits for big business.

The truth behind the facts cited by the insurance industry and physicians is startling when the facts are actually exposed.  Medical Malpractice claims in Chicago and throughout Illinois have been decreasing over the past five years.  According to public data filed by ISMIE, the states largest malpractice insurer, In 2004, ISMIE paid 10 percent less in total claims than it did in 2003. The average amount ISMIE paid on a claim in 2004 was 20 percent less than in 2003 and less than the average amount in 2002.  In 2004, the difference between the amount of premium dollars taken in and the amount paid out in claims was about $270 million.  That means Illinois Physicians paid the insurance company $270 million dollars more in 2004 that was necessary to cover claims expenses.  Even counting ISMIE's overhead and other expenses that amount equals a staggering profit for the insurance company.

Caps on damages, the remedy contained in the Medical Malpractice Reform Act of 2005, are championed by supporters as the way to lower doctor's premiums and return these savings to the patient.  This has not been the case in other states where this type of tort reform legislation has been the law.  California is the best proof of why caps on damages don't lower premiums, while insurance reform does. In 1986, after a decade of caps on damages, California was once again mired in an insurance crisis, with medical malpractice premiums rising at a rate of 26 percent annually. Malpractice premiums increased 120% during the first 12 years after the enactment of the MICRA cap.  Proposition 103, a ballot initiative passed by California voters in 1988, enacted the strongest insurance rate regulation in the nation. This law resulted in a rate freeze, a rate rollback, allowed doctors and consumer groups to appeal rate approval and enacted stringent regulation that reduced premiums in all lines of insurance.
Even if caps did lower premiums, ISMIE has said that a cap on damages would at best lower premiums 20 percent several years from now. But reducing the premiums 20 percent would not even reduce them to the level they were in 2002 before the huge rate increase in 2003 that supposedly caused the "crisis."

If medical malpractice awards are not the cause of the medical malpractice crisis then what is the cause?  Illinois' insurance companies should look at their own business practices for these answers.  That is why insurance regulation is the answer.  A transparent insurance industry will protect the rights of both patient and doctor.