Failure to Diagnose

Published on: April 14, 2009

Damages Extended By The Illinois Appellate Court In Wrongful Birth Lawsuits

The Illinois Appellate Court, First District has extended damages in Wrongful Birth lawsuits to include the damages the victim will sustain after reaching the age of majority. This is a significant extension beyond the victim’s usual rights in these types of cases which were first recognized in Illinois in Siemieniec v. Lutheran General Hospital, 117 Ill.2d 230 (1987).

Now parents of severely disabled children who were born with disabilities due to the negligence of a doctor who failed to recognize the same in utero can recover damages necessary to care for their disabled child after that child reaches the age of majority. The court stated that from a public policy perspective the financial burden of this type of care should be borne by the tortfeasor and not the state or the chilld’s parents. Additionally, it now appears that the law in Illinois might recognize damages for the negligent infliction of emotional distress.

Justice O’Brien wrote “that such claims are judged by the ”zone-of-physical danger” rule set in Rickey v. Chicago Transit Authority, 98 Ill.2d 546 (1983), which provides that before someone can recover for emotional injuries stemming from the tortious injury of a third person, they must show that they were endangered by the defendants’ negligence and suffered a physical injury because of it” Clark v. Children’s Mem. Hosp., 1-08-0610 (Ill.App. 4-9-2009)

Published on: April 5, 2009

Medical Malpractice Settlement Marathon

By Ian R. Alexander

The Nevada Supreme Court has ordered litigants in medical malpractice cases to take steps to resolve those matters in order to decrease the court’s backlog. Two senior judges have been assigned in Clark County to conduct a settlement marathon in May in the hopes of resolving the 216 oldest cases on the court’s docket. The Judges plan to hold up to eighteen settlement conferences a week.

Apparently Clark County, Nevada, home to Las Vegas, has more then 400 medical malpractice cases pending statewide. This number seems relatively small in comparison to the number of cases we have pending in Cook County, Illinois.

Published on: March 31, 2009

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

By Ian R. Alexander

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.

Published on: March 30, 2009

20 Tips To Help Prevent Medical Mistakes

By Ian R. Alexander

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.

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Published on: March 30, 2009

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

By Ian R. Alexander

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.jpg Comedian 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.

Published on: March 26, 2009

Medical Malpractice In The Military

By Ian R. Alexander

Should 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.

Published on: March 21, 2009

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

By Ian R. Alexander

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.

Published on: March 16, 2009

Kentucky Jury Awards $2.5 Million

By Ian R. Alexander

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.

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Published on: March 2, 2009

Saying Sorry

By Goldberg & Goldberg

Often 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.

Published on: February 27, 2009

Big Pharma Conceals Connection Between Seroquel and Diabetes

By Goldberg & Goldberg

Bloomberg News is reporting that drug maker, AstraZeneca has concealed unfavorable studies linking the prescription drug Seroquel to Diabetes. Emails turned over as part of litigation related to the drug Seroquel have revealed that AstraZeneca “buried” studies with bad outcomes.

More than 15,000 people have filed lawsuits claiming the drug maker failed to warn its users of the connection between the antipsychotic drug and diabetes. These lawsuits also claim that AstraZeneca promoted off label uses for the drug beyond the purpose for which the drug was approved by the FDA.

The first Seroquel trial is set to begin in April in Deleware state court.