March 29, 2024

In the aftermath of Hurricane Katrina, negligence lawsuit arises

Tenet Healthcare Corporation is now part of a class-action suit—with a jury set to decide whether or not this corporation should be held accountable for the injuries and deaths at Memorial Medical Center in New Orleans.  The hospital was in desperate need for help after it was inundated with flood-water by Hurricane Katrina.  Memorial Medical Center, housed 1800 people during the storm, begged Tenet Healthcare Corporation for supplies and an airlift.  Email exchanges between Memorial Medical Center and Tenet Healthcare Corporation will be used in this lawsuit to show the desperate situation.  One email exposes the plea for help and the lack of reaction by the parent corporation.

The negligence suit, brought on behalf of the people that were at the hospital during the Hurricane, claims that insufficiencies in Memorial’s backup electrical system, along with failing to properly plan for patient care and evacuation resulted in personal injury and death.  After Hurricane Katrina, 45 bodies were discovered at Memorial, many more than other hospitals. In fact, doctors admitted that they had given patients drugs to hasten their deaths.  No criminal charges were brought against the doctors.  One civil claim of euthanasia was brought against a memorial doctor.  It was dismissed and is now being appealed.

Tenet and Memorial plan to argue the city’s failed levees, the huge hurricane and poor government response created the deadly environment.  However, Memorial may have had notice to make changes long before Hurricane Katrina; Memorial did not take a recommendation given in 2004 to move components of its electrical system above the bottom floor.  Memorial’s air conditioning shut down, first, by design, as the hospital emergency power system is not required to support air conditioning or heating.  Once the air conditioning shut off, the temperature in Memorial rose to over 100 degrees.  The increase in temperature created unlivable conditions and this caused numerous deaths, especially in elderly patients.

 

Misdiagnosis Results in Death

In Estate of Michael Hamilton v. Excel Emergency Care LLC, et al., No. 07 L 006654, the jury returned a $3.76 million verdict in favor of the plaintiff.  The plaintiff’s father died of an aortic dissection—after being diagnosed of abdominal pain, and an emergency room doctor sent him home after it being resolved.  A supervisor at a paint factory, he was sent to St. James Hospital emergency room in Chicago Heights after his co-workers reported his severe chest pains and was treated by Dr. Jose Almeida.

The deceased’s chest pains started while he was working at Behr Process Corp. and he was even seen lying down in severe pain, sweating profusely, crying and dizzy.  The pain started in his chest and then went to his back.

The way his pain occurred is a classic example of aortic dissection–moving pain, from his chest, to the stomach and then into his back.  Aortic dissection involves bleeding along the wall of the aorta, and bleeding into this major artery, which carries blood out of the heart.  One attorney described it, “[i]f you picture a garden hose, it’s the inner layer of the outer wall [of the aorta] that’s tearing … and once it bursts, then it’s sudden death.”  The most pain is the initial tearing and then the pain can stabilize for a while, days or weeks, but it does eventually kill the individual. He also stated that if you get to it before the aorta bursts—the patient can be saved.

Plaintiff’s counsel argued that the doctor should have asked the patient how he experienced his pain instead of focusing on the type of pain he was experiencing when he finally entered the emergency room.  Dr. Almeida did not take an adequate history.  The location of the pain, the character of the pain, the symptoms or the severity of the pain should have put the doctor on notice that he was suffering an aortic dissection.  A CT scan and surgery would have saved his life.  But instead, he was sent home, told to drink liquids, rest and follow up with a doctor.  He died six days later.  The defense attorneys argued that the doctor treated him with the patient based on his symptoms and told him to follow up with a doctor in twenty-four hours.  The jury found in favor on the plaintiff.

 

Lower Back Injuries & Workers’ Compensation

The plaintiff in The City of Chicago v. The Illinois Workers’ Compensation Commission worked as a laborer for the City of Chicago’s sewer department. While pushing a wheelbarrow full of bricks in August 2002 he injured his lower back. After being diagnosed with a herniated disk at L4-L5, he underwent physical therapy and two microdisectomies. By July 2003, he had returned to work but still experienced daily pain and muscle spasms in his legs.

While his workers’ compensation was pending, a trench collapsed on him in May 2004. He then received steroid injections to treat nerve damage at L5. He was reassigned when he returned to work in May 2005, and his hourly pay rate was reduced from $29 to $17.

The plaintiff’s claims were consolidated and he was awarded permanent partial disability benefits (equal to 20% loss) for the first injury and then received $388 a week based on wage differential determination for the second injury. Because the city failed to pay a wage differential benefit from May 2005 to March 2006, the arbitrator awarded him penalties and attorney fees, stating that this delay was “vexatious” and “unreasonable”. The employer appealed to the IWCC—who affirmed the decisions—and then asked for review in the Cook County Circuit Court, which confirmed the decision.

Raising three issues, the city appealed to the appellate court (The City of Chicago v. The Illinois Workers’ Compensation Commission, No. 1-09-2320WC.):

  1. Whether the commission erred in awarding benefits pursuant both to Section 8(d)(2) and Section 8(d)(1) for the same condition of ill-being;
  2. Whether the commission erred in awarding medical expenses; and
  3. Whether the commission erred in awarding penalties and attorney fees for unreasonable delay in the payment of benefits.

The city contended that the plaintiff’s injury was the same condition of ill-being even though it was based on two separate incidents. The court noted “one very significant detail … at the time of the hearing, the first injury had not resolved itself and clearly was a factor when the claimant suffered the second injury.”

The Appellate Court determined that even though the claimant had suffered two injuries, the evidence showed only once condition of ill-being—and vacated the award of 20 percent loss of the person as a whole.

Workers’ Compensation

The plaintiff/claimant in Robert Baumgardner v. Illinois Workers’ Compensation Commission, et al., injured his knee on April 8, 1996 while working for Cook County.  He was diagnosed with a torn lateral meniscus and underwent surgery.  He returned to work in October 1996 and then six months later, in April 1997, the plaintiff injured his knee again, once at home and again later that month while working.  He returned to work in May 1997, with doctor’s instructions to wear a knee brace.  His physician then restricted the plaintiff to avoid working on inclines or ditches.  The county did not accommodate the restriction and a year later, he repeatedly fell three separate times.  The County finally reassigned him to a light duty position and he received a wage differential.  In 2002, the plaintiff had to have knee replacement surgery.

The plaintiff went to a consolidated arbitration for the three separate incidents—asking each side to propose a decision.  The arbitrator awarded him 53 weeks of temporary total disability benefits based on the 1996 injury, and they awarded him an additional 53 weeks for the May 1998 injury.  The claimant was also awarded a wage differential for the duration of his disability.  Both parties asked for a review from the Illinois Workers Compensation Commission.  The IWCC affirmed the 1996 award and reduced the 1998 award to 13 weeks and 2/7th

“Because the claimant suffered multiple injuries to the same body part as a result of successive accidents and those claims were tried together,” the court wrote, “the commission properly evaluated the totality of the evidence as it related to the claimant’s overall condition of ill-being at the time of the hearing and entered a single award that encompassed the full extent of the disability resulting from both the April 1996 and the May 1998 injuries.” See Robert Baumgardner v. Illinois Workers’ Compensation Commission, et al., No. 1-10-0727WC

Doctor on the run. . .

Weinberger disappeared while on vacation in Greece in 2004, as the accusations against him mounted. He became the subject of an international dragnet and authorities eventually tracked him down as he camped on an Italian mountainside in December 2009.

Dr. Mark Weinberger was on the run for five years after failing to correctly diagnose a female patient and being accused of health care fraud. He did not diagnose her with lung cancer and she died in 2004. Weinberger subsequently went on vacation to Greece in 2004 where he disappeared. Both Weinberger and a physician’s assistant were sued for negligence, which resulted in the patient’s death.

The claim is that Weinberger and his physician’s assistant did not comply with the standard of care required when treating a patient. Prior to trial, a state medical review panel unanimously determined the same. The victim’s attorney argues that her lung cancer was foreseeable and preventable.

At the same time, Weinberger is also being sentenced on 22 counts of health-care fraud. He billed two-dozen patients’ insurance companies for surgical procedures that never took place. Weinberger used this money to finance a Chicago condominium, daily limo rides to his office and a yacht. Not only did he bill insurance companies for surgeries that didn’t take place, but he also performed unnecessary surgeries on his patients.

Weinberger performed one of these unnecessary surgeries on the patient in this case—a sinus surgery. Testimony from Dr. Dennis Han, an otolaryngologist testified at trial that Weinberger was “more than qualified to pick up on this cancer on the first visit.” The defense attorney argued that Weinberger only recommended surgery for the patient after giving her antibiotics, which were not successful.

Facing a federal lawsuit filed by his malpractice insurance provider, along with more than 350 state medical malpractice suits, Weinberger sits in jail while this trial takes place. The insurance provider alleges Weinberger breached his contract by becoming an international fugitive. Once the breach occurred, Weinberger became liable for the hundreds of malpractice cases.

Control on a Construction Site

A construction manager was found not liable, by the Circuit Court, for conditions that led to the plaintiff’s injuries while working at a construction site. The Illinois Appellate Court affirmed the ruling by Judge Marcia Maras.

The plaintiff brought a lawsuit against Turner Construction Co., after he was injured while working on a construction site. The Circuit Court of Cook County found in favor of the plaintiff’s Motion for Summary Judgment and the plaintiff appealed.

Turner was hired as the construction manager for the new high school campus for Grayslake Community High School District 127. The school hired Waukegan Steel, as a trade contractor for the project, who then subcontracted its work to Linden Erectors. The plaintiff worked for Linden Erectors.

In 2003, the plaintiff was working on the construction site and while trying to unravel a large steel cable, using a motorized lift, was injured. The cable he was guiding caused him to fall to the ground and land on his hands and knees. He got up and continued working—keeping his schedule for two months.

In 2005, the plaintiff sued Turner, Linden, and others for a cervical spine injury resulting from incident.

Turner was named by the plaintiff because it, “exercised significant operational and/or supervisor control over the trade contractors, particularly with respect to safety, but also as to details of construction means and methods.”

Plaintiff argued that under Section 414 of the Restatement (Second) of Torts, Turner’s control is an issue of material fact and also a factor in determining liability. The Appellate court explained that under Section 414 control, alone, does not trigger liability. Instead, Section 414, only applies when the defendant entrusts work to another, while maintaining control over some other part of the work.

Waukegan Steel was an independent contractor and had no relationship with Turner. Turner did not have anything to do with the selection of Linden; therefore Section 414 is inapplicable. Also, plaintiff made an argument under Restatement (second) of Torts section 343, which says that a land possessor is subject to liability when persons on his land are physically harmed. This argument failed as well, because Turner t was not in legal possession of the site. Read the full text, available at, Lawrence O’Connell v. Turner Construction Company, No. 1-09-3442.

Migraine or Stroke? –Leads to Settlement

On April 5, 2004, the plaintiff’s wife, a nurse, went to Advocate Lutheran General Hospital with symptoms ranging from weakness, hearing loss, and loss of balance. Dr. Alan Kumar of Advocate Lutheran General Hospital treated the victim in the ER. The plaintiff, the victim’s husband, claimed in Richard R. Sperl Jr., etc. v. Advocate Health and Hospitals Corp., et al., No 09 L 012104, that Dr. Kumar improperly diagnosed her with a migraine headache, when he should have realized that she suffered a transient ischemic attack (precursor to a stroke). Five days later the victim returned to the emergency room with very similar complaints. She stated she had imbalance, dizziness, weakness in her left arm and facial droop. She was immediately admitted into the hospital where she suffered a severe stroke and died on April 15, 2004.

The plaintiff’s complaint alleged that the defendants were negligent in the treatment of his wife. Mainly, that they failed to properly evaluate her despite signs of a potentially life-threatening neurological condition. Also, the defendants did not suggest that she undergo a neurological evaluation. Plaintiff’s counsel argued that if Dr. Kumar had properly referred the victim to a neurologist, her cardiomyopathy would have been discovered. Cardiomyopathy is a serious condition involving an enlarged and seriously damaged heart. Cardiomyopathy is difficult to diagnose and has resulted in the deaths of even young, otherwise healthy athletes. There are often no symptoms or signs prior to the individual suffering a massive stroke.

Because of the inexactness of diagnosing cardiomyopathy, and the likelihood that even if the cardiomyopathy had been diagnosed, the victim’s life expectancy would have been diminished, the parties settled the matter for $3 million. Lutheran General Hospital paid $250,000 and Dr. Kumar paid $2.75 million toward the settlement.

Attorney Loses Fee in Settlement

In July of 2008 the plaintiff’s son was killed in a car accident.  The victim’s parents settled for $100,000, the other driver’s insurance company policy limit.  Five months after the incident, the victim’s girlfriend gave birth to a girl and a DNA test proved that the victim was the father.   The Judge awarded $27,426 to the victim’s parents and $13,041 for reimbursement of funeral expenses.  The attorney for the parents received $22,222. The newborn child was awarded $27,426. The child’s mother appealed the award, claiming that the child is the only “next of kin” and the parents of the victim should not get any money.  She also argued that the attorney fee was improper and that the parents should not have received a funeral reimbursement.

The appellate court agreed with the baby’s mother.  Following the Illinois wrongful death act, the victim’s only surviving next of kin, was the child. The panel stated that the parents’ share, funeral reimbursement and settlement payment, be given to the child ($40,467).  The appeals panel also stated that the parents’ attorney should not have argued that the parents were entitled to money once she was aware of the child.  The child was awarded the $22,222 attorney fee and $760 in legal expenses.  The panel did not accept the mother’s request that her attorney should be awarded $8,200 in fees and an additional $920 in costs.

The attorney for the parents felt that the trial court was in the best position to award the money, and she claims that the victim supported his parents and they were dependent upon him financially.  She feels that the law should be changed to factor in these types of situations. The full text of the case is available at, Judith Baez, etc. v. Garrett Rosenberg, etc., No. 1-10-0090.

 

When and How to Commence Arbitration in an Uninsured or Underinsured Motorist Claim

In a perfect world, every defendant to an automobile injury claim would have deep pockets and a generous automobile insurer. Sadly, this isn’t the case, so what to do when you were, say, hit by a car when the negligent driver was not insured? Or what if the driver simply hit your car and drove away? In these scenarios, a person injured in an automobile accident will often seek reimbursement from their own insurance company, with what is known as “uninsured” or “underinsured motorist benefits.” Often times, an attorney will demand such payment by letter. In that case, it is important to know when and how to notify your insurer of such a claim.

The 1st District Appellate Court was recently confronted with the question of what actions a claimant must take against to commence arbitration, in Rein v. State Farm, 407 Ill.App.3d 969 (1st Dist. 2011). In this case, the plaintiff was injured in a hit and run accident. Because the driver was never identified, the plaintiff sought recovery in the manner described above from her own insurer, State Farm. The plaintiff’s attorney sent a letter notifying State Farm of her claim for uninsured motorist benefits nearly two years after the accident. The letter stated, in part, “You are hereby notified that it is our intention to pursue an Uninsured/Underinsured Motorist Claim against State Farm Insurance under the above-captioned policy…”

The applicable policy required that any arbitration or suit seeking such benefits would be barred unless it commenced within two years of the date of accident. It also stated that, if the claimant requested arbitration, it must select an arbitrator as well. However, the policy wasn’t clear as to whether a mere letter was sufficient to “commence arbitration or suit.”

The lower court ruled that it was not and dismissed plaintiff’s action and found that the “claim notice” letter sent by plaintiff’s attorney was insufficient to “commence arbitration,” as required by the applicable policy. The decision was affirmed on appeal, although the 5th District reached a different conclusion under similar circumstances. Had the 1st District been free to apply similar logic, the plaintiff may have succeeded in her claim. However, the legal principle of stare decisis binds each circuit court to the decisions and precedents within its own district.

This outcome only underscores the importance of abiding by statutes of limitations and other claim deadlines, which will certainly be upheld in court. The deadline itself may depend on your particular insurance policy. Avoid the risk of missing such deadlines by consulting with an attorney immediately after you have suffered an injury.

Negligence Suit Goes Beyond the Hospital

In Smith v. West Suburban Medical Center, et al, a patient fell off a stool in an x-ray room. Filed in 2006, the negligence suit also named Triton College [Triton] and a Triton student who was assisting the patient.

West Suburban brought a counterclaim against Triton arguing that the clinical agreement it had with the hospital indemnified them if a student’s actions led to a lawsuit against the hospital. The hospital sought summary judgment on the issue, and Triton argued that summary judgment wasn’t proper because the lawsuit named the student as an “apparent agent” and that was a question of material fact. Triton contended the other issue of material fact was whether or not the hospital maintained the x-ray room in a safe manner.

Cook County Circuit Judge Lynn M. Egan granted summary judgment in favor of the hospital. In doing so, Judge Egan determined that there was no issue of material fact. When there is no issue of material fact, the only question is how to apply the law to those specific facts. In this case, Judge Egan determined that the applicable law meant that Triton agreed to indemnify the hospital. Triton appealed the decision, but the First District Appellate Court affirmed the lower court’s decision, noting that the agreement clearly states that Triton will indemnify West Suburban for claims arising out of activities of its students. Triton College will be defending this lawsuit.

Clearly, this case shows that colleges are much more susceptible to litigation arising from their clinical students than one may have realized. The case is silent as to the language in the Agreement regarding the Hospital’s duty to supervise the student. We’ll just have to watch future trends in litigation to see if hospitals continue to pass on lawsuits to colleges based on language in clinical agreements.