March 28, 2024

Medical Malpractice Procedural Rules Must Be Followed

In medical malpractice cases, failing to provide a certification can be fatal to  the case.  735 ILCS 2-622 requires an affidavit and written report to initiate a medical malpractice lawsuit.  The plaintiff was representing himself and had not been able to comply with the statute.  Mainly, when filing a medical malpractice case, the plaintiff must file not only an affidavit, but a written report with the complaint.

Section 2-622 requires the plaintiff’s attorney (or the plaintiff, if pro se) to file an affidavit declaring the following: 1) that the affiant has consulted with a knowledgeable medical professional specifically in the relevant issues in the claim, within 5 years in the same area of health care or medicine has practiced or taught the issue in the particular action, and meets the standards required set forth in section 8-2501; and 2) that the medical expert has reviewed and determined that the medical records support a “reasonable and meritorious cause for filing of such action” and reduced this belief to a written report and that the affiant has concluded based on the health professional’s consultation and review that there is a not only a reasonable. But also a meritorious cause for filing the action;

The medical professional(s) written report, attached to the affidavit, must adhere to the following: 1) a report must be filed for each  defendant; 2) for hospitals, practice groups, etc, the report must be from a doctor who is qualified to state/testify about the standard of care in the case; 3) for individual medical professional, the written report must be from another medical professional that is licensed in the same profession, and within the same class of licensure, as the individual defendant; 4) must identify the “reasons for the reviewing health professional’s determination that a reasonable and meritorious cause for the filing of the action exists”; and 5) must identify the reviewing doctor’s profession, name, address, license number and state of licensure.

If the plaintiff’s attorney, within the two-year statute of limitations period, cannot secure an affidavit from a doctor, the attorney must file an affidavit.  The affidavit must state that the affiant could not seek consultation from a medical professional prior to the expiration of the statute of limitations—thus, the statute of limitations would impair the action.  The Judge will grant the attorney a 90 day extension after filing of the complaint to file the affidavit and medical professional’s written report.

 

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.

 

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.

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.

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.

Medical Malpractice: Locality Rule

In a Medical Malpractice lawsuit it is incumbent upon the plaintiff to prove that the physician deviated from the necessary standard of care. However, that standard of care can be different depending on where the physician works. In many states, including Illinois, the “locality rule” reigns supreme. Originally designed to protect the physician working in rural areas, the locality rule compares a defendant physician’s conduct against the recognized practices and customs of that locality or similar localities. At the time, he impetus for the locality rule was the fact that a rural physician had less education and less access to proper equipment, etc. It was seen as unfair to compare their conduct to a physician practicing in urban areas.

In Illinois, experts are required to testify as to the standard of care that should have been applied in that particular case. In past Illinois decisions, courts held that the testifying expert had to be a physician who was aware of that locality’s specific standards. However, reflecting advancements in technology, communication, and transportation, Illinois, as well as many other states, has modified the applicability of the locality rule. Although the locality rule is still prevalent in Illinois, especially in situations where there is inequality between medical facilities, the testifying expert often does not need to be aware of that locality’s particular standards. Today in Illinois, an expert may testify as to national standards that form the baseline minimum standards related to certain diagnosis, treatments, and procedures. However, with the advancements in technology and education it must be noted that in many situations the minimum national standards will be aligned with the locality’s standards.

Although in some situations it is still seen as unfair to judge a rural physician by the standards of an urban physician, many states have rejected the locality rule althogether. Illinois has modified its applicability, but it is still a relevant consideration in many medical malpractice suits.

Defining the Term “Licensed” for Section 2-622 Purposes

The Illinois Appellate Court recently upheld the dismissal of a medical malpractice complaint, with prejudice, against two Illinois-licensed podiatrists, pursuant to Section 2-622 (Illinois Code of Civil Procedure). Section 2-622 requires that a plaintiff, or plaintiff’s attorney, file an affidavit of merit, with a medical malpractice complaint, stating that the affiant has consulted and reviewed the facts of his case with a healthcare professional who, in a written medical report, has determined that there is a “reasonable and meritorious cause” for filing an action.

The decedent in Christmas v. Hugar died, two weeks after undergoing foot surgery performed by the defendant podiatrists. Ill.App.Ct., 1st Dist. (2nd Div. 2011). Her estate alleged medical malpractice that resulted in her death. The expert who supported the plaintiff’s medical malpractice claim was not licensed to practice podiatry in the State of Illinois when the suit was filed. He was, however, licensed to treat feet under his Wisconsin physician’s license. The expert witness had graduated as a doctor of podiatric medicine in 1986, and although he had been licensed to practice podiatry at one time, he had allowed his license to lapse, without renewal, in 1990.

Section 2-622 requires that the medical report be authored by a health-care professional licensed in the same profession as the accused healthcare professional. The majority in this case strictly interpreted the term “licensed,” within the context of a medical malpractice, to mean licensed in the same profession and same class as the defendant. The Court in Christmas held that the expert report was not a “mere technical error,” and warranted dismissal, with prejudice.

Unfortunately, the defective expert report in this case was only discovered several months prior to trial, after four years of litigation. Medical malpractice attorneys should take care to ensure that their Section 2-622 reports comply with all requirements, to avoid undesirable results down the road, after significant time and costs have already been expended. Attorneys must be especially cautious in choosing out of state expert witnesses, as it will be more difficult to qualify an out of state expert in a medical malpractice action in light of this recent ruling.

Using Section 2-622 Reports as a Prior Inconsistent Statement for Impeachment

In Iaccino v. Anderson, the Illinois Appellate Court recently held that a medical expert in a medical malpractice case can be impeached with the use of the physician’s Section 2-622 (Illinois Code of Civil Procedure) report as a prior inconsistent statement. 940 N.E.2d 742 (1st Dist. 2010). This issue was one of first impression.

Section 2-622(a)(1) requires that a plaintiff file an affidavit of merit, with the complaint, stating that the affiant has consulted and reviewed the facts of his case with a healthcare professional who, in a written medical report, has determined that there is a “reasonable and meritorious cause” for filing an action.

The plaintiffs in Iaccino brought suit against two doctors and a hospital for a brain injury suffered by their son, allegedly caused by oxygen deprivation during birth. The medical expert had provided the necessary report and testified as one of the plaintiff’s experts. In his report, the expert interpreted decelerations that he saw on a fetal monitor strip as “variable decelerations.” At trial, he testified on cross-examination that the same fetal monitor strip was “late deceleration” or “variable deceleration with a late component.” Defense counsel used the Section 2-622 report as a prior inconsistent statement for impeachment purposes, when plaintiff’s expert provided his contradictory testimony at trial.

On appeal, it was held that the impeachment was permissible, so long as a proper foundation was laid, and so long as the report’s content was materially consistent with the expert’s trial testimony. The appellate court stated, “Section 2-622 does not prevent … the author of such a report from qualifying his opinions to make clear that they are preliminary opinions subject to amendment or supplementation upon the acquisition of additional information such as additional medical records or deposition testimony.” It would, however, be up to the jury to assess the explanation and the credibility of the doctor’s testimony.

If a medical expert’s opinion as to cause of injury has changed after the Section 2-622 report was prepared, it is imperative that an attorney prepare the medical expert to explain this change of opinion in his testimony at trial.

Medical Malpractice: Lack of Communication Causes Great Harm

Imagine walking into a hospital for neck pain, and not walking out. Instead, your body has lost movement in both your upper and lower extremities. This nightmare became a reality for Francisco Contreras.

Contreras initially hurt his neck while working at a Walgreen’s store, when he was moving a printer from a shelf. The pain persisted for at least a year, including shooting pain down his arms. Approximately, a year after the initial injury, June 14, 2006, Contreras had cervical disk surgery at Thorek Memorial Hospital. Contreras was initially able to move his extremities, both upper and lower after the surgery. Within the hour though, Contreras’ condition had worsened and their were signs that he was losing motor functions. The loss of movement started in his legs and moved to his arms within seven hours after surgery. No one passed along the information that Contreras could not move his legs from June 14 at 11:45 a.m. til June 15 at 11:00 p.m.

There was a build up of blood on his spinal cord that had gone undiagnosed, despite Contreras having lost feeling in his extremities. When discovered, the neurosurgeon rushed him into surgery, but it was too late, and Contreras became a permanent quadriplegic. The lawsuit that ensued, Francisco Contreras and Sandra Contreras v. Thorek Memorial Hospital et al, resulted in a $18.75 million dollar settlement. Plaintiffs alleged that Francisco Contreras’ quadriplegia could have been avoided, if it had been communicated to the neurosurgeon earlier. Two different nurses noticed that he could not move his legs, but never verbally told the operating neurosurgeon or the anesthesiologist who was in the room at the time it was noted. The anesthesiologist discharged him to the ICU, even though it was noted Contreras couldn’t moved his legs. Again, he was seen by two nurses who both noticed Contreras couldn’t move his legs and was beginning to lose feeling in his arms, but neither advised a physician. Clearly, there was a continuous chain of non-communication

In this settlement, the hospital contributed $18 million dollars and Holistic Nursing, Inc, which employed an agency nurse, contributed $750,000.00. This settlement provides for the acquisition of various annuities to try to take of Contreras’ future needs.

Feres Doctrine Under Fire

Sixty years ago, the U.S. Supreme Court ruled that the federal government could not be held liable under the Federal Tort Claims Act (FTCA) for injuries to members of the armed forces arising from activities incident to military service. Feres v. United States, 340 U.S. 135 (1950). What is now known as the Feres Doctrine, remains in force today, despite numerous attempts to over-rule the decision.
The FTCA allows persons wronged by a government employee to sue the government for their injuries. In fashioning the Feres Doctrine, an exception to the government’s waiver of sovereign immunity under the FTCA, the Supreme Court reasoned that the government already had a no-fault statutory compensation plan for military personnel under the Veterans’ Benefit Act, and later noted that the doctrine was necessary to maintain and protect military discipline.

Long criticized as unfair to servicemen, the Feres Doctrine was challenged in two cases decided by the Supreme Court in 1987. In Johnson v. United States, 481 U.S. 681 (1987), the United States was sued for injuries sustained by a service member due to the negligence of air traffic controllers (federal government employees). On a 5–4 decision, the Court reaffirmed the application of the Feres Doctrine. The Supreme Court again refused to overturn the doctrine in Stanley v. United States, 483 U.S. 669 (1987).

The Feres Doctrine also extends to actions brought by servicemen for medical malpractice actions against military hospital personnel. This may very well be the doctrine’s undoing because the Supreme Court is currently deciding whether it will review a case brought by the widow of a now deceased military serviceman, Sergeant Dean Witt. Witt was hospitalized for appendicitis at a medical center at the Travis Air Force Base where he was stationed. Mrs. Witt alleges various acts of medical malpractice caused Witt to suffer severe brain damage. He was taken off of life support after spending three months in a vegetative state.

Bound by Supreme Court precedent, the wrongful death action was recently dismissed by a three-judge panel in the 9th Circuit Federal Court. If this case is heard and overturned by the Supreme Court, the federal government could find itself suddenly exposed to a significant number of liability claims. Although many are championing this case as the best opportunity in years to overturn the unpopular doctrine, there may be far reaching negative consequences for the federal government.