Chicago Medical Malpractice Attorney Blog

A jury has found that a skilled nursing home was negligent in choosing not to detect a dislocated right hip of one of its residents. One of the patients, P.G., 85, was admitted to the nursing home on a short-term basis following her right hip replacement surgery. P.G. was a fall risk, meaning she was noted in the records to be at greater risk of falling on scale. The practice of assessing nursing home resident's propensity for falling is standard practice and required.

About two weeks after admission to the skilled nursing unit, the resident's sister came to visit and noticed that her sister, P.G., was in pain and unable to bear weight on her leg. It was then that an X-ray showed P.G.'s dislocated right hip.

As a result, emergency surgery was required to remove P.G.'s hip prosthesis from her earlier hip replacement. P.G. was confined to a wheelchair for several months until she was able to undergo the revision surgery. Recovery has been slow, and P.G. has not been able to return to her home.

GlaxoSmithKline has settled with 38 state attorney generals for $90 million in connection with its unfair and deceptive promotion of a diabetes drug, Avandia. Illinois Attorney General Lisa Madigan and Oregon Attorney General Ellen Rosenblum led the way in the allegations that GlaxoSmithKline marketed its brand-name medication, Avandia, to treat Type 2 diabetes.

The attorney generals alleged that GlaxoSmithKline misrepresented the drug's safety or left out facts about its effects on cholesterol and cardiovascular health.

"Our investigation demonstrated that GlaxoSmithKline had little regard for the facts or for the health and safety of the patients it targeted with its misleading marketing," Illinois Attorney General Madigan stated.

More Yasmin birth control lawsuits have made their way through the court system against the manufacturer Bayer. According to a recent report, Bayer has settled many cases and paid a reported $402 million setting aside another $600 million for future settlements. Approximately 11,000 lawsuits have been filed in the federal multidistrict litigation consolidated in the Southern District of Illinois.

Some of the lawsuits brought by injured plaintiffs are for blood clots while others claimed gall bladder problems.

Bellwether trials, those cases found to be most meritorious, were scheduled to go to trial early in 2012. But the parties instead wanted to mediate cases resulting in settlements in at least some of them. Other settlements have been reached in blood clot lawsuits, but there have been no settlements of gall bladder claims.

In April 2012, the U.S. Food and Drug Administration (FDA) ordered Bayer to increase warnings on its Yaz and Yasmin products.

The warnings were required because some studies found there was three times the risk of blood clots in women who used Drospirenon-containing birth control.

Even though some cases have settled, it is still not too late for women who suffered health problems after using Yaz, Yasmin or Ocella to file lawsuits, providing the statute of limitations has not run out.

The core of the cases in litigation claim that Bayer chose not to properly test the contraceptives before putting them on the market and also chose not to warn the public or medical professionals about the risks associated with the use of Yaz and Yasmin by women. At the time, Bayer had produced television commercials that marketed Yaz and Yasmin as safer forms of birth control.

Kreisman Law Offices has been handling pharmaceutical injury cases, mass tort claims, personal injuries for individuals and families for more than 37 years, in and around Chicago, Cook County and its surrounding areas, including Harwood Heights, Chicago (Jefferson Park), Schiller Park, Brookfield, Chicago (Lincoln Park), Justice, Joliet, Alsip and Blue Island, Ill.

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70 Yaz and Yasmin Birth Control Drug Cases Settled

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Cook County commissioners voted Feb. 5, 2013, to pay $24 million in hospital malpractice settlements. Of that total, $20 million will be paid to the family of a boy who suffered brain damage after a heart attack following surgery at a Chicago hospital.

A lawsuit was filed against Stroger Hospital by the boy's mother, Justine Francique. Her son, Keith, underwent surgery for an undescended testicle in 2011. Following the operation, the boy suffered a heart attack, according to hospital records.

Unfortunately, nurses and doctors in attendance did not notice his condition and failed to start cardiopulmonary resuscitation. Five minutes after his heart stopped, they began the necessary lifesaving procedures, according to court documents.

William Herring, 59, had a history of severe coronary artery disease. Complaining of chest pain, Herring was seen by his internist, Wayne Blake, M.D. Herring said his chest pain was relieved by belching.

At the doctor's office, an electrocardiogram was done, which showed that Herring had normal rhythms. Dr. Blake prescribed a heartburn relief medicine and also recommended that Herring undergo a chemical stress test within the next month.

Less than four hours after leaving Dr. Blake's office, Herring suffered a severe irregular heartbeat episode and then a fatal cardiac arrest. He is survived by his wife and three children.

In June 2006, Josh Tunca was a surgeon at Northwest Community Hospital specializing in gynecologic oncology. While in surgery, Dr. Tunca removed an ovarian tumor. Later, the patient lost the pulse in her left leg due to a clog in her femoral artery.

Dr. Thomas Painter, a vascular surgeon, was called in to perform a femoral-bypass surgery to restore blood flow. According to the record, Dr. Painter approached Dr. John McGillan, the hospital's vice president and medical affairs director, telling him that Dr. Tunca had cut the patient's iliac artery.

Dr. Painter also told other doctors that Dr. Tunca had negligently severed the patient's artery. None of these doctors were on a peer review committee for the hospital.

The Illinois Supreme Court has decided an appeal as to whether or not res judicata in a refiled medical-malpractice complaint barred its refiling. In the underlying case, Brandon and Daphne Wilson claimed that Edward Hospital in Naperville, Ill., was liable for the negligence of doctors under the theory of actual and apparent agency.

The hospital was granted a summary judgment order on the actual-agent allegations and the Wilsons voluntarily dismissed their complaint, but refiled it within one year. Edward Hospital then moved to dismiss the case based on res judicata, which essentially means that the issue has already been finally adjudicated by the court.

Under the Supreme Court decision in Hudson v. City of Chicago, 228 Ill.2d 468 (2008) and Rein v. David A. Noyes & Co., 172 Ill.2d 325 (1996), res judicata bars a refiled lawsuit when:

A 36-year-old nurse was seen by the defendant obstetrician Larry Overcash, M.D. The physician was alleged to be negligent in performing a bilateral removal of both of Ms. Fief's ovaries. She had consented to removal of only one ovary. However, at the Peoria Day Surgery Center, both of the Fief's ovaries were removed by Dr. Overcash, who also perforated her colon during the surgery. The perforation of the colon led to several other hospitalizations and medical expenses in excess of $200,000.

The jury's verdict of $1.2 million against both Dr. Overcash and Woman's Health Institute, Ltd. was made up of the following damages:

• $1,050,000 on the negligence claim which included $300,000 for past and future pain and suffering;
• $500,000 for past and future loss of normal life;
• $250,000 for medical expenses; and
• $150,000 was for medical battery because of the wrongful surgery in removal of both ovaries plus $150,000 for pain and suffering from the removal of the unnecessary surgery removing the right ovary.

The U.S. Supreme Court is scheduled to hear arguments soon on whether a generic drug maker can be held responsible for a patient's injuries. The case is considered very important for pharmaceutical companies, federal regulators and patients who take generic drugs. Some experts estimate that generics make up 80 percent of all drugs taken by people in the United States.

The case before the high court will involve Mutual Pharmaceutical Co., which sold a drug called sulindac, an anti-inflammatory. This medication was given by a pharmacist to a patient named Karen Bartlett, who was suffering mild shoulder pain in 2004. Bartlett, who lives in New Hampshire, claims she began taking the drug and, only a few weeks later, suffered an intense reaction to it. Her skin began to peel off, she was forced to live in a burn unit in a nearby hospital and later was in a medically induced coma. She lost her vision and is now legally blind. Also, she alleges that the medication permanently damaged her lungs and esophagus.

Bartlett sued Mutual, saying the company should be liable for her injuries. She took her case to federal district court, where a jury awarded her $21 million. An appeals court upheld that verdict in 2010; now the case is headed for the high court.

More than 15,000 women die of ovarian cancer each year, which makes it the fifth leading cause of death among American women. A new study shows that 60 percent of the women who develop ovarian cancer do not receive the medical care they need that could prolong their lives. The Society of Gynecologic Oncology's (SGO) annual meeting on women's cancer presented the study March 11, 2013.

This research was conducted on more than 13,000 patients from 1999 through 2006. Researchers who conducted the study said the lack of proper care for the women patients was the result of inexperience among doctors and hospital staff.

Women with ovarian cancer should be treated by surgeons who see a lot of patients each year with the disease, researchers found. They also said the women should stay in hospitals where a high volume of women with ovarian cancer are treated once the disease is diagnosed.

A lawsuit was filed against Stroger Hospital by the boy’s mother, Justine Francique. Her son, Keith, underwent surgery for an undescended testicle in 2011. Following the operation, the boy suffered a heart attack, according to hospital records.

Because of oxygen deprivation, the boy experienced extensive brain injury. The large payout — $20 million — was required to make sure the victim will receive care for the rest of his life, according to court documents.

Also, in a vote taken Feb. 5, commissioners authorized a settlement of $2.4 million to Wendy Cash. Cash did not receive proper medical care during cancer treatment at Stroger Hospital in January 2008, according to a lawsuit. She was apparently suffering from an infection at the time. The infection grew due to a lack of proper care; Cash underwent several amputations and died two years after being admitted to the hospital, according to court documents.

The third case settled by commissioners will provide $1 million to the estate of Albert Allen. He suffered from an infection and did not receive proper care after an external fixator was attached to his arm. Allen had been at the county jail for nearly seven weeks in 2006, court documents said.

While in jail, he was treated by Cermak Health Services, which is a Cook County facility. Allen developed sepsis and was taken to Stroger Hospital, where he also failed to receive proper care, the lawsuit says.

A fourth case, which also involves Stroger Hospital, was settled for $625,000.
Kreisman Law Offices has been handling medical malpractice lawsuits for over 37 years, serving those areas in and around Cook County, including Schaumburg, Wilmette, Lisle, and Blue Island, Ill.
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At the doctor’s office, an electrocardiogram was done, which showed that Herring had normal rhythms. Dr. Blake prescribed a heartburn relief medicine and also recommended that Herring undergo a chemical stress test within the next month.

Less than four hours after leaving Dr. Blake’s office, Herring suffered a severe irregular heartbeat episode and then a fatal cardiac arrest. He is survived by his wife and three children.

The family filed suit against Dr. Blake, claiming that he should have referred Herring to the emergency room in order to rule out a deadly cardiac-related cause. It was contended in the lawsuit that had Herring been at the hospital at the time of the onset of the arrhythmia, that Herring would have been treated and would have survived.

The Illinois Supreme Court has ruled that in a medical negligence case, the patient is entitled to receive medical care that might increase the chance of survival, even if the chance for recovery is small. This is known as the “Lost Chance Doctrine.” A doctor or hospital can be found responsible for the injury or death of a patient in which a person has been deprived of a chance to survive or recover from a health problem due to the medical provider’s negligence, or where the medical provider’s negligence either lessened the effectiveness of plaintiff’s treatment or increased plaintiff’s risk of an unfavorable outcome.

This law is very important because it means that even the sick should be given the necessary health care in spite of an overlying illness. The court’s conclusion was that disallowing recovery in medical negligence cases on the basis that a patient was already too ill to survive would prevent the offering of quality medical care to critically ill patients. Holton v. Memorial Hospital, 176 Ill.2d 95 (1997). This Illinois law allowed the family to bring this action even though Herring had already suffered from a serious and dangerous medical condition.

The Herring family was represented in the lawsuit by attorneys Craig L. Manchik and Lynne Plum Duffey, both of Chicago.

William Herring v. Wayne Blake, M.D., 09 L 249 (Cook County, Illinois).
Kreisman Law Offices has been handling medical negligence cases and wrongful death matters for individuals and families for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Chicago (Rogers Park), Mount Prospect, Villa Park, Yorkfield, Elmhurst, Northlake, Glen Ellyn, Hickory Hills, Oak Lawn, Chicago (Stockyards), River Forest and Bedford Park, Ill.

Dr. Thomas Painter, a vascular surgeon, was called in to perform a femoral-bypass surgery to restore blood flow. According to the record, Dr. Painter approached Dr. John McGillan, the hospital’s vice president and medical affairs director, telling him that Dr. Tunca had cut the patient’s iliac artery.

Dr. Painter also told other doctors that Dr. Tunca had negligently severed the patient’s artery. None of these doctors were on a peer review committee for the hospital.

Dr. Tunca filed a lawsuit, which was amended three times, against Dr. Painter, alleging that his comments violated the confidentiality provisions of the Medical Studies Act. It was alleged that these statements injured Dr. Tunca’s professional reputation and cost him patients from referral sources, which led to a substantial loss of income.

Dr. Tunca also initially alleged that Dr. Painter’s comments were slander per se, but later changed that allegation to one of slander per quod. At first, the trial court dismissed the slander claims. But on appeal, that order was found to have sufficiently alleged slander per quod against Dr, Painter, but the other appealed claims were forfeited. Per quod defamation requires a plaintiff to prove actual and monetary damages. In a case where the defamation is per se, the proof of special damages are presumed. Per quod defamation alleges facts that make the claim not defamatory on its face and requires proof that such statements were in fact defamatory. In per se claims, the statements made are defamatory of their face. As an extreme example, the person was a “felon, convicted of murder” when the statement was false.

During the appeal, Dr. Painter filed a motion for summary judgment on the remaining count — the alleged violation of the Medical Studies Act. Dr. Painter argued that there was no private right of action because Dr. Tunca was not a member of the class of persons the statute was enacted to benefit.

In October 2010, the trial court granted summary judgment in favor of Dr. Painter, and Dr. Tunca filed a motion to reconsider, which was denied. Dr. Tunca appealed.

On appeal, he argued that the privilege under the Medical Studies Act did not apply to Dr. Painter’s statements, and therefore summary judgment was wrong. Citing the relevant sessions of the Medical Studies Act and Webb v. Mount Sinai Hospital and Medical Center of Chicago, Inc. and Roach v.

Springfield Clinic, the court discussed the fact that statements obtained do not protect against the disclosure of information generated before a peer review process begins or after it ends. Because Dr. Tunca admitted that no peer review committee action had been taken by the time of Dr. Painter’s statements, the court concluded that the confidentiality provisions of the Medical Studies Act did not apply.

The court concluded that even assuming that somehow the statements were made under the Act, there is no private right of action for a peer-reviewed physician, and such physicians are not part of the class of people that the Medical Studies Act is intended to protect.

Josh Tunca v. Thomas Painter, 2012 IL App. (1st) 110930.
Kreisman Law Offices has been handling medical negligence and birth injury cases for individuals and families for more than 37 years, in and around Chicago, Cook County and its surrounding areas, including Clarendon Hills, Villa Park, Northlake, Franklin Park, Harwood Heights, Chicago (Jefferson Park), Chicago (Roscoe Village), Forest Park, Oak Forest, Park Forest, Evergreen Park, Itasca, Rolling Meadows and Bolingbrook, Ill.

Under the Supreme Court decision in Hudson v. City of Chicago, 228 Ill.2d 468 (2008) and Rein v. David A. Noyes & Co., 172 Ill.2d 325 (1996), res judicata bars a refiled lawsuit when:

A. A final judgment is entered on one count in a multi-count complaint involving the same cause of action;
B. The plaintiff voluntarily dismisses the remaining counts under §2-1009 of the Illinois Code of Civil Procedure; and
C. The plaintiff refiles the case within a year, based on §13-217 of the Illinois Code of Civil Procedure.

Edward Hospital also relied on Williams v. Ingalls Memorial Hospital, 408 Ill.App.3d 360 (2011), which applied res judicata in another medical malpractice case involving allegations that the hospital was responsible for the negligence of its actual and apparent agents, the doctors.

Here, the Illinois Supreme Court ruled that “Williams was incorrectly decided.” The Supreme Court also stated that three requirements must be met for res judicata to apply, (1) a final judgment on the merits; (2) identity of a cause of action; and (3) identity of parties or their privies.

The court stated that the summary judgment entered by the prior court did not end the litigation. In distinguishing the Williams case, the Supreme Court held that apparent agency and actual agency are not separate claims for the purposes of res judicata and that no final order was entered in this case. The plaintiffs have one claim or cause of action against the hospital; a negligence claim based on the hospital’s responsibility for the allegedly negligent acts of the defendant doctors.

At the trial court level, the grant of a partial summary judgment on actual agency merely removed some of the allegations against the hospital from the case, but the allegations of agency remained. The plaintiffs could still prove that the hospital was liable for negligence based upon the remaining allegations of apparent agency. The trial court’s grant of partial summary judgment did not dispose of the rights of the parties on a separate level of the controversy. Therefore, the order was not final for res judicata purposes and the plaintiffs were not barred from asserting their allegations of a parent agency in their refiled case.

Wilson v. Edward Hospital, 2012 IL 112898 (Dec. 13, 2012).
Kreisman Law Offices has been handling medical negligence cases, birth injury cases and other personal injury matters for individuals and families for more than 37 years, in and around Chicago, Cook County and its surrounding areas, including Bensenville, Bolingbrook, Calumet City, Deerfield, Elk Grove Village, Evanston, Joliet, Markham, Rolling Meadows, Chicago (Bridgeport) and Lisle, Ill.

A 36-year-old nurse was seen by the defendant obstetrician Larry Overcash, M.D. The physician was alleged to be negligent in performing a bilateral removal of both of Ms. Fief’s ovaries. She had consented to removal of only one ovary. However, at the Peoria Day Surgery Center, both of the Fief’s ovaries were removed by Dr. Overcash, who also perforated her colon during the surgery. The perforation of the colon led to several other hospitalizations and medical expenses in excess of $200,000.

The jury’s verdict of $1.2 million against both Dr. Overcash and Woman’s Health Institute, Ltd. was made up of the following damages:

The attorney for Ms. Fief was James P. Ginzkey. The offer of the defendants before trial was zero. The jury was asked to return a verdict in the range of $800,000 to $1,200,000.

Sheri Fief v. Larry F. Overcash, M.D. and Woman’s Health Institute, Ltd., 07 L 339 (Peoria County).

Kreisman Law Offices has been medical negligence and birth injury cases for individuals and families for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Bridgeview, Bedford Park, Chicago (Midway), Geneva, Joliet, Lincolnwood, Mundelein, Oak Lawn, Round Lake Beach, Niles and St. Charles, Ill.

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The U.S. Supreme Court is scheduled to hear arguments soon on whether a generic drug maker can be held responsible for a patient’s injuries. The case is considered very important for pharmaceutical companies, federal regulators and patients who take generic drugs. Some experts estimate that generics make up 80 percent of all drugs taken by people in the United States.

Two years ago, the Supreme Court issued a ruling in Pliva v. Mensing that limited conditions under which consumers of generic drugs could sue manufacturers. In that ruling, the court said companies did not have control over what warning labels said and therefore could not be sued for failure to alert patients about the risks of taking certain drugs.

Bartlett’s case is different, however. Her attorneys did not argue that the drug’s warning label was inadequate. Instead, she claimed that the drug itself was defective. But Mutual has contended that it has no control over the drug’s design because sulindac is a copy of another drug — just like it has no control over warning labels.

The law states that generics may not deviate from a brand-name drug they are copying. Sulindac is the scientific name for Clinoril, a drug that is much like ibuprofen, which was approved by the U.S. Food and Drug Administration in 1978. Sulindac is in a class of drugs known as nonsteroidal anti-inflammatory drugs. They are widely used. Mutual is a subsidiary of Sun Pharmaceutical of India.

The Supreme Court’s ruling could have grave consequences for both sides.

If the court rules on the side of Mutual and says generics cannot be sued for defective products, many lawyers contend that patients will have little recourse if they are injured by a generic drug.

Meanwhile, makers of generics say if the court sides with Bartlett, the verdicts reached by juries would outweigh the power of federal agencies like the Food and Drug Administration. They say drug makers might even remove useful medicines from store shelves. The federal government has joined the generics in this case even though it opposed the industry in the Mensing case. In joining this case, the federal government pointed out that the F.D.A. had reviewed the drug, decided it was safe and determined it could remain on the market.

Attorneys for Bartlett say her suit could uncover new information about the safety of a new drug. They maintained that patients who took sulindac were more at risk of becoming ill like Bartlett, who developed toxic epidermal necrolysis, than those who took other drugs.

A story on the case appeared in the New York Times.
Kreisman Law Offices has been handling Illinois prescription error cases for individuals and families for more than 37 years in and around Chicago, Cook County, and surrounding areas, including Waukegan, Morton Grove, Des Plaines, Evergreen Park, Bellwood, Melrose Park, and Schiller Park.

More than 15,000 women die of ovarian cancer each year, which makes it the fifth leading cause of death among American women. A new study shows that 60 percent of the women who develop ovarian cancer do not receive the medical care they need that could prolong their lives. The Society of Gynecologic Oncology’s (SGO) annual meeting on women’s cancer presented the study March 11, 2013.

Ovarian cancer spreads inside the abdomen, and studies have shown that survival improves if women have surgery to remove all traces of the disease. Doctors recommend removing as much cancer as possible, following up with chemotherapy to eliminate any remaining cancerous cells. Sometimes surgery may include removal of the spleen, some of the intestine, stomach and other organs. The patient’s reproductive system must also be removed.

Correct therapy is recommended by the National Comprehensive Cancer Network (NCCN) Clinical Practice Guidelines. Researchers recommended seeing a surgeon who treats 10 or more ovarian cancer patients a year. Meanwhile, a high-volume hospital treats 20 or more ovarian cancer patients a year.

The study was led by Dr. Robert E. Bristow, who is director of the Division of Gynecologic Oncology at the University of California, Irvine. Dr. Bristow recommended that patients become their own advocates. He said they should ask their doctors how many ovarian cancer patients they treat, how many ovarian cancer surgeries they perform and their ovarian cancer patients’ rates of survival.

This study found that most patients are treated at hospitals and by surgeons who are not sufficiently practiced in the correct treatment. Researchers also found that even patients treated at high-volume hospitals and by high-volume surgeons received proper treatment only about half the time.

Dr. Bristow pointed out that in many cases, physicians provided some of the recommended care, such as the appropriate chemotherapy or surgery, but not both. In a press release from the SGO, Dr. Bristow said, “This shows we have a lot of room to improve. We need to become more sophisticated and to determine what the best performing physicians are doing different from everyone else, establish best practices and then enforce them to improve outcomes.”

Kreisman Law Offices has been handling Cook County cancer cases for individuals and families for more than 37 years in and around Chicago, Cook County, and surrounding areas, including Lindenhurst, Chicago’s Lakeview, Orland Park, Hoffman Estates, Vernon Hills, and Niles, Ill.

A new study shows that energy drinks may increase blood pressure and lead to a dangerously high heartbeat.

The study is an analysis of seven previous studies. It showed that these drinks appeared to disturb the heart’s natural rhythm. Over time, the drinks may lead to an irregular heartbeat or death and raise blood pressure, according to the study. The study results were presented by the American Heart Association on March 21 during a convention in New Orleans.

Two commonly sold energy drinks are Monster Energy Assault and Rockstar.

The U.S. Food and Drug Administration have been investigating the drinks, which are made by companies including Monster Beverage Corp., Living Essentials LLC and Red Bull GmbH. The FDA was called upon by consumers and lawmakers after the drinks were linked to hospitalizations and death.

The study appears to show that consumers, especially those with pre-existing heart conditions, should be cautious when buying these drinks.

Sachin Shah, the lead study author, said the drinks should be used only in moderation. Shah is an assistant professor of pharmacy practice at the University of the Pacific in Stockton, Calif.

The producers of energy drinks are not bound by FDA guidelines for caffeine in sodas because the drinks are often sold as dietary supplements. The FDA noted last year that soda has up to 71 milligrams of caffeine per 12-ounce drink. Meanwhile, caffeine in energy drinks ranges from 160 milligrams to 500 milligrams a serving, the FDA said.

A group of doctors recently wrote FDA Commissioner Margaret Hamburg about the energy drinks. They said these drinks should be allowed to have no more caffeine than sodas. The physicians also urged the FDA to require companies to list caffeine content on all labels.

In the new study, scientists evaluated 93 people after they drank up to three energy drinks. They found that the QT interval, which is a segment of the heart’s rhythm on an electrocardiogram, was 10 milliseconds longer after they consumed the drinks.

If patients have an extra 30 milliseconds in their QT interval, doctors often prescribe more tests. A typical QT interval is about 400 milliseconds. People who have already suffered a heart attack or heart failure may already have a longer QT interval. These people should the energy drinks, which can push up their QT interval by another 10 milliseconds.

In another study — which included 132 patients — researchers found that systolic blood pressure, the top number of the blood pressure reading that measures the pressure in the arteries when the heart beats, increased about 3.5 points on average after drinking an energy drink. People with high blood pressure should avoid the drinks, scientists said.
Kreisman Law Offices has been handling Illinois product liability lawsuits for over 37 years, serving those areas in and around Cook County, including Glenview, Elk Grove Village, Oak Park, Alsip, Wilmette and Bolingbrook, Ill.

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The defendant ophthalmologist, Seemin Khan, M.D., performed cataract surgery on the plaintiff, Frances Perkins, on March 19, 2008. It was discovered after the surgery that Perkins had a chronic detached retina. The retina is the light-sensitive tissue that lines the inner surface of the eye. The optics of the eye create an image on the retina, like the film in a camera.

The plaintiff alleged that Dr. Khan was negligent for choosing not to refer her for a B-scan ocular ultrasound or to a retinal specialist before deciding whether cataract surgery would be in her best interest. Since Perkins was not a good candidate for retinal surgery, the cataract surgery was found, or alleged to be, unnecessary.

Perkins, 59, suffered ongoing chronic pain following the cataract surgery, underwent three later retinal surgeries and still has chronic left eye pain.

Dr. Khan argued that the cataract surgery was necessary to repair a detached retina or for any retinal surgery. The jury disagreed with Dr. Khan’s assessment. After considering the evidence, the jury found in favor of Perkins, and its verdict of $678,483 was made up of the following damages:

$78,483 for past medical expenses;
$60,000 for future medical expenses;
$175,000 for past pain and suffering;
$140,000 for future pain and suffering;
$100,000 for past loss of normal life;
$125,000 for future loss of normal life.

Before the trial, a demand to settle the case was made at $100,000. The jury was asked to return a verdict of $838,483. The defendant, Dr. Khan, made no offer to settle the case.

The attorney for Frances Perkins was Mark C. Murnane.

Frances M. Perkins v. Dr. Seemin Khan, 10 L 2837 (Cook County).

Kreisman Law Offices has been handling medical negligence cases for individuals and families for more than 37 years, in and around Chicago, Cook County and its surrounding areas, including Hoffman Estates, Northbrook, University Park, Chicago (Pilsen), Elmhurst, Chicago (Englewood), Worth, Alsip, South Holland, Blue Island, Deerfield and Midlothian, Ill.

Related blog posts:

LASIK Surgery Mishap Leads to Jury Verdict of $362,274; Spevak v. Doctors for Visual Freedom

$1.15 Million Jury Verdict for Patient with Chest Pain Leading to Fatal Heart Attack; Herring v. Blake

$7.5 Million Verdict for Death Following a Spleen Removal Surgery; Estate of J.F., deceased v. Dr. George Salti, et al.

Joyce Bonner was injured in a fall and lost four of her front teeth. She received treatment from dentist Dr. Elliott Ostro to repair the damage. Ostro recommended four implants to replace the teeth. However, Ostro did not take x-rays or make molds of Bonner’s mouth before starting his work.

More than a year later, Ostro still had not managed to complete the implant work. Bonner stopped seeing him and started with a new dentist in 2009. The new dentist gave his opinion that Ostro had not properly prepared Bonner for the implants and restoration of her teeth. Bonner later filed a lawsuit against Ostro.

At the trial, Bonner called dentist Dr. Loren Goldstein to testify as an expert witness as to the standard of care required for implant surgery. Goldstein testified that Ostro had deviated from the standard of care by failing to take x-rays or molds of Bonner’s mouth before starting surgery.

Ostro filed a motion in limine to disqualify Goldstein on the basis that Goldstein was a dentist and not an oral surgeon and in fact had not placed implants into patients’ mouths.

The trial court denied the motion and permitted Goldstein to testify. The jury eventually found in Bonner’s favor and awarded her $83,000 in damages. Ostro appealed.

On appeal, Ostro argued that the trial court was in error by denying the motion in limine to bar Goldstein from testifying.It was further argued by Ostro that Goldstein was not qualified to testify because he was only a general dentist and not an oral surgeon. Ostro contended that Goldstein was not able to testify to the jury as to the proper procedures for implant surgery.

The Illinois Appellate Court for the First District rejected Bonner’s argument, citing Silverstein v. Brander stating that even though Goldstein did not share Ostro’s specific expertise, he was nonetheless qualified to testify because the subject of his testimony, the presurgical procedure of implant installation, was within his own experience.

The appellate court also noted that Goldstein’s testimony concerned procedures that were not reserved solely for surgeons and that he had demonstrated experience with such procedure in his work history.

On the other hand, Ostro argued that he was denied a fair trial because Bonner and his attorneys repeatedly violated Illinois Supreme Court Rule 213 on disclosure of independent witness opinions. Ostro argued that Goldstein testified to several matters not previously disclosed in Bonner’s interrogatories or at deposition. That argument was rejected.

Further, Ostro argued that the trial court erred when it allowed Goldstein to testify to certain damage-related matters despite a ruling to bar such testimony in pretrial motions. Again, the court rejected that argument stating that the motion in limine in question only barred certain aspects of testimony and that the testimony allowed by the trial court was not barred.

The appellate court went on to state that Ostro did not demonstrate that the trial court abused its discretion in granting the motion in limine and that as a trial court’s ruling on a motion in limine was subject to change at trial, Ostro could not show such an abuse of discretion because the trial court altered its pretrial ruling.

Lastly, Ostro argued that Bonner’s counsel had shifted the burden of proof to Ostro in his closing argument comments by stating that Ostro had failed to testify that he had complied with the standard of care. The Illinois Appellate Court rejected that contention as well, stating that Ostro had forfeited his challenge by failing to cite any supporting authority or to challenge the statements at the trial.

The appellate court therefore affirmed the trial court’s ruling and the jury verdict stands.

Joyce Bonner v. Elliott Ostro.DDS, 2013 IL App. (1^st) 103664-U.

Kreisman Law Offices has been handling medical negligence matters for individuals and families for more than 37 years, in and around Chicago, Cook County and its surrounding areas, including Warrenville, Palatine, Rolling Meadows, Chicago (Sauganash), Chicago (Albany Park), Berkeley, Melrose Park, Chicago Ridge, Blue Island, Hanover Park, Burr Ridge, Chicago (Edgebrook), Alsip and Joliet, Ill.

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