In a May 16, 2013 New York Times opinion page editorial, written by assistant professor of law at the University of California, Los Angeles, Joanna  C. Schwartz, discussed the Affordable Care Act in relation to medical malpractice lawsuits. The article was titled, “Learning from Litigation.” The thrust of the article is that new evidence contradicts the “conventional wisdom that malpractice litigation compromises the patient safety . . .”  Professor Schwartz says that the opposite appears to be occurring;  that with more openness and transparency, hospitals are responding to the risk of litigation in positive ways.

Professor Schwartz interviewed dozens of hospital risk managers who confirmed that a hospital’s approach to lawsuits has begun to change. She says that hospitals have become more open to handling medical errors up front and are apologizing to patients when mistakes do happen in some cases.

The given reason that hospitals are more open to these types of solutions is that in disclosing errors up front, hospitals and patients tend to resolve matters much earlier, reasonably and much more cost effectively. 

In addition, Professor Schwartz reached the conclusion that malpractice lawsuits make hospitals and doctors more responsible for medical errors. 

Medical malpractice lawsuits lead to greater reports of errors that may not have otherwise been reported. In the discovery process of lawsuits, safety and quality practices are also unveiled.

With the negative publicity regarding medical malpractice claims, many states have incorporated reforms on medical malpractice lawsuits including “caps” that limit the amount of money that a patient may recover because of hospital or physician errors that cause injury or death.  However, Professor Schwartz’s study found that with openness and transparency, the cap reform statutes impede sensible efforts to improve medical care, rather than to improve them.  

Kreisman Law Offices has been handling medical malpractice negligence for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Naperville, Glenview, Norridge, Stickney, Bedford Park, Oak Lawn, Blue Island, Chicago (Stockyards), Chicago (West Town), Elmwood Park, Melrose Park and Elmhurst, Ill.

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The Illinois Appellate Court for the Fourth District reversed a jury’s verdict for defendants, which included OSF Healthcare System, in the Circuit Court of McLean County.  The case centered around an injury and subsequent death of a 3-year-old boy, Christian Rivera, in 2003. The jury trial was held in July 2011. 

During the trial, the family of Christian offered its expert witness, Dr. Finley Brown, to testify as a medical expert in family practice.

The defendants were allowed by the trial judge to cross-examine Dr. Brown for the issue related to his annual earnings as an expert witness for an 8-year period. Plaintiff’s counsel had argued against the broad timeframe, but the trial judge denied plaintiff’s motion to limit the timeframe. Defense used this testimony to say the jury that Dr. Brown was a “go-to guy for expert opinions.”

In addition, the trial judge prevented plaintiff’s counsel from rehabilitating Dr. Brown or to point out and redirect that Dr. Brown had often times been asked to act as a medical expert for the defendants’ law firm. In fact Dr. Brown had served as an expert by the defendants’ law firm many times, yet the trial prevented plaintiff’s counsel from allowing the jury to hear that. 

The appellate court found that the trial judge had erred in several ways that prevented the plaintiff from having a fair trial. The appellate court ordered a new trial after reversing the jury’s verdict. 

The appellate court found that in a medical negligence case, a jury must decide whether the defendant physician deviated from applicable standard of care based upon the expert medical testimony given at the trial. Although it is permissible to cross-examine an expert witness about the amount and percentage of income that he or she generates from work as an expert, it is not a proper function of cross-examination to harass expert witnesses or to unnecessarily invade their legitimate privacy. Trower v. Jones, 121 Ill.2d 211 (1988). Although the Trower case did not limit the number of years in which an expert witness could be cross-examined as to income as an expert witness, the appellate court found that an 8-year period was an abuse of discretion. 

In addition, the trial court was found to have abused its discretion and compounded the prejudice when it denied the plaintiff an opportunity to rebut the defendants’ attacks with evidence showing that the defendants’ attorneys had retained Dr. Brown as an expert witness in several cases in the past. 

Further, the appellate court found that the defendants’ use of the U.S. Bureau of Labor statistics to show that Dr. Brown made an inordinate amount of money compared to other family practice physicians was an abuse of discretion for a number of reasons.  One was that the publication was not authenticated. Another was that the publication had little probative value for the purposes for which it was used.

The appellate court also criticized the trial judge for allowing hearing on a late filed motion for summary judgment brought by the defendants. 

In sum, the case was reversed and cause remanded for a new trial in line with the court’s opinions. 

Pontiac National Bank, Administrator of the Estate of Christian Rivera, deceased v. OSF Healthcare System, et al., 2013 IL App. (4^th) 111088.

Kreisman Law Offices has been handling medical negligence cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Crystal Lake, Vernon Hills, Algonquin, Cary, Fox River Grove, Hoffman Estates, Carol Stream, Bensenville, Glendale Heights, Villa Park, Westmont, Summit, Dolton, Calumet City and Romeoville, Ill.

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Fifty-year-old Dan Hebel suffered a rope burn while on a fishing trip in August 2004. Eventually he was referred to an orthopedic surgeon, Dr. Craig Williams, at Illinois Bone & Joint Institute in Morton Grove.He first complained of an infectious process in his hand on August 23, 2004.One week later, Dr. Williams gave Hebel a steroid injection.The injection, however, caused the infection to worsen.

In this lawsuit, Hebel contended that the steroid injection was contraindicated by the underlying infection. Dr. Williams referred Hebel to Dr. Robert Citronberg for infectious disease management. Drs. Williams and Citronberg became co-treating physicians. Sometimes infections like this require antibiotic treatment and/or surgical involvement.

On November 9, 2004, Dr. Williams performed an incision and drainage procedure. Specimens from the surgery were sent for study and cultures. The pathology results were sent to both physicians, but the culture results were sent only to Dr. Williams and never sent to Dr. Citronberg.

Other surgical specimens were sent for culturing on November 18, 2004 and on January 14, 2005. Dr. Williams received the November 9 culture reports on December 12, December 15 and December 17; these indicated the growth of a rare bacteria. Dr. Williams did not provide these results to Dr. Citronberg and chose not to review the December 17, 2004 report altogether.

Instead Dr. Citronberg treated the plaintiff for a fungus that grew from the November 18 specimen.Eventually, the January 14, 2005 specimen tested positive for acid fast bacilli, showing Dr. Citronberg that the plaintiff likely had Mycobacterium marinum.As a result, there was a 44-day lapse in the diagnosis and antibiotic treatment for this particular infection. It was alleged that the delay caused the worsening of the infection.

Hebel was then hospitalized for one week at Mayo Clinic in Rochester, Minn., where he underwent three debridement surgeries to his left hand, followed by five months of physical therapy and long-term intravenous antibiotic treatment for the infection that had set in.

Hebel’s hand now lacks full range of motion with an inability to fully open the fingers or make a tight fist. He has what is known as a trigger finger and has surgical scars. His hand is now extremely sensitive to temperature.

Today, the plaintiff is unable to enjoy golfing, fishing and skeet-shooting.The plaintiff’s infectious disease expert testified at trial that there was a 75% chance that the three debridement surgeries at Mayo Clinic would have been unnecessary if the December 2004 culture reports had been acted upon in a timely manner.

The defendant argued that Dr. Williams saw no evidence of infection at the time of the first office visit, which followed a 10-day course of antibiotics. Plaintiff still had inflammation one week later, but no signs of active infection. The records also showed no worsening of the hand condition. Dr. Williams sent Hebel to Dr. Citronberg on September 29, 2004 when a second fishing trip led to a flare-up of the infection.

Dr. Williams also contended that he instructed the circulating nurse during the November 9, 2004 procedure at the surgery center to have all lab results sent to both himself and Dr. Citronberg. Different labs performed the pathology and culture results. Dr. Williams believed that the nurse had carried out his order when he saw both doctors’ names on the pathology reports. Dr. Citronberg allegedly phoned Dr. Williams on November 29 to say that he had spoken with the lab about the November 18 specimen that was growing a fungus. Dr. Williams claimed he did not know the lab had failed to send the culture reports to Dr. Citronberg in mid-December, so he did not believe he needed to send those results.

Dr. Williams also maintained that Dr. Citronberg’s partner started treatment for the bacterial infection on November 18, but Dr. Citronberg took Hebel off the treatment for the rare bacterial infection on December 6 after the fungal results came back.

Hebel was represented by attorney Benjamin Nichols.The jury was asked to return a verdict of $551,801.There was no offer to settle the case made by Dr. Williams and his practice group before trial.

The jury’s verdict of $215,000 was made up of the following damages:

• $100,000 for pain and suffering;
• $50,000 for loss of normal life;
• $10,000 for disfigurement;
• $30,000 for medical expenses;
• $25,000 for lost income or benefits.

Before trial, a co-defendant, Golf Surgical Center, which was the place where the hand surgery was done, settled with Hebel for $200,000.

Hebel v. Illinois Bone & Joint Institute, LLC, et al. 2011 L 1007 (Cook County)

Kreisman Law Offices has been handling medical negligence cases and nursing home abuse cases and personal injury matters for individuals and families for more than 37 years, in and around Chicago, Cook County and its surrounding areas, including Melrose Park, Mundelein, Glenview, Homewood, Tinley Park, Evanston, Chicago (Albany Park), Chicago (Bridgeport), Chicago (Canaryville), Crestwood and Park Ridge, Ill.

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The Illinois Appellate Court reversed a trial judge’s ruling in a medical malpractice case because the judge ruled that the defendants had no right of reduction on the jury’s verdict.  

In this case, Charles Perkey, as administrator of the estate of Leanne Perkey (his wife), sued the doctors and hospital because of a delay in diagnosing Leanne’s pancreatic cancer in a timely manner. 

After a jury trial, the verdict, which included $310,000 for Leanne’s medical expenses, was not reduced when the trial judge refused the defendants’ motion to reduce the judgment under Section 2-1205 of the Illinois Code of Civil Procedure. 

Section 2-1205 allows for 100 percent of medical expenses “which have been paid, or which have become payable to the injured person by any other person, corporation, insurance company or fund in relation to a particular injury.” This deduction is allowed up to 50 percent of the judgment (which is why the defendants asked for a deduction of $300,000, although Leanne’s total medical expenses were $310,000).

Charles argued that the $134,933.85 paid by BlueCross BlueShield of Illinois (BCBS) had a health insurance policy that required reimbursement. Under Section 2-1205(2), “such reduction shall not apply to the extent that there is a right of recoupment through subrogation, trust agreement, lien or otherwise.”

BCBS paid $134,933, so that the defendants argued they were entitled to a reduction of $175,066.15 (calculated by subtracting the amount of the BCBS claim, minus $134,933 from the $310,000 verdict for the medical expenses). The trial judge ruled that there was no right of reduction because BCBS had a right of recoupment.

The appellate court pointed out that the trial judge was wrong because the subsection of 2-1205(2) states that reduction shall not apply to the extent that there is a right of recoupment through subrogation.

The appellate court discussed the clear language in the statute as to the reduction of costs of medical malpractice actions by eliminating duplicative recoveries while still preventing a plaintiff from being subjected to an uncompensated loss should an insure assert its right to recover medical payments. The court concluded that the trial court erred in denying defendants’ motion to reduce the judgment under Section 2-1205.  The trial court’s order was reversed and returned to the trial judge for its reconsideration in line with the appellate court decision.

Perkey v. Portes, 2013 IL App. (2d) 120470 (April 17, 2013).

Kreisman Law Offices has been handling medical negligence, nursing home abuse cases and medical malpractice matters for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Chicago (Albany Park), Chicago (Avondale), Chicago (Back of the Yards), Glenview, Niles, Chicago (Little Italy), Burr Ridge, Arlington Heights, Joliet, Geneva, Lisle, Lincolnwood, Round Lake and St. Charles, Ill.

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Neal Nuss, age 73, was transported to St. James Hospital in Blue Island, Ill., on Sept. 5, 2006 following an auto accident. Nuss was admitted to the hospital and diagnosed with subdural hematoma; he was evaluated by a neurosurgeon. 

Over the next three days, doctors determined that the subdural hematoma was not big enough to operate on. Nuss was discharged from the hospital on Sept. 8, 2006. The doctors planned to monitor his condition as an outpatient. The monitoring was overseen by the defendant Dr. Cheryl Woodson, the patient’s primary care physician.Dr. Woodson instructed Nuss to return as an outpatient to undergo a CT scan at St. James Hospital for comparison. Nuss followed up as directed and saw Dr. Woodson on September 12 and underwent the CT scan on September 13. The scans were interpreted by radiologist, Dr. Green.

The doctors concluded that Nuss’s condition was stable and his next follow-up visit was planned with the neurosurgeon five days ahead.

However, on Sept. 16, 2006, the day before the scheduled appointment with the neurosurgeon, Nuss was found semi-conscious in his bathtub at his home. He was taken to St. James Hospital where he was readmitted with a worsened subdural hematoma. 

This time surgery was necessary, but Nuss suffered a stroke and died at age 74 on Oct. 9, 2006. The Nuss family lawsuit contended that Dr. Woodson’s outpatient exam was below the standard of care because she chose not to appreciate the signs and symptoms of the worsening or expanding subdural hematoma. Further, Dr. Green, one of the defendants, chose not to appropriately and adequately review and interpret the outpatient CT scan and thus he too chose not identify and report the new bleeding that showed up on the scan. It was also alleged that the defendants’ negligence allowed Nuss to remain unmonitored between September 13 and September 17, 2006 leading to his demise.

The family of Mr. Nuss argued that Mr. Nuss was never in stable condition. He should have been evaluated by a neurosurgeon on Sept. 12 to Sept. 13, 2006 and that earlier intervention by a neurosurgeon would have prevented the hematoma from expanding. 

The defendants defended the case, stating that Dr. Woodson’s outpatient exam was correct, and she properly followed the discharge plan set forth by the treating neurosurgeon. The defense for Dr. Green, the radiologist, argued that the CT scan was properly interpreted and the imaging showed no worsening or expansion of the hematoma.

In addition, it is argued that no neurosurgical intervention was required between Sept. 8 and Sept, 17, 2006 based on the Nuss’s clinical status and that his worsening condition was a result of him slipping in the bathtub and striking his head.  The fall caused the stable hematoma to bleed again and the brain bleed was a new injury.

The jury apparently believed that the defendants’ arguments were more credible and found in favor of all defendants. 

There was no offer to settle the case before trial. The lawyer for the Nuss family asked the jury to return a verdict of $4,500,000.

The Estate of Neal Nuss v. Dr. Cheryl E. Woodson, M.D., et al., No. 08 L 9887.

Kreisman Law Offices has been handling medical negligence cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of medical professionals for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Harwood Heights, Chicago (Edison Park), Park Ridge, Schiller Park, Oak Forest, Orland Park, Crestwood, Chicago Ridge, Chicago Heights, North Chicago, Hinsdale, Berwyn, Chicago (Lincoln Park), Stickney and River Forest, Ill.

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An Illinois jury found that Abbott Laboratories was negligent and ordered it to pay $2,244,063 for an infection suffered by Delores Tietz after she took the rheumatoid arthritis drug, Humira.

The Cook County Illinois jury entered its verdict for the plaintiff,  Milton Tietz, who was the personal representative of the Delores Tietz estate. She  died in March 2013.

The jury found that Abbott was negligent for not taking reasonable measures to make sure that Delores Tietz’s doctors had a “high index of suspicion for histoplasmosis,” which is a fungal lung infection. She contracted this infection while taking the arthritis drug, Humira.

This case was the first Humira trial in the country. Delores was first prescribed Humira as a tumor necrosis factor (TNF) blocker.  She began taking the drug in October 2009 and continued for almost seven months. By May 2010, Delores experienced chest pain and fever. Later she was diagnosed with histoplasmosis. 

The manufacturer of Humira is Abbott Laboratories, which has now spun off this division and is called AbbVie, Inc. The lawsuit filed in 2012 alleged that Abbott negligently chose not to warn Delores or her doctor of the risk of contracting the histoplasmosis infection as a side effect from taking Humira. 

In fact, in September 2008, the Food and Drug Administration (FDA) warned manufacturers of TNF blockers to provide new information about the risk of unrecognized, drug-induced histoplasmosis. When Humira is taken for autoimmune diseases such as rheumatoid arthritis, it acts as an immunosuppressant. Those who are immunosuppressed are much more susceptible to infections because the body’s antibodies are not fighting bacteria as it normally does. 

In the complaint, it was alleged that Abbott chose not to send warning letters directly to physicians until 10 days after Delores Tietz was diagnosed and hospitalized in May 2010. 

The Tietz family was represented by several attorneys, including Jim Purdue, Jr. and Gary D. McCallister.   

Milton Tietz for the Estate of Delores Tietz v. Abbott Laboratories, et al.

Kreisman Law Offices has been handling pharmaceutical mass tort cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence or by the product defects of pharmaceutical companies’ drugs for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Winfield, Warrenville, Justice, Chicago (Lincoln Village), Chicago (Andersonville), Chicago (Bronzeville), Glenview, Lake Zurich, Lincolnshire and Prospect Heights, Ill.

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In November 2006, the defendant surgeon, Dr. Hodgett, performed a laparoscopic biopsy on a 72-year-old woman, Mary Backes.  The purpose was to diagnose a suspected lymphoma in her retroperitoneal area, which is behind the abdomen. The biopsy was done at Provena Nursing Medical Center in Aurora, Ill. 

Another defendant, Dr. Sayeed, was the patient’s primary care physician. Following the biopsy, Backes experienced blood pressure drops, low urine output and rapid respiration. 

Her family maintained in the lawsuit that Dr. Hodges and Dr. Sayeed chose not to recognize that Backes’s duodenum had been perforated during the biopsy procedure and failed to realize that her post-op symptoms were indicative of developing sepsis. It was also claimed that the doctors chose not to timely return Backes to surgery for exploration and repair of the perforation to attempt to save her life.

As a result, she suffered from sepsis and multi-system organ failure, leading to her death. She was, however, returned to the operating room around 6 a.m., about 3 hours after it was alleged that the perforation took place. She died a short time later. She was survived by her husband and an adult son. Backes also had five adult stepchildren who had never been adopted and were not allowed to testify as to their loss of society by the court’s order.             

The defendants maintained that while the patient’s vital signs were consistent with sepsis at times, they were not diagnostic of that condition. Dr. Sayeed examined Backes at 8:30 p.m. with normal post-op findings, and an abdominal CT scan around 9 p.m. was interpreted as normal. The doctor’s actions, including multiple telephone orders throughout the night, complied with the standard of care. The perforation of the duodenum was a delayed perforation, which did not occur until around 2:45 a.m. when the patient’s condition had dramatically changed. 

The biopsy was positive for large Stage IV(b) cell lymphoma. A transesophageal echocardiogram performed at the time of the exploratory surgery showed an ejection rate of 20 percent. According to an oncology expert for defendants who testified at trial, Backes’s ejection fraction rate precluded treatment leaving her with only a 3-month life expectancy.

The jury’s verdict for defendants came with no offer having been made before trial. The attorney for the family for Mary Backes asked the jury to return a verdict of $2,612,961. 

The Estate of Mary Backes v. Dr. Sifatur Sayeed and Dr. David Hodgett, No. 08 L 648 (Kane County).

Kreisman Law Offices has been handling medical negligence cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of medical, nursing and hospital professionals for more than 37 years in and around Chicago, Cook County and its surrounding areas, including New Lenox, Chicago (Pulaski Park), Chicago (Uptown), Schiller Park, Park Ridge, Forest Park, Chicago (Marquette Park), Chicago (Gresham), Lemont and Oak Forest, Ill.

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Joseph Farias, age 29, began treatment with the defendant internist, Yolanda Co, M.D., in February 2002. He came to the doctor with complaints of constipation for three years and rectal bleeding. Dr. Co performed a rectal exam and ordered a colonoscopy, which came back negative. There was no cause determined as to why Farias had rectal bleeding.

In October 2003, Farias returned to Dr. Co with new complaints of rectal bleeding. That visit was a cause of what became a medical malpractice lawsuit. This time Dr. Co did a digital rectal exam and diagnosed internal hemorrhoids. In Farias’s Cook County complaint, it was alleged that the internal hemorrhoids could not be diagnosed through digital examination unless the internal hemorrhoids were visualized outside the anus. The standard of care as contended required Dr. Co to perform an anoscopy to properly visualize the hemorrhoids. It was also asserted that should Dr. Co not have the facility to do the anoscopy,  she should have referred Farias to another physician such as a gastroenterologist. 

Dr. Co defended the case by saying that she did observe prolapsing internal hemorrhoids (protruding out of the rectum), even though her chart  stated only internal hemorrhoids. Dr. Co testified that the standard of care required a treating internist such as herself to grade and chart the severity of an internal hemorrhoid, but she admittedly didn’t do that in October 2003.

Dr. Co continued treating the plaintiff over the next three years even though he complained of rectal bleeding into the summer of 2004. By February 2005, Dr. Co diagnosed Farias’ problems as external hemorrhoids.

During a visit in December 2006, Farias requested that Dr. Co order another colonoscopy. The colonoscopy completed on Feb. 8, 2007 showed rectal cancer in the now 34-year-old man. Farias underwent radiation and chemotherapy treatment prior to surgery.  He gave up on chemotherapy after he suffered serious negative reactions. On May 29, 2007, Farias underwent an abdominoperineal resection with removal of the sphincter muscle. This required a permanent colostomy or a bag to receive body waste.

Farias’s wife, Karen, also claimed loss of consortium, emotional stress and difficulties with sexual intercourse due to her husband’s colostomy. The plaintiff claimed that Dr. Co was negligent for choosing not to confirm the source of continued rectal bleeding and choosing not to perform the anoscopy or refer Farias to a gastroenterologist from 2003 to 2005. It was argued that had Farias received anoscopy or been referred to a gastroenterologist by February 2005, his rectal cancer would have been detected earlier and would have been treated differently without the radical surgical interventions. In fact, it was maintained that if earlier diagnosed and treated, Farias would have not needed the permanent colostomy.

The defendant denied that she was negligent, denied the standard of care was missed by requiring an anoscopy and claimed that the treatment course of Farias and the outcome would have been the same if his cancer was discovered on or before Feb. 5, 2005. 

The jury was asked to return a verdict by plaintiff’s counsel, Bryan J. O’Conner Sr. and Eileen M. O’Conner, at the defendant’s policy limits at $1 million. There was no offer to settle the case before trial. 

The jury’s verdict of $934,779 was made up of the following damages:

$854,779 to Joseph Farias made up of these damages:

• $134,779 for future medical expenses;
• $720,000 for non-economic damages (pain and suffering experienced)

$80,000 to Karen Farias for loss of consortium.

This case was tried as a bench trial in front of the trial judge only. There was no jury impaneled to consider the evidence, decide the issue of liability or assess the damages. 

Joseph Farias, Karen Farias v. Yolanda Co, M.D., 10 L 3200 (Cook County, Illinois).

Kreisman Law Offices has been handling medical negligence for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Addison, Des Plaines, Glen Ellyn, Niles, Roscoe Village (Chicago), Village of Wilmette, Worth, Ill.

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It was announced in June 2013 that Johnson & Johnson, the maker of many healthcare products, will discontinue the sale of its metal-on-metal hip replacement products.  Although these metal-on-metal hip replacement products have not been recalled by Johnson & Johnson, it claims that decreased sales are the reason it is being discontinued. The decrease in sales — almost a 90% drop since 2007 —  has been caused by questions about the safety and effectiveness of the hip replacement joint.

The Food and Drug Administration (FDA) had proposed a rule requiring manufacturers of metal-on-metal hip replacement products to follow an extensive safety process if they chose to continue selling the product. Johnson & Johnson did recall the DePuy ASR Acetabular System in August 2010 after reports of worldwide failings.

In addition, DePuy sold and marketed the Pinnacle Acetabular Cup System, which included inserts that held the replaced joint made of plastic, ceramic and metal. The health issue was related to the metal liner. 

Hip replacement patients have reported frequent occurrences of metal debris released into the body, which destroys soft tissue surrounding the hip joint. Many of these hip replacement patients have undergone revision surgeries. Adverse reactions include metallosis, tumors, bone and tissue loss and other infectious processes. 

Kreisman Law Offices has been handling DePuy and Johnson & Johnson hip replacement defect cases for individuals and families for more than 37 years, in and around Chicago, Cook County and surrounding areas, including Chicago (Wrigleyville), Chicago (Belmont Harbor), Chicago (Beverly), Chicago (East Village), Chicago (Lincoln Square), Chicago (Rogers Park), Aurora, Bloomingdale, Bolingbrook, Crystal Lake, Round Beach Lake, Elgin, Forest Park and Glen Ellyn, Ill.

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Bozena Smith filed a medical negligence complaint against two doctors who were residents in 2006 when she claims she was injured in postsurgical treatment.

After the fact discovery was done by each of the parties, and the trial judge entered a deadline of Sept. 13, 2010 for the plaintiff to disclose any experts and opinions. Bozena disclosed one expert she had hired to render an opinion. In the Rule 213(f)(3) disclosures, the plaintiff stated that the doctor retained as an expert would provide expert opinions that both the residents, Drs. Murphy and McFadden, deviated from the standard of care in treating Smith, which caused her injuries. 

However, on Nov. 8, 2010, when the plaintiff’s expert doctor appeared for his deposition, he testified that he was withdrawing his adverse opinions against the residents and then testified that he held no opinions that implicated the residents in any substandard medical care of the plaintiff. In fact, the plaintiff’s expert testified as follows:

“It’s my opinion that residents in training should not be held accountable for these kinds of decisions, and, ultimately, actions of a resident . . . are the responsibility of the attending physician . . . I would like to scratch the two paragraphs [in my report] that implicates the residents.”

Afterwards, Bozena and her attorney had many opportunities to address the issue: Her only expert witness had withdrawn an opinion in which he criticized the defendants.She could have engaged another expert, who may have had critical opinions of the doctors, by asking the court for additional time to disclose experts. But instead, the plaintiff remained silent.  On Jan. 14, 2011, the court set the deadline for the defendants to disclose their experts in rebuttal to the opinions by the plaintiff’s only expert. The defendants complied with this deadline.

On May 2, 2011, the trial court ordered all discovery closed on May 19, 2011. The final case management conference was held on May 24, 2011, at which time the trial court and the parties agreed on a trial date of Oct. 17, 2011. 

The defendants then filed motions for summary judgment on Aug. 9, 2011, stating  that there was no evidence in the record criticizing the conduct of the two physician defendants. With the pending motion for summary judgment, the trial court gave time to the plaintiff to respond to the defendants’ motion for summary judgment and struck the trial date. 

The plaintiff filed a response with an attached unsigned proposed affidavit stating that she had an undisclosed new expert.In addition, the plaintiff filed the affidavit with a pleading entitled “Plaintiff’s Supplemental Answers to Rule 213(f)(3) Interrogatories” without leave of court. At the same time, the plaintiff filed a motion requesting time to file a signed affidavit of the new expert chosen by the plaintiff.

A hearing was held on the issue of plaintiff’s untimely disclosure of the new expert. The trial judge found that since the plaintiff waited until the conclusion of expert discovery, until defendants had already incurred the costs of an expert witness and presented them for deposition, the plaintiff was asking the court to reopen discovery, which was too late. The trial date was set and discovery was closed. The trial judge also found that if the plaintiff had stated  she needed an extension of time to disclose an additional witness that issue should have been taken up right after the deposition of the doctor who retracted his opinions criticizing the defendant doctors. Instead, there was no objection raised by plaintiff’s counsel, and the case proceeded. 

On granting the summary judgment motions brought by the defendants, the plaintiff appealed to the Illinois Appellate Court.  Plaintiff argued that the trial court erred when it barred the affidavit of the previously undisclosed expert witness. The court found that having disclosed plaintiff’s new expert for the first time, almost a year after plaintiff’s own expert exonerated the two defendants and testified they were not guilty of medical professional negligence and almost five months after discovery was closed, the plaintiff was simply too late. The appellate court found that defendants were surprised when plaintiff disclosed this new expert for the first time months after discovery was closed.  In addition, the disclosure of a new expert would be prejudicial to the defendants’ case because it would be unlikely that the defendants would be able to depose the new expert and retain their own expert to rebut the plaintiff’s new expert so close to trial. 

The appellate court justices stated that the trial court was correct in making its decision to bar the testimony of plaintiff’s new expert witness. The trial court did not abuse its discretion. Finally, the appellate court stated that the decision of the trial judge was not an error when it barred the affidavit of plaintiff’s previously undisclosed expert witness which was attached to plaintiff’s response to defendants’ motion for summary judgment and then entered judgment in favor of the defendants and against the plaintiff. The decision of the trial judge was affirmed. 

Bozena Smith v. Brian Murphy, M.D. and James McFadden, M.D., 2013 IL App. (1^st) 121839.  Decision date is July 16, 2013. 

Kreisman Law Offices has been handling medical negligence cases, birth injury cases and elder abuse cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Niles, Chicago (Jefferson Park), Harwood Heights, Schiller Park, Western Springs, Chicago (Lake Calumet), Justice, Blue Island, Rosemont, Riverdale, Crestwood, Orland Park, Chicago (Lincoln Square) and Elk Grove Village, Ill.

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Jennifer, a 25-year-old student, began experiencing severe headaches and visual disturbances. Several days later she went to a hospital emergency room. She told the ER staff  she was not prone to headaches and that she was currently taking oral contraception. Jennifer was diagnosed with a complex migraine headache.

Several hours later however, she developed slurred speech, tingling and paralysis in her arm along with low blood pressure. An attending physician ordered a CT scan of Jennifer’s head, which was interpreted by a radiologist showing no evidence of acute hemorrhage. Jennifer’s condition continued to deteriorate, and she began experiencing seizures. 

Finally, she was transferred to another hospital, where a second CT scan showed bilateral intracranial hemorrhages caused by thrombosis or a stroke. The doctors ordered brain surgery, which required a long and extensive rehabilitation program. She now has right-sided weakness and speech problems and requires lifetime medications.

Jennifer and her husband sued the physician and the medical practice alleging failure of choosing not to accurately read the first CT scan, note its abnormalities – which indicated an impending stroke – and communicate those findings to the patient’s attending healthcare providers.

The jury in this case awarded Jennifer and her husband a total of $5 million, which included $1 million to her husband for loss of consortium and services. 

This case is a sample of the consequences of a medical provider missing an opportunity to correctly diagnose and treat an impending stroke. The consequences are devastating. 

Kreisman Law Offices has been handling medical negligence cases, including the misdiagnosis of stroke patients for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Palatine, Chicago (Greektown), Chicago (Archer Heights), Brookfield, Chicago (Lakeview), Hillside, Yorkfield, Hinsdale, Wheaton, Western Springs, Worth and Chicago (Morgan Park), Ill.

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The U.S. Department of Labor reports that in 2008 only 12% of doctors were self-employed. With the implementation of the Affordable Care Act (ACA) and other healthcare reforms, the future of employment by physicians in hospitals will be overtaking the past trends. Hospital employment of doctors is expected to increase between 10 and 25% over the next five years. 

At the same time that employment of doctors is increasing in hospitals, the numbers of physicians practicing on their own is declining. This data comes from the Physician Compensation and Production Survey from the Medical Group Management Association (2003-2009) report. According to that report, physician-owned practices declined from 70% in 2002 to just under 50% by the year 2008.  In contrast, by 2008, hospital ownership of physician practices exceeded the percentage of physician practice sowned by physicians.  Hospital ownership of physician practices in 2002 was only slightly more than 20%.

Back in the 1990s, hospitals and health systems were employing primary care physicians more so than medical specialists because it was thought that the healthcare model of the future would ensure that primary care physicians would be gatekeepers to health care. Because of reform and the ACA, that trend has changed.  The rate of increase in employment of primary care physicians by hospitals and specialists is about equal now.  That is because the ACA does not promote a primary care gatekeeper model. The lowest cost resource at the earliest point of medical care means that specialists will be directed to the patient instead of through the primary care physician.

Doctors are more inclined to seek out hospitals as employment today more than ever.The reasons seem to be patient revenues have slowed, and the costs of medical practices have increased. Another reason seems to be that physicians face the obstacle of adopting electronic medical records and adopting programs that may be too expensive for a physician practice without the greater support of a capital-rich institution like a hospital.

There is also the fact that Medicare payments have not grown with the physician practice expenses at the same level. Medicare has limited the ability of doctors to make up for lost revenue. In addition, doctors are looking at hospitals as a more stable employment base that gives doctors a predictable income with a given time-off program. New doctors are facing enormous student debt. Often graduating physicians carry debt up to $150,000 into their first year of practice. 

At the same time, hospitals have accelerated the employment of doctors because of the anticipated changes under healthcare reform.There are many changes in the works that doctors and hospitals have made operational. Hospitals have created cost effective urgent care centers that are convenient and often open 24 hours. They are less costly than fully staffed, fully equipped emergency rooms. Also, integrating electronic medical records and health records are making hospitals and physicians accountable for their care to patients. 

There is a movement to make the physician role increasingly to be one of treating patients as outpatients and handing off patients to other medical providers.  The electronic health records are essential for that purpose.  The electronic health records also reminds patients of preventative care and follow-up care.  This will allow patients to recover their test results and reduce the need to retest.

The current system is such that hospitals and health systems are paid for improving the health of those who are sick or injured.  There is an incentive to improve the health of those who are not yet sick, which in turn would reduce healthcare costs going forward. According to the federal Centers for Disease Control and Prevention, “more than 75% of healthcare costs are due to chronic conditions . . . four common health-damaging, but modifiable behaviors- tobacco use, insufficient physical activity, poor eating habits and excessive alcohol abuse – are responsible for much of the illness, disability and premature death related to chronic diseases.”

Hospitals and doctors are working together to improve the management of disease in the United States. Hospitals will likely increasingly hire physicians as employees as changes in medical delivery are met. 

Kreisman Law Offices has been handling medical negligence claims and trial work for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Markham, Chicago (Chinatown), Chicago (Lakeview), Chicago (Ravenswood), Arlington Heights, Barrington, Berwyn, Burbank, Elgin, Forest Park, Hinsdale, Homewood, Lockport, Midlothian and Oak Brook, Ill.

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Jungie Kim underwent surgery to repair an abdominal aortic aneurysm at Rush Northshore Medical Center on Sept. 24, 2003.  Kim was a 55-year-old housewife.  The surgery was done by a vascular surgeon, Dr. Douglas Norman, a contracted employee at Rush Northshore. 

Following the surgery, Ms. Kim experienced severe ischemia in her right foot. Several more surgical procedures were performed.  There was the development of compartment syndrome pressure in a muscle compartment, which can cause muscle and nerve damages because of decreased blood flow.

In spite of the right foot surgeries, Ms. Kim’s foot became gangrenous, which eventually led to an amputation of the forefoot in April 2004.

Ms. Kim sought damages for her disability, disfigurement and pain and suffering. A lawsuit was filed against Dr. Norman and Rush Northshore.  Her husband made a claim for loss of consortium and loss of services because his wife, Ms. Kim, could no longer do household chores. 

The plaintiffs argued that Dr. Norman improperly sequenced the clamping of the major blood vessels during the surgery. It was alleged that in surgery, Dr. Norman choose to clamp the aorta first as was indicated in his operative report.  The iliac arteries were supposed to be clamped before the aorta to prevent plaque and thrombotic/clot material from flowing into the foot.  All of the parties in the case agreed that it would be a deviation from the accepted standard of care to clamp the aorta first. 

The defendants contended that Dr. Norman’s operative report did not intend to suggest a sequence of clamping in that the order in which he dictated the clamping was just a summary and not the order in which the clamping was done.  Dr. Norman said that the surgery he did and was trained to do, was done in the correct order and properly.  Defendants also maintained that plaintiff had an unhealthy vascular system due to her underlying diabetes, hardening of the arteries and history of smoking. Defendants argued that the foot ischemia could not have been prevented because of the severity of the hardening of the arteries.

The jury deliberated six and a half hours before reaching its $595,000 verdict made up of the following damages:

The verdict was against both defendants.

• $0 to Jungie Kim;
• $0 for disfigurement;
• $0 for pain and suffering;
• $0 for disability;
• $0 for medical expenses;
• $595,000 to Song Tai Kim (husband of Jungie Kim) for loss of consortium and services.

The attorney for the Kim family was Sal Indomenico.

Post-trial motions are pending before the trial court. 

At the trial, the counsel for the Kim family asked for a verdict between $2.5 and $3.5 million, but there was no offer made by the defendants. 

Kim v. Douglas Norman, M.D., Rush Northshore Medical Center, 09 L 7810 (Cook County).

Kreisman Law Offices has been handing medical negligence cases, including surgical errors, misdiagnosis and birth injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Lincolnwood, Chicago (Edgebrook), Norridge, Harwood Heights, Melrose Park, Chicago (Ashburn), Bedford Park, Chicago (Marquette Park), Chicago (Little Village), Chicago (Little Italy), Chicago (Pill Hill), Palos Park, Burr Ridge, Willowbrook, Oakbrook Terrace and Merionette Park, Ill.

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On June 22, 2006, Raymone Bowe, a 10-year-old boy, was brought by his mother to the emergency department at Norwegian American Hospital in Chicago with a sore throat, headache and a history of fever and vomiting. Raymone was seen in the ER by the defendant, Dr. Joseph Mejia, an occupational medicine/ophthalmology physician. 

Dr. Mejia diagnosed flu and headache and discharged Raymone with instructions to follow up if his symptoms continued or got worse. Two days later, at 12:19 a.m. on June 24, 2006, Raymone’s mother brought him to the emergency department at John H. Stroger Jr. Hospital of Cook County. She reported that Raymone had  3 days of diarrhea, vomiting and fever. The complete blood count showed Raymone had an elevated white blood count, but he was still discharged with a diagnosis of a viral syndrome. Later that  day, Raymone was taken to Children’s Memorial Hospital, where he was diagnosed with Streptococcus pneumoniae meningitis. Raymone was admitted to the pediatric intensive care unit. 

Because of the delay in treating the meningitis, Raymone sustained complete and permanent hearing loss in both ears resulting in surgeries to insert bilateral cochlear implants. 

Raymone’s family maintained that Dr. Mejia was negligent in choosing not to diagnose bacterial meningitis, choosing not to order the correct tests based on Raymone’s history and presentation and failing to order antibiotics. 

Raymone’s family further claimed that Dr. Mejia was not qualified to treat children in the emergency room because he was not an emergency room physician. Dr. Mejia, it was claimed, should have consulted with an emergency medicine physician, a pediatrician or a pediatric infectious disease physician.It was also maintained that the hospital deviated from the standard of care and its own policies and procedures by allowing Dr. Mejia to see patients in the ER. In addition, the emergency room group that was also named as a defendant, breached its own policies and procedures in that it should not have allowed a non-board certified and non-ER physician to treat the minor patient, Raymone. 

The defendants asserted that Raymone was appropriately treated by Dr. Mejia, that the standard of care did not require a complete blood count, blood cultures, lumbar puncture or antibiotics, and it was appropriate for Raymone to be treated in the fast-track emergency department by Dr. Mejia. 

The defendants also argued that the child did not have meningitis when he presented to Norwegian American Hospital; therefore, nothing the defendants did or chose not to do caused or contributed to his hearing loss. The jury deliberated for 2 ½ days before finding in favor of all of the defendants. However, the parties entered into a high/low agreement of $450,000 as a low and $5 million as a high during deliberations. That means that because the verdict was in favor of all the defendants, that the agreed amount is $450,000. Stroger Hospital previously settled before trial for $625,000.

The attorneys for the Raymone Bowe family were Mark Mathys and Mark Schneid.The demand before trial was $2,800,000.  The attorneys for Raymone asked the jury to return a verdict of $14,560,553. The defendants offered $450,000 before trial.

Raymone Bowe, a minor v. Norwegian American Hospital, Emergency Care Physicians-HP, et al., No. 07 L 3307 (Cook County).

Kreisman Law Offices has been handling medical negligence and birth injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Schaumburg, Summit, Lemont, Elmwood Park, Antioch, Niles, Chicago (Roscoe Village), Chicago (Lincoln Park), Chicago (Rogers Park), Morton Grove, Park Ridge, Calumet City, Blue Island and Flossmoor, Ill.

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The Illinois Supreme Court has reversed an Illinois Appellate Court ruling concluding that Section 3.150(a) of the Emergency Medical Services Systems Act immunizes an ambulance driver in a non-emergency transfer of a patient. 

According to the Act, Section 3.150(a), “Any person . . . certified, licensed or authorized pursuant to this act or rules thereunder, who in good faith provides emergency or non emergency medical services . . . in the normal course of conducting their duties, or in an emergency, shall not be civilly liable as a result of their acts or omissions in providing such services unless such acts or omissions . . . constitute willful and wanton misconduct.”

In this case, the plaintiff, Karen Wilkins, sued Rhonda Williams for the injuries she sustained in Oak Lawn, Ill., when she was in an ambulance that crashed into her car. The ambulance was proceeding during a routine, nonemergency transfer of a patient from a hospital to a nursing home. The lawsuit alleged that the driver, Rhonda Williams, and her employer, Superior Air Ground Ambulance Service, were negligent. The defendants moved for summary judgment based on the Emergency Medical Services System Act.

The trial court granted Williams’s motion for summary judgment, but the Illinois Appellate Court reversed saying that “harmonizing the Vehicle Code with the EMS act” the immunity provision of  Section 3.150(a) did not extend to the negligent operation of a motor vehicle resulting in injuries to a third party. However, on appeal to the Illinois Supreme Court, Williams prevailed.

The Supreme Court found that Section 3.150(a) did not limit in any way the types of individuals to which the immunity applies.  The statute broadly declares that a person shall not be civilly liable as a result of their acts or omissions in providing non emergency medical services. 

Wilkins argued that Section 3.150(a) was enacted solely as a protection against professional liability claims filed by the patient in the ambulance. The Supreme Court found that the language in the statute is broad enough to include other plaintiffs negligently injured by an act or omission from the emergency or non emergency medical services. 

The Illinois Appellate Court concluded that under the Vehicle Code, Sections 11-205 and 11-907, an ambulance driver was not immune from third-party claims of negligence in the ordinary operation of a motor vehicle.  The appellate court stated that to allow immunity under the EMS Act “would render meaningless the vehicle code’s provisions that the driver of an authorized emergency vehicle must drive with due regard for the safety of all other drivers.”  The Supreme Court noted that Section 11-205 did not apply because it pertains to public officers and employees, while here the defendants are a private ambulance service and its employee.  Section 11-907 does apply to private employees, but that section is not directly on point, said the Supreme Court.  That section deals with emergency vehicles driving with lights and sirens.  Williams was not operating the ambulance with lights and sirens at the time of the incident.

The Illinois Supreme Court concluded that the plain language of Section 3.150(a) granted immunity from civil liability except for willful and wanton conduct.  The court found that in the case of Harris v. Thompson, 2012 IL 112525, the court there reviewed tort immunity in contrast to Section 11.907 of the Vehicle Code.  Likewise here, the Supreme Court found that Section 3.150(a) of the EMS Act is not abrogated by the Vehicle Code.  Since the defendants fall within the immunity provided by that Section of the EMS Act, the plaintiff’s cause of action for negligence against the defendants was dismissed.

Wilkins v. Williams, 013 IL 114310 (Ill. Sup. Ct. June 20, 2013).

Kreisman Law Offices has been handling medical negligence cases, nursing home abuse cases, truck accidents, automobile and car accidents for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Mundelein, Palatine, Hillside, Elmwood Park, Chicago (Little Village), Burbank, Bridgeview, Evergreen Park, Elk Grove Village, Chicago Ridge, Chicago (Grand Crossing), Chicago (South Shore), Oak Park and Franklin Park, Ill.

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On July 8, 2013, the U.S. District Court in Charleston, W.Va., started the first bellwether jury trial in the C.R. Bard, Inc. Multidistrict Litigation (MDL). Bard manufactures transvaginal mesh products. Not long after the beginning of the trial, the trial judge declared a mistrial. After opening statements and the testimony of at least one witness, a physician then testified inadvertently that the manufacturer (Bard) was no longer selling this type of mesh product, which was at issue in the case.

The court declared the mistrial because the testimony violated a pretrial order that prohibited evidence of a subsequent remedial measure. The case was restarted again in mid-August, but this time the jury returned a $2 million verdict for the injuries suffered by Donna Cisson, a public-health nurse from Georgia. She received the Bard Avaulta Plus implant in 2009. Jurors deliberated for 12 hours over two days before reaching their verdict. The vaginal mesh implant is made by Bard. Bard’s attorneys have said on the record that the company intends to appeal the verdict ($250,000 in compensatory damages and $1.75 million in punitive damages), which they say was wrong because Cisson’s injuries were not caused by Bard’s product.    

The transvaginal mesh products are used in surgical procedures to repair conditions in women that have pelvic organ prolapse and stress urinary incontinence. Bard has removed its Avaulta Plus implant product off the market in 2012 after the FDA ordered that all makers of these implant products review reports of organ damage, infection and pain during sex.

Pelvic organ prolapse happens when a pelvic organ, like a bladder, drops or prolapses from its normal location in the lower belly and pushes against the walls of a woman’s vagina. This could happen when the muscles that hold the pelvic organs in place become weak or stretched  after childbirth. This condition can be painful or uncomfortable. It is not usually a health problem, but it can become worse over time. In some cases, the treatment is conservative with exercise and weight loss.  In others, surgery becomes necessary using the transvaginal mesh to support the organs in place. 

Additionally, stress urinary incontinence is the involuntary leaking of urine associated with an increase in abdominal pressure that can be caused by straining, physical activity, coughing or sneezing.

In July 2011, the FDA issued a safety update concerning “serious complications associated with transvaginal placement of surgical mesh for pelvic organ prolapse.”

Most of the reported complications dealt with erosion of the mesh material or contraction of mesh material. Both of these defects in the mesh can lead to severe pelvic pain or painful sexual intercourse. Other complications include organ perforation, bleeding, urinary incontinence and infection, which can lead to additional surgeries.

These cases will continue in the multidistrict litigation process. There were also similar lawsuits pending against Johnson & Johnson, Boston Scientific and Endo Health Solutions, Inc. related to their manufactured implants that have been known to cause severe health issues for women because of the product degrading and shrinking over time.  In the Cisson case, her lawyers argued that Bard knew well that the plastic-based implants should not be permanently implanted in the body. 

The FDA has reported that the use of the transvaginal placement of surgical mesh has put women at a greater risk for pelvic organ prolapse mesh complications than with other surgical procedures. Complications include mesh erosion, bleeding, urinary problems, vaginal scarring, infection and pain during sex.

In 2012 a California jury found Bard responsible for a woman’s injuries related to an Avaulta implant.  The jury’s verdict of $5.5 million was reduced by California state law to $3.6 million. There are other defective vaginal mesh implant cases awaiting trials around the country.

Donna Cisson, et al. v. C.R. Bard, Inc., No. 2:11-195, S.D.W. Va.

Kreisman Law Offices has been handling medical device defect cases, such as vaginal mesh implant defects,  for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 37 years in and around Chicago, Cook County, Illinois and its surrounding areas, including Bensenville, Schaumburg, Rolling Meadows, Evanston, Wilmette, Richton Park, Elmwood Park, Elmhurst, Chicago (Roscoe Village, Bridgeport, Canaryville, East Chatham, Albany Park)  and Vernon Hills, Ill.

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Continuity of care is paramount in patient healthcare. The goal is always to give the patient the best medical care while at the same time reduce medical errors. For the last 20 years hospitals and physicians have been using electronic health records (EHR).

Although the intent was noble, EHR has caused serious and even catastrophic injury and harm to patients because of poorly written software programs for healthcare providers. Sometimes the medical recording software does not allow for certain medical conditions, treatments and tests. In those cases, the medical providers simply use the drop down or other shortcut to comply with the entry requirements.

It used to be that narrative nursing notes would be important in providing details of patient care. But in most hospital settings, nurses simply use default screens on a computer to make their entries. Physicians often are not able to read the nurses’ remarks or notes. 

Even today, most hospitals have a mix of handwritten notes and electronic entries, which tend to be burdensome and very difficult to interpret. 

In the end the issue is compatibility of electronic health records. Many companies produce the software for hospital and outpatient medical care. Most of these programs are not integrated with other healthcare software. Some hospitals even use multiple software systems, which differ from department to department. For example, the emergency department may use a different program than the intensive care unit. The billing format would likewise not be integrated with the same software at some facilities.

The audit trail is a useful key for interpreting electronic medical records. The patient has a right to look at his or her actual screen shots of electronic medical records through a portal. As of 2003, the federal statute, 45 CFR §164.3165, mandates healthcare facilities to maintain the electronic record, including the audit trail for six years from the date of creation. 

The audit trail allows healthcare providers and others to match the entries with those who have accessed the patient’s medical records. The audit trail remains an essential tool of medical records. It is not just the back-up to medical records, but it contains the patient’s vital information. The audit trail may show amendments to the patient’s final medical records. For example, if a radiologist interpreted an MRI, the electronic health record would show the date and time the study was taken and the date it was interpreted. It also would show in the records the dictated interpretation by the radiologist. But the audit trail would also show who accessed the radiology films and when. The audit trail would show the name of the technician who may have logged into the system to review that MRI. It would also include the name of the person who viewed the record. 

In summary, the audit trail is a very useful back-up and tool to verify hospital record entries.  Given the increasing use of electronic health records, managing all of the data can be processed with the use of audit trail documents. 

It is a well-known fact that medical errors involve miscommunication between healthcare providers. This happens when the responsibility for a patient is passed off to another healthcare provider. The medical records serve as the resource to make sure that the correct patient information is provided to the next caregiver. When the electronic medical records fail to be accessible or complete, medical errors occur more frequently. In some instances, the failure to keep correct medical records leads to serious patient injuries and death to innocent individuals. These negligent acts can be eliminated with careful recordkeeping and the use of the audit trail.

Kreisman Law Offices has been handling birth injury cases, medical negligence cases and nursing home abuse injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Winnetka, Antioch, Deerfield, Rolling Meadows, Chicago (Jackson Park), Justice, Round Lake Beach, Chicago (Lakeview), Tinley Park, Itasca, Calumet City, Westchester, Waukegan, Joliet, St. Charles and Geneva, Ill.

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A confidential settlement was reached with a hospital emergency room and doctors after a 58-year-old man underwent emergency surgery. The man went to the hospital emergency room after dislocating his hip prosthesis. During the emergency surgery, the attending anesthesiologist attempted unsuccessfully to place an endotracheal tube. 

The man, Doe, required an emergency tracheotomy.

Doe suffered oxygen loss resulting in a hypoxia brain injury because of the lack of oxygen. After being removed from life support, Doe was transferred to hospice where he later died. Doe was survived by his wife and two adult children.

Doe’s family sued the medical providers claiming that their choosing not to properly handle a difficult airway presentation by performing an awake fiber optic intubation was the cause of his death. 

The family also claimed that the defendant physicians and hospital were negligent for deviating from the American Society of Anesthesiologist’s recommended airway practice guidelines.

Before trial, the case settled for $1.5 million to $2 million.

Kreisman Law Offices has been handling medical negligence cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Chicago (Uptown), Chicago (Andersonville), Chicago (Lincoln Square), Chicago (Albany Park), Schiller Park, River Grove, Oak Park, Deerfield, Wheeling, Riverside, Chicago (Brighton Park), Blue Island, Worth and Harvey, Ill.

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In a 9^th Circuit decision handed down in January 2013, the court of appeals found that the Medical Device Amendments (MDA) to the Federal Food, Drug and Cosmetics Act were not a wedge to prevent a plaintiff from making a state negligence claim against Medtronic. In a series of previous cases dating back to 2008, defendants, manufacturers and distributors of medical devices were armed with preemption defenses as a result of the cases of Riegel v. Medtronic, Inc. and bolstered by Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal.  Because of the conflicts in the different U.S. Circuit Courts, there is a good possibility that the U.S. Supreme Court will take up these cases to clarify this litigation and rectify the conflict in the districts.

In the Stengel v. Medtronic case, the 9^th Circuit held that the plaintiff’s claim of state law negligence for the defendant’s choosing not to report known risks of its product to the FDA, was not expressly nor impliedly preempted by the Medical Device Amendments to the Federal Food, Drug and Cosmetic Act.

In the Stengel case, Stengel had a Medtronic pump implanted in his abdomen to control pain he had in his back. Unfortunately, an inflammatory mass formed at the tip of the pump’s catheter that caused permanent paraplegia. 

According to the court of appeals’ analysis, before Stengel was paralyzed, Medtronic had known of the risk of paralysis, but chose not to inform the FDA, notwithstanding its obligations under the MDA to do that.

The risks associated with paralysis were known to Medtronic and one of its facilities, which had been inspected in late 2006 and early 2007.  A “warning letter was sent to Medtronic in July 2007” stating that the company had misbranded its Class III device by concealing known risks. Medtronic sent a “medical device correction” letter to doctors in January 2008 and then recalled the pump a few months after that. 

In a 5^th Circuit case of Hughes v. Boston Scientific Corp., 631 F.3d at 762, 765-766, the plaintiff alleged that Boston Scientific had “failed to comply with the FDA’s medical device reporting (MDR) regulations, which require a manufacturer of a Class III device to report incidents in which the device may have caused or contributed to a death or serious injury, or malfunction in such a way that would likely cause or contribute to death or a serious injury if the malfunction recurred.”  In that case, the plaintiff was severely burned when the Boston Scientific product leaked during a procedure.

Again, it was learned through discovery that there were reportable events that similarly caused injury to patients that had not been communicated to the FDA. In Hughes the discovery revealed that Boston Scientific had been previously directed by the FDA to change its reporting process and that when the change took place, a significant increase in the number of reported burn incidents was apparent. 

In Hughes, the 6^th Circuit found that the plaintiff’s failure to warn claim was not expressly preempted because the claim was “parallel” to the FDA requirements.

With these two court of appeals decisions, Stengel and Hughes, there is now an opening for injured patients by medical devices to avoid a preemption under certain circumstances. Because there is a split in the circuits, the Supreme Court may soon take up an appealedl case to resolve the conflict. 

Stengel v. Medtronic, Inc., 704 F.3d 1224 (9^th Cir. 2013). 

Kreisman Law Offices has been handling medical device lawsuits, pharmaceutical defect cases and medical negligence for individuals and families who have been harmed, injured or died as a result of medical device defects and pharmaceutical defects for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Chicago (Beverly, Washington Heights, Pullman, Lake Calumet, Washington Park, Bronzeville, West Loop), Bellwood, Hillside, Westchester, Villa Park, Western Springs and Palos Heights, Ill.

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Virginia Gettys was admitted to St. Joseph’s Hospital in Highland, Ill., with abdominal pain, abdominal distension and a report of bloody stools. This followed a recent colonoscopy. Gettys was admitted to the hospital on Jan. 14, 2004. 

The defendant, Dr. Jose Diaz, a general surgeon, performed an exploratory laparotomy to see the cause of Gettys’ symptoms. Dr. Diaz found nothing wrong. 

Gettys, 43, was transferred to another hospital where she died just four days later. She was survived by her husband and children.

An autopsy showed that her death was due to sepsis caused by kidney infection. The family filed a lawsuit against Dr. Diaz for his negligence in performing an unnecessary surgery, the laparotomy, and for choosing not to diagnose the kidney infection. 

At the trial, Dr. Diaz asserted that he met the medical standard of care in that the surgery was appropriate and necessary for this patient. This case had been previously tried in 2009, when a jury verdict for the defendant was also entered. The case was retried in March 2013. 

The jury returned the same verdict in favor of Dr. Diaz, finding that he was not negligent. 

Estate of Virginia Gettys v. Jose A. Diaz, Jr., M.D., No. 04 L 1427 (Madison County, Illinois). 

Kreisman Law Offices has been handling medical negligence trials, birth injury cases and nursing home abuse cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Glendale Heights, Park Ridge, Wilmette, Evergreen Park, Dolton, Calumet City, Oak Forest, Melrose Park, Chicago (Belmont Heights), Chicago (Austin), Cicero, Berwyn, Chicago (Marquette Park), Bedford Park, Hickory Hills and Countryside, Ill.

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