On Feb. 13, 2008, Richard Potrawski was taken by ambulance to Little Company of Mary Hospital in Evergreen Park, Ill., after suffering a head injury during a slip and fall on ice.  Mr. Potrawski was brought to the emergency room at 12:30 pm.  He had a large contusion above his right eye and a medical history of congestive heart failure as well as atrial fibrillation for which he was taking Coumadin, a blood thinner.

Mr. Potrawski had the potential for a brain bleed, but the defendant ER physician, Dr. Melissa Uribes ordered a CT scan which was done at 2:30 pm.  A scan revealed a 1-cm left-sided subdural hematoma.

Little Company of Mary Hospital did not have a neurosurgeon on staff, so Dr. Uribes took steps to find a hospital with neurosurgical services that would admit Mr. Potrawski. 

Dr. Richard Temes at Rush University Medical Center agreed to take transfer of the patient. He  instructed Dr. Uribes to obtain the patient’s coagulation status and administer one unit of fresh frozen plasma to start the reversal of his anticoagulation before the transfer. 

Little Company of Mary Hospital nursing staff requested an ambulance at 2:30 pm.  The fresh frozen plasma was brought to the ER at 4:30 pm, but the ambulance  had not arrived.  At that point, Dr. Uribes decided to hold off the plasma because it would have delayed transport to Rush.  After the ambulance finally arrived, the plasma was sent to Rush with Mr. Potrawski.  Mr. Potrawski arrived at Rush’s neuro-intensive care unit around 6:40 that evening.

Mr. Potrawski suffered a brain hemorrhage sometime before 8:30 pm.  Surgery was done around 9 pm to evacuate the subdural hematoma.  However, Mr. Potrawski never recovered and died eleven days later on Feb. 24, 2008.

The Potrawski family alleged that Dr. Uribes deviated from the standard of care by failing to expedite the CT scan of the brain when it was first ordered at 12:30 pm and choosing not to expedite the order for plasma.  In addition, it was asserted by the family that Dr, Uribes chose not to make sure that transportation to Rush was done immediately, which led to Mr. Potrawski’s death.

The defendants asserted that the patient was neurologically stable at all times at Little Company of Mary Hospital and that there was no reason for expediting the CT scan. Defendants also said the fresh frozen plasma would not have been processed any faster than it was and the contended delay in the ambulance was not the emergency department or the physician’s fault.  The jury considered this case for just 45 minutes before reaching a verdict in favor of Dr. Uribes and the emergency services corporation that she worked under.

The demand to settle before trial was $2 million, which was the insurance policy limits.  The jury was asked to return a verdict of $5 million.  The offer to settle the case before trial was $0.

Estate of Richard Potrawski, deceased v. Evergreen Emergency Services, Ltd. and Dr. Melissa Uribes, No. 08 L 11066 (Cook 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 a medical provider for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Schaumburg, Itasca, Long Grove, Clarendon Hills, Chicago (Lincoln Park, Back of the Yards, Englewood, Hegewisch, East Side, Rogers Park), Palos Heights, Rosemont and Round Lake Beach, Ill.

Related blog posts:

Cook County Verdict for Physicians in Death Related to Improper Care for Subdural Hematoma

Jury Verdict for Stroke Victim after Doctor Chooses Not to Correctly Diagnose Impending Stroke

Jury Holds For Nursing Home After Head Trauma Causes Fatal Injury – Donegan v. Embassy Care Center

A recent count showed that more than 25,000 transvaginal mesh cases are pending in the Southern District of West Virginia.  These cases involve the vaginal mesh manufacturers C.R. Bard, Inc., American Medical Systems, Inc., Boston Scientific Corp., Ethicon, Inc., Coloplast Corp. and Cook Medical, Inc.

There are several thousand more cases pending in state court cases around the country, including the states of New Jersey, California, the Commonwealth of Massachusetts and Minnesota.  The first round of bellwether trials involving the transvaginal mesh manufacturers Bard, Boston Scientific and AMS are being scheduled in the Southern District of West Virginia. These cases will be tried in November 2013, as well as February and April 2014.  These will be the first of the bellwether trials involving these three defendants.

There have been other bellwether trials against the defendant C.R. Bard. In the first case, Cisson, et al. v. C.R. Bard, Inc., the jury returned a verdict in favor of the plaintiff, Donna Cisson. In a second case involving C.R. Bard, a settlement was reached with the injured party.

A third and fourth trial involving C.R. Bard are slated to start in November 2013.

It is reported that discovery in the multidistrict litigation is ongoing.  These cases involving the transvaginal mesh are mass torts cases.  However, most of the cases are individual personal injury claims against the manufacturers of the defective transvaginal mesh. 

In many of the cases, women have experienced organ perforation, incontinence, pelvic and vaginal pain, infection, bleeding and pain during intercourse. Many of these sufferers of the transvaginal mesh have required corrective surgeries for pelvic organ prolapse (POP) or stress urinary incontinence (SUI) repairs. 

Kreisman Law Offices has been handling mass tort claims, including those injured by defective transvaginal mesh and pharmaceutical defect cases for individuals and families who have been harmed, injured or died as a result of these products for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Calumet City, Blue Island, Bensenville, Rolling Meadows, Rosemont, Schiller Park, Elmwood Park, Melrose Park, Chicago (Pullman, Roscoe Village, Lincoln Park, Rogers Park, Chinatown) and Evanston, Ill.

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$2 Million Verdict in Retried Bellwether Transvaginal Mesh Trial Against C.R. Bard, Inc.

Illinois Appellate Court Reverses Medical Malpractice Order Under Reimbursement Provision

Anthony Imparato Sr. arrived at the University of Chicago’s emergency room on March 27, 2005.  It was the one-year anniversary of his wife’s death. He complained of insomnia for five days, depression and financial ruin because of his gambling debt.

Mr. Imparato was 51 and a Chicago firefighter. He was seen in the emergency department by the defendant physician, Dr. Becker, and a psychiatry resident, Dr. Dakwar. Another emergency medicine resident, Derek Timmermann, also saw Mr. Imparato.

The attending psychiatrist, Dr. Phan, consulted with Dr. Dakwar over the telephone. The doctors quoted Mr. Imparato as stating that death had crossed his mind, that he had hit rock bottom and that he had thoughts of suicide. However, the chart showed many times that Mr. Imparato denied suicidal ideations, an intent or plan.

The defendant doctors testified that they offered admission into the psychiatric ward multiple times, but Mr. Imparato declined. 

The defendants then discharged Mr. Imparato with a prescription of Trazodone, an antidepressant which is also used to address sleep problems.

He signed his discharge instructions, which included a psychiatry intake, phone number, instructions for him to return if he had thoughts of suicide and instructions to see his primary care physician for a psych referral.

On March 28, 2005, 17 hours after the discharge, he jumped from the 7^th floor of a parking garage in Hammond, Ind., and died.  Mr. Imparato was survived by a son, Anthony Jr., who was 16 years old at the time.

The family brought this lawsuit contending that Mr. Imparato was at a moderate to high risk of suicide and should have been hospitalized involuntarily. The family also claimed that the discharge instructions were insufficient. 

The defendants argued that the doctors did everything required by the standard of care to assess the patient’s suicide risk. They also said he did not meet the criteria for involuntary admission, and the doctors were required to discharge him due to his multiple reassurances that he was not suicidal, including his refusal of offers to be admitted into the psychiatric ward.

The defendants also maintained that the deceased was more than 50 percent responsible for his own death because he ignored discharge instructions to return if he had thoughts of suicide, he chose not to call the psychiatry intake phone number and he intentionally took his own life.

After 2 days of deliberation, the jury was deadlocked 9 to 3 in favor of plaintiff. Although the case was declared a mistrial, the parties entered into a settlement for $500,000, and the case was dismissed.

The attorneys for the family of Anthony Imparato Sr. were Thomas H. Murphy and Benjamin B. Kelly.

Before trial, the demand to settle the case was $1,800,000. There was no offer to settle before trial.

Estate of Anthony Imparato, Sr. v. University of Chicago Medical Center, et al., No. 07 L 66014 (Cook County, Illinois).

Kreisman Law Offices has been handling medical negligence cases, wrongful death matters 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 Wheaton, Arlington Heights, Skokie, Palos Heights, Chicago Heights, Elmhurst, Vernon Hills, Flossmoor, Tinley Park, Chicago (Jefferson Park, Sauganash) and Inverness, Ill.

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

Settlement Reached in Wrongful Death of Fifty-Eight-Year-Old Man in Airway Presentation Case

Cook County Jury Verdict for Doctor in Death from Undiagnosed Pulmonary Embolism; Estate of K.R., deceased v. Suburban Heights Medical Center, S.C.

A Cook County jury returned a verdict of $314,000 related to the death of John Alexander. Mr. Alexander was diagnosed with bladder cancer in 2002. A CT scan in 2006 showed evidence of a recurrence of the bladder cancer. The CT was ordered by the defendant internist, Philip Kiley, M.D.

Dr. Kiley had requested that his staff forward the CT report by fax to the patient’s treating urologist. In addition, Dr. Kiley claimed that he advised Mr. Alexander to return to the neurologist for further treatment. However, the fax was never sent, and the Alexander family claimed there was never any instruction to follow up with the urologist in 2006. 

Dr. Jerrold Seckler, the urologist, did not learn of the cancer recurrence until a year later. Even with the recurrence of the cancer, Dr. Seckler chose not inform Mr. Alexander and did not initiate any treatment.

Not until 2008 was the diagnosis made of the recurrence of the cancer, and treatment started. By that time the parties all agreed  there was no hope for a cure. 

As a result, John Alexander died at age 65 in October 2009. 

Mr. Alexander was survived by his wife and three adult children. The family claimed that Alexander lost 4.5 years of lost time as a manufacturer’s sales representative.

The lawsuit filed by the family claimed that had Dr. Kiley sent the 2006 CT report as ordered, the urologist would have initiated treatment, and Mr. Alexander would have been cured.

Plaintiff’s medical expert maintained that the chance of cure in 2006 would have been 40-60%. Dr. Seckler and his corporation were sued in a prior lawsuit, but settled for $1.95 million. After that case settled, this cause of action against Dr. Kiley and his practice was filed.

The defendants argued that even if Dr. Seckler had received this CT report in 2006, the outcome would have been the same because Dr. Seckler would have concluded that the recurrence was a death sentence, just as he did in 2007. The defendants maintained that Dr. Seckler would have neither told the patient nor recommended further medical treatment.

The defendants’ experts insisted that the statistical chances of cure in 2006 were very slim (less than 10%), so that regardless of what might have been done in the year 2006, Mr. Alexander would have suffered and died from the recurrent metastatic bladder cancer. 

The defendants admitted that there had been a mistake by an agent of Dr. Kiley’s medical corporation regarding the CT report, and the trial judge directed a finding of negligence against the corporation at the close of the evidence.

The Alexander family attorney sought to include “loss chance” language in the jury instructions as an element of damages, while the defendants proposed Holton instructions (modified IPI 30.04.03, 30.04.04), which would have allowed the reduction of any award based upon the likelihood of plaintiff’s damages would have happened  in the absence of negligence.

The trial judge ruled that Illinois has not adopted a standard jury instruction or case law that would require the jury to reduce a verdict as in a case of an increased risk of future harm. The judge therefore allowed plaintiff to argue loss chance and allowed the defendants to argue to the jury that they may consider the likelihood of plaintiff’s damages in the absence of negligence. 

The defendants contended that there should be no verdict against Dr. Kiley, no award on the wrongful death claim and if any verdict for the Alexander family, it should be $250,500 on the survival count for the corporation’s directed negligence.There are post-trial motions pending. The defendants have sought to have the verdict set off by the prior settlement with Dr. Seckler and his corporation.

The attorneys for the Alexander family were David A. Axelrod and Jason M. Kleinman. 

The jury’s verdict of $314,000 against the Dr. Kiley corporation, Adult Care Specialist, only, was made up of the following damages:

• $100,000 for survival pain and suffering;
• $100,000 for medical expenses; and
• $114,000 for lost wages.

The jury found that Dr. Kiley was not responsible for the injury and death of John  Alexander.    

Estate of John Alexander v. Dr. Philip J. Kiley, et al., No. 10 L 82 (Cook County, Illinois).

Kreisman Law Offices has been handling medical negligence cases, wrongful death matters 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 Rosemont, Merrionette Park, Chicago (Marquette Park, Garfield Park, Hegewisch, Lincoln Square), Plainview, Schaumburg, Lincolnshire and Lincolnwood, Ill.

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Nereida Sepulveda was an 80-year-old retiree who underwent a bilateral knee replacement surgery at Advocate Illinois Masonic Medical Center on Nov. 9, 2009. The surgery was performed by an orthopedic surgeon, Dr. David Hoffman. Sepulveda suffered an artery occlusion in the right leg as a complication of the procedure. The defendant, Dr. Iyer, was called for a vascular consult later that afternoon. 

Because Sepulveda complained of chest pain, the hospitalist would not permit any additional surgery on the right leg until he had ruled out a heart attack. Dr. Iyer then had to wait to obtain surgical clearance.

The next afternoon, Nov. 10, 2009, Dr. Iyer received medical clearance to do the surgery but decided to postpone the vascular surgery until Nov. 13 because the patient’s condition had improved.The surgery was elective and Sepulveda had just eaten.  However, it was noted that on Nov. 11, 2009, Sepulveda’s condition had worsened, and she suffered a foot drop. Dr. Iyer performed an 8-hour revascularization procedure to repair the right popliteal artery that day. 

The surgery was unsuccessful, and amputation of the right leg was recommended on Nov. 13. Plaintiff was diagnosed with Heparin-induced thrombocytopenia syndrome, lower than normal platelet count in the blood, on Nov. 16, and the right leg was amputated above the knee on Nov. 24, 2009.

It was maintained by the plaintiff that Dr. Iyer deviated from the standard of care on Nov. 10 by choosing not to keep the plaintiff on no food of fluids by mouth and choosing not perform surgery that same day once he was given medical clearance. 

On the other hand, the defendants argued that the sole proximate cause of the plaintiff’s injury was either the orthopedic surgeon causing the popliteal artery injury during the knee replacement or the subsequent development of Heparin-induced thrombocytopenia, which caused clots in the right leg. The revascularization surgery was also unsuccessful due to intraoperative clotting caused by the thrombocytopenia and that plaintiff most likely would have lost her leg anyway regardless of when the surgery was done due to the nature and extent of the artery injury and her pre-existing vascular disease.

Dr. Iyer also contended that his surgery was performed timely. Illinois Masonic Medical Center settled out on the apparent agency claim prior to the trial. Sepulveda does not speak English and testified through a Spanish interpreter. Because of her age, she was unable to recall most of the events that took place leading up to her amputation. 

The demand to settle the case before trial was $1 million. The jury was asked to return a verdict of $1,300,000. The offer to settle by the defendants was zero dollars. 

The jury’s verdict of $600,000 as to the defendants Dr. Iyer and his medical practice was made up of the following damages:

• $150,000 for past medical expenses;
• $250,000 for past and future loss of normal life;
• $125,000 for past pain and suffering; and
• $75,000 for disfigurement.  

The attorneys representing Sepulveda were Jeffrey Schulkin and Sharon Kobrin of Munday & Nathan.

Nereida Sepulveda v. Dr. Dalasubramanian S. Iyer, et al., No. 10 L 10570 (Cook County, Illinois).

Kreisman Law Offices has been handling medical negligence cases, birth injuries and brain 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 Chicago (East Village, Fulton River District, Greektown, Gold Coast, Garfield Ridge, Humboldt Park, Lincoln Park), Berwyn, Bolingbrook, Crystal Lake, Des Plaines, Round Lake Beach, Waukegan, Joliet, Romeoville, Evergreen Park, Elmhurst, Elgin, Aurora and Evanston, Ill.

Related blog posts:

Illinois Jury Verdict for Doctors in Bowel Perforation, Sepsis, Death Case

Cook County Verdict for Physicians in Death Related to Improper Care for Subdural Hematoma

$595,000 Cook County Jury Verdict in Medical Malpractice Foot Amputation Case

There are more than 2,000 cases filed in the Actos Multidistrict Litigation (MDL) pending before a United States District Court judge in the Western District of Louisiana. The Actos MDL bellwether cases involve identifying two of the best plaintiff cases and a third case selected by the defendant Takeda Pharmaceuticals. Takeda is the manufacturer of Actos, which has been associated with bladder cancer. Actos is in a class of insulin-sensitizing drugs known as Thiazolidinediones, which was approved to treat Type II diabetes.

The Western District of Louisiana bellwether trials are scheduled to start Jan. 27, 2014;  a second will begin in April 2014.

There are about 3,000 cases pending in the Circuit Court of Cook County, Ill.  The bellwether process here is under way.  The cases in Chicago’s Circuit Court are being handled by Judge Deborah Dooling. 

Earlier in 2013, the first of the Actos trials was concluded in California state court.  The jury found in favor of the plaintiff and against Takeda for failure to warn, awarding $6.5 million in damages. However, the court found in post-trial motions that one of the plaintiff’s witnesses should have been excluded and overturned the damage award.

A second Actos trial was started in August 2013 in Baltimore that resulted in a $1.7 million verdict in favor the plaintiff. That verdict too was overturned because of the jury’s finding that the plaintiff was contributory negligent. Because the verdict was inconsistent, the verdict was vacated in its entirety. A new trial will be set.

Kreisman Law Offices has been handling pharmaceutical defect cases for individuals and families including those cases associated with the use of Actos, Yaz, and Yasmin for more than 37 years, in and around Chicago, Cook County and its surrounding areas, including Brookfield, Riverside, Bedford Park, Justice, Hickory Hills, Blue Island, Calumet Park, Riverdale, Dolton, Calumet City, Chicago (West Town, Little Italy, Chinatown, Washington Park, Burnside, Pill Hill), Villa Park and Oakbrook Terrace, Ill.

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On May 27, 2005, Dennis Swallow  came to the office of the defendant internist, Dr. Bryan Moline, for preoperative clearance for an upcoming orthopedic hip surgery. Swallow was 51 years old at the time and had a history of a neurological event in 1996. He was taking 325 mg of aspirin daily as a stroke preventative measure since that time. Swallow also had a history of severe migraine headaches for which he was receiving treatment from the Diamond Headache Clinic. 

Dr. Moline told Swallow to stop taking aspirin before the planned surgery and cleared him for the surgery, which was done by Dr. Mitchell Sheinkop at Rush Oak Park Hospital on June 15, 2005.

After the hip surgery, Swallow suffered a severe embolic stroke the following day, June 16, 2005, which caused severe disability with inability to talk or care for himself.  He died on Sept. 11, 2009.

Swallow’s family brought a lawsuit seeking damages for his medical expenses, pain and suffering, loss of normal life and loss of services.

The family argued that Swallow was a high-risk patient for stroke.Furthermore, the family said Dr. Moline chose not to take a proper history, he should not have cleared Swallow for the surgery, he should have consulted a neurologist and he should have bridged the patient with antithrombotic medications before and after the hip surgery.

The defendants maintained that it was appropriate for Dr. Moline to clear the patient for surgery, there was no need for a consultation with a neurologist and prescribing antithrombotic medications before and after surgery was not necessary. Last, the defendants argued that the patient’s stroke was unpredictable and unavoidable.

The jury found in favor of Dr. Moline and his practice, Rush Oak Park Physicians Group and against the family of Dennis Swallow.

Estate of Dennis Swallow, deceased v. Dr. Bryan G. Moline, Rush Oak Park Physicians Group, Division of Rush Oak Park Hospital, Inc., No. 07 L 5672 (Cook County, Illinois).

Kreisman Law Offices has been handling medical negligence cases, brain injury cases 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 Matteson, Hillside, Elmwood Park, Rosemont, Romeoville, Orland Park, Deerfield, Evanston, Franklin Park and Chicago (Albany Park), Ill.

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Jury Verdict for Stroke Victim after Doctor Chooses Not to Correctly Diagnose Impending Stroke

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$20 Million Paid by Cook County to Family of Boy Who Suffered Brain Damage; Payment will Ensure Lifelong Care

The U.S. Court of Appeals for the Seventh Circuit in Chicago has affirmed a district court’s order dismissing a medical negligence case brought against the Department of Veteran Affairs.

Jerome Augutis underwent reconstructive surgery on his right foot at Illinois’ Edward Hines Jr. Veterans Administration Hospital in July 2006. Because of complications during the surgery, the doctors amputated Augutis’s right leg below the knee on Sept. 22, 2006. 

Augutis maintained that the amputation was the result of negligent treatment. He filed an administrative complaint with the Department of Veteran Affairs in July 2006. His claim was denied in September 2010 and Augutis filed a request for reconsideration in March 2011. 

The Department of Veteran Affairs wrote to Augutis to tell him that although it had not finished reconsidering his claim, it was not possible for Augutis to file suit in the federal district court because of the lapse of time.  The letter also noted that such a claim was governed by a combination of federal and state laws. The letter also pointed out that in some states the statute of repose may limit or bar a lawsuit.

The department formally denied his request for reconsideration in October 2011. 

On April 3, 2012, Augutis filed a lawsuit in federal district court. At this point, it had been more than five years since the alleged medical malpractice occurred, but less than six months since the denial of reconsideration by the department. 

The Justice Department moved for the dismissal on the grounds that Illinois law required medical-malpractice claims to be filed within four years of the date of the malpractice. The district court granted the motion to dismiss and Augutis appealed. 

In the appellate court’s decision, it pointed out that claimants must bring their claims to the appropriate government agency within two years of the date that the claim accrued in order to take advantage of the limited waiver of sovereign immunity provided by the Federal Tort Claims Act (FTCA).

If the governmental agency fails to make a final disposition within six months of the request, the claim is considered denied and the claimant is then allowed to file suit in the federal court. Alternatively, the claimant can give the agency more time to resolve the claim.  If denial eventually occurs, the claimant then has another six months in which to file his or her lawsuit.

However, the panel continued, because the FTCA’s jurisdictional grant covers only circumstances for a private person, where the United States would be liable to the claimant in accordance with the law of the state where the act occurred, substantive tort law of the state may act to bar the suit.

Under Illinois law ILCS 5/13-212(a) and the case of Orlak v. Loyola Univ. Health System the court of appeals stated that Illinois courts have consistently construed the four-year limit on medical-malpractice claims as the statute of repose and therefore, a substantive limit on liability not a procedural bar to suit.

Augutis argued that the four-year limit was not substantive law because Illinois allowed the limits to be tolled by fraudulent concealment, while statutes of repose traditionally begin to run regardless of discovery.

The court rejected that argument noting that Illinois courts have recognized the logical inconsistency in tolling the four-year limit in cases of fraudulent concealment, but nevertheless, still treated the limit as a statute of repose.

In addition, Augutis maintained that even if the Illinois statute, Section 2-12, was a statute of repose, it was pre-empted by the FTCA’s procedural scheme.

The court of appeals rejected that item stating that the FTCA does not expressly pre-empt a state’s statute of repose and does not impliedly pre-empt state substantive law, but rather expressly incorporates it.

Accordingly, the U.S. Court of Appeals affirmed the federal district court’s dismissal because Augutis could have satisfied the requirements of both the state and federal law by filing the lawsuit earlier. 

Jerome Augutis v. United States, No. 12-3536 (October 9, 2013).

Kreisman Law Offices has been handling medical negligence cases 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 Buffalo Grove, Palatine, Park Ridge, Norridge, Harwood Heights, Oak Park, Cicero, Bedford Park, Evergreen Park, Blue Island and Chicago (Englewood), Ill.

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Jury Verdict for Stroke Victim after Doctor Chooses Not to Correctly Diagnose Impending Stroke

Janelle Jones, 57, underwent a cardiac catherization at Medical Center of Southeast Texas. Jones complained of chest pain before she was discharged. She underwent some testing. Jones was told to follow up with her treating physician in one week or go to the hospital if her pain increased. 

Four days after she was discharged from the hospital, Jones met with her treating cardiologist and complained of shortness of breath, chest pain and increased heart rate. The doctor diagnosed a stomach issue and prescribed medicine.

Four days after that, Jones went to the emergency room at the hospital, where she later died of a fatal heart attack. She was survived by her husband and four children. 

Jones’s husband and family sued the cardiologist, Dr. Abdulla, claiming that he chose not to properly interpret an electrocardiogram taken before Jones’s hospital discharge that showed signs of an impending heart attack. The lawsuit claimed that the hospital chose not to timely treat Jones when she presented to the emergency room with signs and symptoms of cardiac arrest. There was no lost income claimed in the lawsuit. 

The jury’s verdict of $4,510,000 assigned 75 percent of the responsibility to the hospital and the remaining 25 percent of verdict on Dr. Abdulla, the cardiologist.

The attorneys for the Jones family were Clay Dugas and Malachi Daws.

Jones v. Med.Ctr. of S.E. Tex, No. D-186, 807 (Tex.), Jefferson Co. Jud. Dist. June 2013.

Kreisman Law Offices has been handling medical negligence claims, wrongful death actions, birth injury cases and medical negligence lawsuits 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 Naperville, Long Grove, Lindenhurst, Lake Bluff, Mundelein, Midlothian, Oak Park, River Forest, Chicago (Bridgeport, East Side, Back of the Yards), Blue Island and Wheaton, Ill.

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Illinois Jury Awards $4.5 Million in Wrongful Death/Medical Negligence Case

3.1 Million Jury Verdict for Death of Patient Following Heart Procedure; Estate of Teague v. Holy Cross Hospital

Danute Paulaviciene, 57, came to the office of the defendant internist, Dr. Edmund Vizinas, on Dec. 27, 2008 complaining of fever, shortness of breath and poor sleep. She had recently visited the caves in Missouri. On examination, she was noted to have a fever of 100.5 degrees, pulse of 110, respirations of 16 and 94 percent oxygen saturation level.

Dr. Vizinas ordered a chest x-ray, complete blood count and metabolic profile. The patient returned to Dr. Vizinas two days later and told him she was feeling better and had no shortness of breath on exertion. Her temperature was normal. Dr. Vizinas told her that her chest x-ray revealed extensive bilateral infiltrates, her complete blood count was essentially normal with a normal white count and a slight rise in neutrophils and her metabolic profile showed slightly decreased albumin, elevated sedimentation rate, slightly decreased total cholesterol and slightly elevated liver function.

Dr. Vizinas started her on Avelox, an antibiotic given for community acquired pneumonia. On Dec. 31, Paulaviciene’s daughter-in-law checked on her at 4 a.m. and found that she had a fever, but by 6 a.m., it had come down. At 8 a.m. she was coughing but not gasping or having difficulty breathing. However, by 9 a.m., she was extremely short of breath, gasping and unable to speak. She was rushed to Edward Hospital in Naperville, Ill., with severe shortness of breath and 82 percent oxygen saturation levels while on oxygen. She was sent to the ICU at the hospital and placed on a ventilator. Her condition never improved, and she died 11 days later survived by her adult son and a daughter who lives in Lithuania.

The family brought this lawsuit alleging that Dr. Vizinas should have immediately hospitalized Paulaviciene on Dec. 29 and started intravenous antibiotics and if he had done so, she would have received appropriate treatment and oxygen and would have survived.

The defendants, including Dr. Vizinas and his medical practice, argued that Dr. Vizinas gave the patient samples of Avelox on Dec. 29, which was the correct antibiotic for community acquired pneumonia. They also argued that hospitalization was not required because she was feeling better and appeared to be improving with clearer lungs and good color.

The defense also maintained that despite receiving the correct antibiotic, the patient experienced a very rare and sudden explosive event in which the pneumonia bacteria multiplied and released cytokines causing organ damage and death. This is an unpredictable occurrence that happens without warning and has almost always ended with death.  There was nothing the defendant doctor could have done to prevent this sudden catastrophic turn of events. The deceased was a native of Lithuania and spoke very little English.  Dr. Vizinas’ parents were also from Lithuania and he was able to converse with her in her own language.

After considering all of the evidence and testimony, the jury found in favor of Dr. Vizinas and against the family of Paulaviciene.  The demand to settle the case before trial was $1 million, which was the doctor’s insurance policy limit. The jury was asked to return a verdict of $2,600,000. There was no offer from the defendants to settle the case. 

Estate of Danute Paulaviciene v. Dr. Edmund Vizinas, et al., No. 10 L 1517 (Cook County, Ill.).

Kreisman Law Offices has been handling medical negligence cases, wrongful death matters and pharmaceutical defect 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 Heights, Romeoville, Bartlett, Barrington Hills, Highwood, Highland Park, Schiller Park, Richton Park, Rosemont, Evergreen Park and Chicago (Beverly), Ill.

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Jury Finds for Hospital and Doctor in Child’s Undiagnosed Meningitis Hearing Loss Case

A Cook County jury has decided that Northwestern Memorial Hospital was not negligent after a back surgery on 83-year-old JoAnn Smith went wrong. 

On Aug. 5, 2010, Smith underwent an L4-5 microendoscopic foraminotomy and discectomy at Northwestern Memorial Hospital for management of her back pain. After the surgery, she was diagnosed with multiple deep vein thromboses, pulmonary embolism and a blood clot in her right internal jugular vein. Heparin was given to help with the clotting issue.

On Aug. 8, 2010, Smith developed abnormal neurological signs and symptoms. An MRI revealed internal bleeding and cord compression in the cervical, thoracic and lumbar spine. An emergency decompression surgery was done.

The surgery was not successful and she was later diagnosed with T-3 incomplete paraplegia. The past medical expenses for Smith were over $1.2 million, and her future medical expenses were predicted to be $1.8 million.

Smith alleged in her lawsuit that the hospital’s neurosurgical residents deviated from the standard of care by failing to completely discontinue Heparin on Aug. 7, 2010 when her PTT was above 150 and failing to recognize her complaints voiced on Aug. 7 were associated with the spinal bleed. PTT is partial thromboplastin time, which is a blood test that determines how long it would take for a patient’s blood to clot. The PTT test determines whether the patient has bleeding or clotting issues. The normal values for PTT are between 25-35 seconds. Smith’s PTT of 150 was alarming for clotting.

The defendant contended that the hospital’s residents properly managed Smith’s Heparin and examined her throughout the course of her hospitalization. Her Aug. 7 pain complaints were not symptomatic of a spinal bleed. The hospital also asserted that Smith did not show any neurological deficits until 6 a.m. on Aug. 8, at which time she was assessed and identified as having developed a bleed. There was no delay in diagnosis of complications, and all treatments that were done by the hospital met the standard of care. The jury agreed and found in favor of Northwestern Memorial Hospital and against Smith and her family.

Before trial, the demand to settle was $8 million. There was an offer made of $2 million, which apparently was rejected by Smith and her counsel.

JoAnn Smith, et al. v. Northwestern Memorial Hospital, No. 12 L 8729 (Cook County, Illinois).

Kreisman Law Offices has been handling medical negligence cases, birth injury matters 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 Chicago (Bridgeport, Bucktown, Chinatown, Fulton River District, Galewood, Greektown, Irving Park, Jefferson Park, McKinley Park, North Park, Pilsen, Printers Row), Barrington Hills, Batavia, Bolingbrook, Burbank, Downers Grove, Evanston, Frankfort, Glen Ellyn and Homer Glen, Ill.

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Kody Myrick, 17, suddenly slumped over at his job and had difficulty speaking. He was brought to Bakersfield Memorial Hospital’s emergency department. A nurse there made note of a possible stroke. Then an emergency room physician diagnosed profound neurological deficits and ordered a brain CT scan. The scan results showed an abnormality.

Four hours after the onset of symptoms, Kody was seen by a hospitalist to arrange admission to the hospital. The doctor called in admission orders and included a diagnosis of possible stroke. However, Kody was not seen by a doctor for the remainder of that night.

Kody’s neurological condition worsened suddenly the next morning. He was later diagnosed as having an ischemic stroke, which resulted in significant damage to his brain stem. Kody now suffers incomplete tetraplegia and requires 24-hour care.

His father brought suit against the hospital’s emergency room physician and the doctor’s practice group under a vicarious liability theory, all of which alleged medical negligence in choosing not to correctly diagnose and treat Kody’s impending ischemic stroke.

The lawsuit also alleged that the doctors should have obtained a neurological consultation and treated Kody’s condition as an emergency. There was no claim of lost income.

All of the other defendants, except for the hospitalist, settled before trial. The jury returned a verdict of $38.61 million finding that the hospitalist was 40 percent at fault. The emergency room physician was 30 percent responsible and a non-party radiologist 30 percent responsible.

The attorneys for Mr. Myrick were Melinda Derish and Conor Kelly.

Myrick v. Hansa, No. CGC-1 1-515329 (Cal., San Francisco Co. Super. May 17, 2013).

Kreisman Law Offices has been handling hospital negligence cases, medical negligence cases, physician negligence cases 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 Woodstock, Winnetka, Westmont, Western Springs, Worth, Tinley Park, Skokie, Park Ridge, Palatine, Northlake, Lombard, Lockport, Lindenhurst, Chicago (West Loop, Wrigleyville, Ukrainian Village, Streeterville, South Shore, Rogers Park, River North, Old Town), Ill.

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South Korean immigrant Young Bahng, 60, was admitted to the University of Chicago Hospital on April 18, 2006. He was there to undergo a live-donor liver transplant from his son. Bahng was self-employed in the conveyor system business. He was suffering from end stage liver disease as a result of having hepatitis B since 1990. 

On April 19, 2006 in the early morning hours, Bahng fell in his hospital room while attempting to walk to the urinal. He struck his head in the fall and sustained a massive subdural hematoma and intracranial bleed, which required immediate surgery.

By the time the surgery was under way, Bahng had sustained profound brain damage and was placed on life support immediately following a craniectomy. He died as a result of his brain trauma on April 25, 2006 and was survived by his wife and children.

The family filed a lawsuit contending that the nurses chose not to perform an initial patient needs assessment at the time of his admission as required by the hospital rules and also chose not to perform a timely and adequate Morse fall risk assessment. The fall risk assessment would have identified his high risk of falling. Having known that, the hospital staff would have placed him on a high fall risk intervention and would have instructed him not to walk without assistance.

Bahng’s high fall risk was due to weakness, tremors, confusion, shuffling gait and decreased platelet count. In addition, before going to bed on April 18, 2006, Bahng was given a combination of medications, which had side effects and placed him at increased risk for falling. Bahng had complained of severe leg cramps around midnight. Bahng was given Neurontin, which causes drowsiness. 

Furthermore, the family’s case identified the fact that Bahng had been a high risk for falling during the four prior hospitalizations that he had, all of which were within 5 months. 

The defendant argued that the nurses met the appropriate standard of care. The defendant also maintained that the Morse fall risk assessment would not have been the proximate cause of Bahng’s injuries. Further, the University of Chicago Medical Center contended that Bahng no longer had the problems and conditions that previously placed him in that high risk and therefore, high fall risk intervention protocol was not necessary.

Before trial the offer to settle was $100,000. The jury’s verdict of $1,698,312 was made up of the following damages:

• $893,000 for loss of society;
• $450,000 for loss of support;
• $84,000 for loss of other benefits;
• $272,312 for medical expenses.

The attorneys for the parties submitted a special interrogatory to the jury which read:  “Was the sole proximate cause of the decedent’s death something other than the nursing care that plaintiff criticizes?”  Answer:  “No.”

The attorneys for the Bahng family were Joseph Miroballi, Scott Rudin, Lauren Levin and Danielle Dombrow.

Estate of Young Bahng, deceased v. University of Chicago Medical Center, No. 07 L 9885 (Cook 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 a medical provider for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Mount Prospect, Park Ridge, Palos Park, Palatine, Park Forest, Northlake, Round Lake Beach, Joliet, Hillside, Chicago Ridge, Chicago (Uptown, Streeterville, Ukrainian Village, South Shore and River North), Ill.

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Lawsuit About Clearing Patient for Hip Surgery Ends in Defense Verdict

It has been reported that the medical devices that pose the greatest safety risk to patients, including the metal-on-metal hip implants, are allowed into the marketplace without sufficient evaluation for safety and effectiveness.

According to a recent New England Journal of Medicine article, it was found that previously cleared medical devices, including  the metal-on-metal hip implant, were cleared without being fully assessed for safety and effectiveness.

The medical device amendments of 1976 created three classes of devices:  Class I included low-risk devices like a toothbrush; Class II devices were of moderate-risk like an infusion pump; and a Class III medical device would be one that would put a patient at high risk, such as the metal-on-metal hip implants.

The Class III devices were designed to undergo rigorous premarket approval (PMA). That would require clinical studies.

According to this report, some of the Class III devices were permitted to receive “substantial equivalence” temporarily, until the FDA down-classified these devices requiring PMA.

Congress had always intended that Class III devices, such as the metal-on-metal implants, undergo PMA before the product would be introduced to the public. 

However, as late as Dec. 19, 2012, the FDA had still not completed the transition to PMA for high-risk devices. Currently, 19 types of Class III devices, which include the metal-on-metal hip implants, are permitted to be used on patients through the temporary clearance. In other words, the loophole allows medical device manufacturers to market and sell the devices that are legal without demonstrating safety and effectiveness through clinical studies. Unfortunately, because of this opening, the metal-on-metal hip implants, such as the DePuy ASR XL Acetabular Cup System, received FDA clearance in July 2008 without a clinical study. This medical device has a very high rate of revision surgery at approximately 13 percent, which is more than four times the five-year revision rate for all hip-replacement prostheses combined. 

In 2009, DePuy voluntarily recalled the ASR XL in Australia, citing “declining demand” as the reason. Then in 2010, a worldwide recall was announced because of the high revision rate as reported. 

Because of the procedural flaw, metal-on-metal hips were cleared, but were never shown to be safe and effective. The clinical trial would have likely identified the high revision rate of the ASR, which became evident nine months later when compared to all other total conventional hip prostheses in the Australian Joint Registry.

Americans are at risk when medical devices are implanted or used that enter the marketplace without clinical data showing whether they are safe and effective. Obviously, implanted body parts, such as a metal-on-metal hip implant, are not easily recalled and replaced. 

The Medical Device User Fee and Modernization Act (MDUFMA), passed in 2012, closes the loophole to make it easier for the FDA to reclassify medical devices. The act will reduce the time that it takes the medical device industry to bring safe medical products to the public for safe use.

Kreisman Law Offices has been handling medical negligence matters, medical device defect cases and nursing home abuse 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 Flossmoor, Glenview, Chicago Ridge, Woodridge, Westmont, Willowbrook, Burr Ridge, Brookfield, Elmwood Park, Niles, Bloomingdale, Streamwood, South Barrington, Lake Zurich, Vernon Hills, Libertyville, Gurnee, North Chicago, Crystal Lake, Wauconda, Hawthorne Woods and Lincolnshire, Ill.

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It is estimated that 250,000 people die each year in the United States as a result of medical malpractice according to the U.S. Department of Health and Human Services.  Approximately 80,000 Medicare patients suffer preventable adverse events that contribute to their deaths; as many as half of those deaths are due to emergency room errors. 

In 2003, the nonpartisan Congressional Budget Office stated that “181,000 severe injuries (attributable to medical negligence) occurred in U.S. hospitals [,]”.  These numbers show that medical malpractice deaths have worsened during the past ten years. Despite this increase, state governments and legislatures have tried to impede the amount of money recoverable to injured or killed persons and/or their families as the result of medical malpractice. 

For example, in Missouri, where I have been a member of the bar since 1976, nearly 1/3 of medical malpractice cases involve surgery in some way. The next largest percentage of medical errors reported there is 18.7% for misdiagnosis leading to severe injury or death followed by 13.2% involving falls or injuries during transport of patients. 

Since 1/3 of the medical negligence claims take place during a surgical procedure, it is worth noting that these errors often occur in the last hours of a long shift. Operating room schedules have forced many doctors in facilities to work excessively long shifts, which puts patients at great risk. 

One stunning research report from Johns Hopkins stated that patient safety researchers estimated that surgeons in the United States leave foreign objects like sponges or towels or surgical tools inside a patient’s body after an operation 39 times a week.  The researchers also estimated that the wrong procedure on a patient is done 20 times a week; additionally, the wrong body site was operated on 20 times a week. 

In one recent anecdotal report, a colleague who had a successful hip replacement told me that the preoperative medical assistant identified his right knee as the replacement part that was about to be operated on at this nationally recognized university medical center, when in fact the correct body part was his left hip.  That mistake was not made once, but was made three separate times making my friend and colleague extremely anxious about undergoing this procedure at all. 

Publicity about medical malpractice lawsuits has been uneven, wrongheaded and has misinformed the public for decades. Jury pools and focus group jurors universally believe that lawyers file frivolous medical malpractice lawsuits for profit that drive doctors out of geographic areas and lead to wildly increased insurance premiums for physicians and their assistants. 

The fear that doctors would flee states that lack mandated caps on medical malpractice noneconomic awards is unfounded.  Texas adopted a $250,000 cap on noneconomic medical malpractice claims in 2003.  In a study that was conducted before and after the legislation capping jury verdicts in Texas, it was found that there was no evidence that the number of active Texas physicians is larger now than it would have been without this legislation. There is no correlation between medical malpractice legislation limiting awards and a number of doctors practicing in a state or locality.  It is simply a fallacy to argue that that is the case.

Another often overlooked fact in medical malpractice cases today is that many of the cases that are meritorious because of some egregious medical error causing great harm or death are defended anyway, costing the insurance industry nearly as much in defense costs to their attorneys as it would in indemnity losses. 

The American Medical Association found that the indemnity losses nationally in 2011 were $3.6 billion whereas defense costs were $2.5 billion. There is a practical solution to these numbers. Early agreements for mediation or arbitration stand out as a way to resolve obvious medical errors without the need for lengthy discovery and jury trials.

Another false fact in medical negligence cases is that there are too many medical malpractice lawsuits. In fact, reports universally show that only a small percent of people injured, harmed or killed by medical malpractice incidents make claims. 

In my practice, that fact stands out in one particular case in which the wife and a mother of four adult children at age 50 died because of the negligence of a neurologist and emergency room physician who chose not to act on the correct diagnosis of a brain tumor.  When the woman returned to the hospital, she was sent away with pain medicine and died that night. When the family met with me several months after her death, the decedent’s husband and the others agreed that had the doctors at the hospital explained what had happened and why it happened, they would have never have sought out the assistance of a lawyer.  After about three years of intensive discovery, which included expert depositions and motion practice, on the eve of trial the case settled for a fair and reasonable sum. The case should have been settled years before without all of the time and expense that was made necessary by the doctors and hospital involved.

It is a false assumption that some believe that there are many lawyers around the country filing medical negligence lawsuits without merit. That simply is untrue principally for the reason that plaintiffs’ lawyers work on a contingency fee basis and advance all the costs of preparing a case for trial. There is no incentive to take on a bad case, a case with limited damages or even a weak case. 

Although a study of plaintiffs’ lawyers concentrating in medical malpractice routinely “reject 80% or more of the requests for representation they receive,” I would say in my practice, the percentage is closer to 98% of inquiries.  In addition, cases that have limited expected damages — less than $200,000 — or have a statute of limitations date approaching, are always rejected. In states where damage caps in medical malpractice cases are in place, lawyers are even more reluctant to take on cases.  I personally know lawyers in Texas, California and other states who refuse medical malpractice cases altogether. 

The law in states attempting to cap medical malpractice lawsuits and damages had been stricken down in Illinois, Missouri, Alabama, Georgia, New Hampshire, North Dakota, Oregon, Washington and Wisconsin.  However, at least 35 states have some limitation on medical malpractice damages. 

The litigation of medical malpractice cases is not the problem.  The notion that 250,000 individuals die in hospitals each year is the medical malpractice problem that needs attention. What is necessary is that the medical profession take whatever steps are necessary to police its practitioners and to minimize the dangers of errors that could be avoided. Reducing awards to victims of medical malpractice does nothing to help in the need for competency in America’s hospitals, clinics and other medical facilities. Healthcare costs and consumer healthcare insurance premiums have continued to rise even as medical malpractice cases decline in number and in value. The awards of medical malpractice for those injured or killed have little or nothing to do with the direct costs of national  healthcare.

Kreisman Law Offices has been handling medical negligence case, medical malpractice claims, nursing home abuse cases, birth injury cases and brain injury 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 Alsip, Midlothian, River Woods, Mount Prospect, Elk Grove Village, Wood Dale, Itasca, Inverness, Hoffman Estates, Streamwood, Roselle, Lincolnshire and Lincolnwood, Ill.

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Medical records in doctor’s offices and hospitals are transitioning or have already transitioned to electronic medical records (EMR).  In fact, the HITECH Act (American Recovery and Reinvestment Act of 2009) was enacted to include incentives and penalties for switching to electronic digital records rather than paper records. 

Lawyers who regularly deal with medical records, whether it be for personal injury cases, workers’ compensation cases, medical negligence cases, Social Security disability cases or other forensic matters, find that there is a vast difference between the written record (sometimes very hard to read) and the electronic record (sometimes difficult to understand).

Behind the use of any digital technology, including digital medical records, is the use of metadata.  Metadata is particularly important as a means of organizing information and finding it when searching. 

For medical records, an electronic file may contain other information that is not part of the medical chart itself. In other words, metadata may contain valuable information about the electronic medical records not seen in the records, such as who logged in, what time and on what date to a patient’s medical chart. 

For example, in discovery in medical malpractice cases, I always ask for the audit trails, which is the metadata log of persons who used a computer to look into a patient’s records.  It might be important in audit trails to learn one way or another if someone tampered with records. It can reveal other important information about a patient’s care.

Of course, medical records are sensitive materials and protected health information under the Health Insurance Portability and Accountability Act of 1996 (HIPAA).  Under HIPAA, there are a set of rules that safeguard patient information, whether the records are stored on computers or paper records. For purposes of litigation when medical records are relevant, protected health information (PHI) is designated as electronically stored information (ESI).

ESI can be stored on flash drives, CD/DVD disks, media or on hard drives and SIM cards. Some ESI can be stored on devices that can be deleted or destroyed. That would include hard drives and SIM cards.  In addition, data could be stored on offline backup/archival (CDs, DVDs) and “in the cloud” where the material is stored on an offsite server. 

Patient protected health information may be transmitted from device to device, including the use of smart phones and personal digital assistants (PDAs).

Increasingly, doctors are carrying or have the ability to log in to patient records by way of smart phones and PDAs. Technology has swept away some of the old methods of keeping medical records, particularly patient records now stored on digital devices; however, the need for confidentiality remains. 

The metadata that is generated by those who carry around, log into or otherwise use digital medical records is not seen in the patient’s chart.  However, the audit trail can be obtained in discovery. An audit trail is a record of who, when, where, how and why a person accessed a patient’s medical record. The audit trail would even identify what terminal or device was used to access the records. Some audit trails will show why the medical provider used a computer program or the reason the patient’s medical records were accessed to begin with. 

Metadata such as an audit trail is automatically recorded by the EMR system.  The audit trail is just another way to see whether the patient’s records were altered, changed or modified in some way. In fact, if the audit trail was modified, altered or changed, it would be revealing. The audit trail would also show whether a video record of a surgical procedure, for example, was deleted in part to hide some difficult part of the operation or some other unfortunate event.

Digital imaging and communications in medicine (DICOM) is a standard that allows for the integration of scanners, servers, work stations, printers and network hardware from different manufacturers to access hospital records of a patient.  DICOM was first used in radiology. Because of the different makers of CT scanners and MRI imaging scanners, it was difficult for radiologists to view images on different devices. DICOM data also embeds an identification of the patient within the file so that it can’t be separated or mistaken. 

Under Illinois Supreme Court Rule 201, the general discovery provisions, electronic data is discoverable. That would include all retrievable information in computer storage. Illinois Supreme Court Rule 214 also includes discovery of “Documents, Objects, and Tangible Things,” which includes production of all retrievable information in computer storage in printed form. 

Medical records are admissible as an exception to the hearsay rule.  The new Illinois Rules of Evidence would include computer-generated data as medical records falling within the hearsay exception.

Audit trails and metadata should be admissible — and not as hearsay. Audit trails do not include any human input. There is Illinois law on allowing computer data into evidence. For example, in the case of Bachman v. General Motors, 332 Ill.App.3d 760 (2002), the court allowed the admission of data retrieved from the crashed vehicle’s sensor that was important in that personal injury case.

The fact that hospital and physician records have moved to electronic medical records from paper opens up great possibilities of additional information that was previously unavailable or unattainable. With the wave of changes also comes new law, which lawyers should become acquainted with in retrieving electronic medical records in litigation matters. These records may often times instrumental pieces of evidence in cases.

Kreisman Law Offices has been handling medical negligence cases, 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 38 years in and around Chicago, Cook County and its surrounding areas, including Andersonville (Chicago), Mundelein, Buffalo Grove, Hawthorne Woods, Palatine, Des Plaines, Wood Dale, Bloomingdale, Streamwood, Bensenville, Franklin Park, Lincolnshire, Lincolnwood and Libertyville, Ill.

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There are more than 2,000 cases filed in the Actos Multidistrict Litigation (MDL) pending before a United States District Court judge in the Western District of Louisiana. The Actos MDL bellwether cases involve identifying two of the best plaintiff cases and a third case selected by the defendant Takeda Pharmaceuticals. Takeda is the manufacturer of Actos, which has been associated with bladder cancer. Actos is in a class of insulin-sensitizing drugs known as Thiazolidinediones, which was approved to treat Type II diabetes.

The Western District of Louisiana bellwether trials are scheduled to start Jan. 27, 2014;  a second will begin in April 2014.

There are about 3,000 cases pending in the Circuit Court of Cook County, Ill.  The bellwether process here is under way.  The cases in Chicago’s Circuit Court are being handled by Judge Deborah Dooling. 

Earlier in 2013, the first of the Actos trials was concluded in California state court.  The jury found in favor of the plaintiff and against Takeda for failure to warn, awarding $6.5 million in damages. However, the court found in post-trial motions that one of the plaintiff’s witnesses should have been excluded and overturned the damage award.

A second Actos trial was started in August 2013 in Baltimore that resulted in a $1.7 million verdict in favor the plaintiff. That verdict too was overturned because of the jury’s finding that the plaintiff was contributory negligent. Because the verdict was inconsistent, the verdict was vacated in its entirety. A new trial will be set.

Kreisman Law Offices has been handling pharmaceutical defect cases for individuals and families including those cases associated with the use of Actos, Yaz, and Yasmin for more than 37 years, in and around Chicago, Cook County and its surrounding areas, including Brookfield, Riverside, Bedford Park, Justice, Hickory Hills, Blue Island, Calumet Park, Riverdale, Dolton, Calumet City, Chicago (West Town, Little Italy, Chinatown, Washington Park, Burnside, Pill Hill), Villa Park and Oakbrook Terrace, Ill.

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A confidential settlement was reached wherein a 63-year-old woman’s misdiagnosed lung cancer led to her untimely death. The woman, identified only as Doe, underwent a CT scan while she was hospitalized. This showed a lung lesion that the interpreting radiologist reported as possible cancer. A hospitalist reported these findings to Doe’s primary care physician. 

The primary care physician referred Doe to a pulmonologist but did not tell her that cancer was suspected.  The hospital sent Doe’s CT scan to the pulmonologist, who reported to the primary care physician that part of the scan was missing. The primary care physician allegedly said that he would provide the missing film. However, there was no followup. The pulmonologist also chose not tell Doe that cancer was suspected when the two subsequently met.

Five years later, Doe developed shortness of breath and other ominous symptoms. Doe was diagnosed with having Stage IV lung cancer; she died two months later. Doe was survived by her husband and two adult children. Doe’s husband filed a lawsuit against the primary care physician and the pulmonologist claiming that these defendants chose not to follow up on the radiologist’s suspicion of lung cancer. The lawsuit did not claim any lost income.

The defendants maintained that Doe’s cancer had already metastasized by the time of the CT scan and was not a curable kind of cancer. 

The parties settled the case before trial for $2.5 million. The attorney for the Doe family was Albert P. Zabin.

Doe v. Roe, Confidential (Mass., Suffolk Co. Super. June 20, 2013).

Kreisman Law Offices has been successfully handling misdiagnosis of cancer cases, medical malpractice cases and birth injury 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 38 years in and around Chicago, Cook County and its surrounding areas, including Melrose Park, Park Ridge, Park Forest, Forest Park, Oak Park, Palos Hills, South Barrington, Orland Park, Elk Grove Village, Glenview, Wilmette, Evanston and Skokie, Ill.

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In September 2007, 55-year-old Barbara Ann Drebek-Doyle underwent a CT scan of the sinuses due to her recurrent sinusitis condition. The test was performed at Advocate Condell Gurnee Outpatient Radiology Center. The scan was interpreted by the defendant Dr. David E. Foosaner, a radiologist.  In a lawsuit that was filed by Ms. Drebek-Doyle, she contended that Dr. Foosaner chose not to detect and report a brain mass or tumor that was seen on the CT scan. As a result, the tumor remained undiscovered and untreated for 3.5 years. 

In March 2011, an MRI of the brain showed the brain mass at the top center of Ms. Drebek-Doyle’s head. Surgery was done to remove the benign mass, a meningioma that was in the membrane lining of the brain. Meningioma occur most frequently with women; they cause various types of symptoms.  Some symptoms include chronic headache, nausea, vomiting and balance issues. If the tumor is not removed fairly quickly, there is a risk that it may increase in size and cause much more serious effects, including death.

The plaintiff maintained that if the radiologist defendant had reported the mass in 2007, it could have been removed at that time. Instead, the delay caused Ms. Drebek-Doyle to suffer various problems over the next 3 ½ years, including increased headaches, loss of balance, memory deficits, bowel incontinence and fatigue. 

In fact, she made a full recovery after the 2011 surgery returning to her baseline condition with lingering headaches/memory/balance issues, which pre-dated the sinus CT and were longstanding with no relation to the benign tumor/meningioma. 

Dr. Foosaner asserted that the CT scan at issue was a focus study of the patient’s sinuses; he also maintained that the study under-penetrates the brain and was not the correct diagnostic test for identifying a brain tumor at the top of the brain. Any alleged finding on the scan was actually an artifact (an image caused by the test itself), which obscured the brain windows. He also stated that the alleged finding was on the opposite side of the brain from where the meningioma arose and grew. 

The case went to the jury to deliberate. The jurors considered the evidence in the case for only 50 minutes before they found in favor of the defendant, Dr. Foosaner.  Before trial, the plaintiff demanded settlement of $475,000.  The plaintiff’s attorney asked the jury to return a verdict in the range of $250,000 – $300,000.  There was no offer to settle the case.

Barbara Ann Drebek-Doyle v. Dr. David E. Foosaner, No. 11 L 755 (Lake County, Illinois).

Kreisman Law Offices has been successfully handling brain tumor misdiagnosis cases, brain tumor cases, medical negligence 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 38 years in and around Chicago, Cook County and its surrounding areas, including Willow Springs, Worth, Thornton, Streamwood, Steger, Crete, Chicago Heights, Country Club Hills, South Barrington, South Holland, Palos Park, Hanover Park, Glenwood, Hillside, Hickory Hills and Justice, Ill.

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Tony Love, 13, came through the emergency department at Ingalls Memorial Hospital complaining of left knee pain and a fever on Sept. 23, 2007.  He was diagnosed with a quadriceps strain and was sent home. 

The next morning, Sept. 24, 2007, Love was seen by the defendant physician, Dr. Arun Shah at Harvey Health Center for complaints of continuing knee pain, but his temperature was normal. 

Dr. Shah diagnosed Love as having a sprained knee.  Three days later on Sept. 27, 2007, Love was taken to South Suburban Hospital with a high fever, severe knee pain and inability to walk. The lab work there showed an elevated white blood count and elevated liver enzymes as well as a blood culture that revealed methicillin resistant staphylococcus aureus (MRSA) in the knee.

Tony was transferred that same day to the University of Chicago Hospital for treatment.  However, the infection spread throughout Love’s body and he remained hospitalized at the University of Chicago Hospital until Dec. 9, 2007.  During his hospitalization, he underwent 17 separate surgeries to treat the MRSA infection.  There was over $1.1 million in medical expenses.

In the lawsuit that was brought against Dr. Shah, it was alleged that the doctor was negligent in choosing not to order blood work, choosing not to recognize signs and symptoms of infection and choosing not to diagnose and treat Love’s infection.

Tony Love also maintained that the staph infection had been present at least 4 days before he was diagnosed based on the severity and nature of the infection.  The defendant argued that Love did not have a clinically diagnosable infection on the day that Dr. Shah saw him and that his condition progressed over the next 3 days.  The emergency department doctor at Ingalls, who was also sued, settled out of court for $765,000 before the beginning of the trial.

The jury’s verdict of $2,100,000 was made up of the following damages:

• $1,100,000 for medical expenses;
• $500,000 for past pain and suffering;
• $500,000 for disability;
• $0 for future pain and suffering; and
• $0 for disfigurement.

The attorneys representing Tony Love were James Sanford and John K. Kennedy.

The demand before trial to settle the case was $1 million.  There was no offer to settle from defendant. 

Counsel for Love asked the jury to return a verdict of $8,100,000.

Tony Love v. Dr. Arun Shah, No. 09 L 8164 (Cook County, Illinois).

Kreisman Law Offices has been successfully handling hospital negligence cases, misdiagnosed infection 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 38 years in and around Chicago, Cook County and its surrounding areas, including Hawthorn Woods, Lake Zurich, Kildeer, Long Grove, Buffalo Grove, Wheeling, Des Plaines, Elk Grove Village, Wood Dale, Franklin Park, South Barrington, Fox River Grove, Lincolnshire, Hoffman Estates and Aurora, Ill.

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