Recent Case Results
The need for medical malpractice litigation is evident when medical care goes wrong and the hospital or physician at fault refuse to properly compensate the victim. The standard of care may vary depending on the location of the hospital and the experience of the staff. Cases involving negligent medical care or medical mistakes can be addressed by Chicago malpractice lawyers to protect the rights of the patient.
Dana Carvey Has the Wrong Artery Bypassed
Dana Carvey, an actor featured on Saturday Night Live and in films, underwent a double bypass surgery. Months after the surgery, the surgeon revealed that the wrong artery had been bypassed. The doctor protested that the mistake was due to the unusual placement of the artery in Carvey’s heart. Dana Carvey disagreed and filed a multi-million dollar lawsuit against the doctor and the hospital.
Surgeons Operated on the Wrong Side of the Head
Three surgeries were done on the wrong side of patients’ heads in one calendar year at a Rhode Island hospital. One incident involved an 82-year-old woman. The surgeon was attempting to stop bleeding from the brain to the skull. The wrong side of the victim’s head was drilled, despite the CAT scan that showed the bleeding was coming from the other side of the skull. The woman survived the incident in fair condition.
DNA Mixed Up at Fertility Clinic
Couples who have difficulty conceiving turn to fertility clinics to help fulfill their dreams of having children. A woman was accidentally impregnated with the sperm of a stranger, rather than that of her husband. The resulting child was biracial and not biologically related to the spouse. The couple kept the child as their own, but they have filed suit against the clinic and the embryologist involved.
Man Remains Aware During Surgery
A minister from West Virginia suffered from anesthetic awareness during surgery. The patient was not given the anesthetic that would make him unconscious. He was able to feel the pain of the abdominal procedure. The victim was not told that he had not been properly anesthetized, so he wasn’t sure if the memories of pain were real. He committed suicide two weeks after the surgery, leaving his family behind.
Male Bodybuilder Given C-cup Breast Implants
A male bodybuilder who was once the runner-up for Mr. Universe wanted to have pectoral implants surgically added to his body. Instead of pec implants, he was given C-cup breast implants. He required surgery to remove the incorrect implants, resulting in more pain and expense.
The federal government is tracking data to crack down on hospitals that consistently commit high rates of avoidable or preventable errors in patient care. The government is relying on patient data collected by Medicare. The purpose of the program is to reduce “hospital-acquired conditions.”
This new program was instituted as part of the healthcare reform enacted under the Affordable Care Act. As of 2013, Medicare penalized 1,231 hospitals and reduced Medicare payments for another 1,451 for each Medicare patient treated.
The Judgment Criteria
Medicare judges hospitals on a series of criteria. First, the rating system is curved. Hospitals are judged based on the performance of other hospitals. Therefore the more a particular hospital improves, the more it pulled up the “curve” which puts pressure on other hospitals to improve. Medicare assesses around two-dozen different criterion.
25 percent of a hospital’s score is derived from the death rates. Mortality rates are calculated in the hospital or within a month of discharge. Medicare explicitly considers the rate of death for patients admitted for pneumonia, heart failure, or heart attacks.
Next, 30 percent of a hospital’s score is derived from patient satisfaction surveys. Patients are asked to rate how well they were treated. For example, whether or not the doctor and nurses adequately communicated each step of the process and were available to answer questions.
Finally, the remaining 45 percent of a hospital’s score is calculated from clinical care. Clinical care covers three primary topics.
First, Medicare reviews the frequency of central-line bloodstream infections. The central-lines are used to pump fluid or medicine directly into a patient’s veins. The invasive nature of these devices is such that infections are incredibly dangerous therefore hospital staff must follow strict disinfectant procedures to protect patients.
Second, Medicare reviews infection rates for tubes inserted into bladders to remove urine, which often result in severe infections that endanger patient’s lives. Even the slightest failure to observe proper handling techniques could cause a dangerous or deadly infection.
Finally, Medicare examines the rates of a compilation of eight serious complications that occurred in hospitals including:
- Surgical cuts, tear and reopened wounds;
- Collapsed lungs; and
- Broken hips.
Medicare also assessed how well a particular hospital improved over the previous two years.
Medicare used this information to rate hospitals on a scale of one to ten. Medicare determined that scores of seven and above “excessive” and assessed penalties against the offending hospitals.
Criticism of the Program
Some hospitals argue that this measurement system unfairly penalizes hospitals that serve disadvantaged areas or that provide high-risk procedures. For example, specialty hospitals owned and run by doctors that only offer a few services scored exceptionally well under measurement regime.
Conversely, some hospitals argue that they are unfairly penalized due to their location, budget, and the people they serve. Hospitals in disadvantaged areas are inherently underfunded and overworked. Therefore, when Medicare cuts their funding, it is only succeeding in pushing their standards of care even lower.
The review system rewards hospitals that do well and punishes hospitals that do poorly. For example, some hospitals in Wisconsin, Utah, North Carolina, New Hampshire, Nebraska, Massachusetts, and Maine are doing very well. 60 percent of hospitals in those states are receiving a bonus. Conversely, two-thirds of hospitals in 17 states, including California, Nevada, New York, Washington, Wyoming, and others are receiving reduced reimbursements.
Moreover, it appears that many previous winners continue to receive bonuses. Similarly, poorly performing hospitals continue in their poor performance. These numbers indicate that the “curved” grading system seems to reinforce prior held advantages.
Effect of the Program
Hospitals are about evenly split on whether or not the dual approach of punishment and shame will change hospital practice. Some argue the data allows hospitals to compare performance with their competitors. Before this system, a hospital may operate under the mistaken belief that it was doing well, when in fact, it was not.
The penalties are based on the amounts paid for each Medicare patients. The penalty can range from around 0.05 percent to a maximum of two percent. These amounts are minor compared to the full operating budget of the hospital. However, they do serve a significant role in reminding hospitals to improve their practices. The purpose of the program is to encourage improvements, not saddle struggling hospitals with additional problems.
It is unclear what effect if any; these results will impact on potential lawsuits against poorly performing hospitals. A standard element in any medical malpractice or tort case is to prove that the injury was reasonably foreseeable. There are an infinite number of ways to establish this element. However, many people rely on “notice.” Notice is when the defendant is aware that there is a problem and fails to act. These reports may serve as notice for certain high-risk hospitals.
Doctors who intentionally misdiagnose patients with conditions they do not have can pose a considerable risk to patient safety and quality of life. The treatments they prescribe are not only unnecessary, they may adversely affect patient health. When a physician deliberately misdiagnoses a patient with an ailment, they are committing fraud that is punishable by prison and fines.
Recently, the Oakland County Circuit Court approved settlements totaling $8 million that will be paid to 40 plaintiffs who filed claims against Farid Fata. Fata was a practicing oncologist who worked in three Michigan hospitals. During his time in these hospitals, he deliberately misdiagnosed his patients with various cancers that they did not have. These patients underwent round after round of chemotherapy which adversely affected their health and quality of life. In the meantime, Fata collected millions of dollars in insurance payments. In 2014, he was found guilty of fraud, money laundering, and conspiracy as a result of his crime.
Reimbursement Fraud in Illinois
The ruling comes just a few months after Governor Rauner initiated a task force in Illinois to examine Medicaid fraud. The state currently spends over $19 billion on Medicaid reimbursements. It is estimated that between 8-10% of these reimbursements are fraudulent. These fraudulent requests include both over billing, and billing for services that were not rendered.
Risk to Patient Safety and Health
Physicians who deliberately misdiagnose a patient with an illness intentionally place their patient’s health and safety at risk. In the most serious cases, patients may undergo operations, chemotherapy, or be prescribed medications that can adversely impact their health. These treatments can cause pain and suffering, loss of quality of life, loss of income, drug addiction, and even death.
To reduce the risk of becoming a victim of a deliberate misdiagnosis, it is imperative for patients to receive a second opinion whenever a physician recommends a round of treatment for a serious medical condition. Indeed, many cases of deliberate misdiagnosis are uncovered when a second physician examines a patient and determines that no underlying medical condition is present.
Healthcare Fraud has Many Faces
Some physicians view patients as piggy banks. By deliberately misdiagnosing a patient and dreaming up ailments, they can make considerable profits. Recently, the manager of Suburban Home Physicians, Diana Jocelyn Gumila from Streamwood, Illinois utilized her company, Doctor at Home, to diagnose patients as being “homebound.” In turn, she collected nearly $15.6 million in Medicare payments. Gumila directed physicians referring patients to her services to tailor their forms so that it appeared that the physician’s patients were unable to leave their homes.
Moreover, she directed these physicians to identify these patients as requiring complex, lengthy, and ultimately, expensive care and treatment. These physicians placed the health and safety of their patients at risk by recommending them to services and treatment that they did not need. Indeed, they were complicit in Gumila’s scheme and profited from their referrals to her services.
Recourse is Available
Patients who have been deliberately misdiagnosed with medical conditions, or referred to services they do not require can file claims for medical malpractice and medical negligence. Through their Chicago medical malpractice attorney, individuals may seek damages for the pain and suffering and impact to quality of life that deliberate misdiagnosis can create.
Molly’s Law, a new measure that was recently signed by Governor Bruce Rauner, will help Illinois families who are seeking justice in wrongful death cases. Inspired by Molly Young, an Illinois woman who was found dead in 2012 in her ex-boyfriend’s Carbondale home, the legislation extends the statute of limitations in Illinois wrongful death claims and increases the financial penalties for non-compliance with the Freedom of Information Act.
Under the previous law in Illinois, surviving families had a mere two years from the time of the victim’s death to file a claim. In the case of Molly Young, the coroner’s jury was unable to determine whether the gunshot wound that caused her death was a result of an accident, suicide or homicide. While the victim’s father, Larry Young, suspected foul play and attempted to obtain police records that would shed more light on the case, his requests were denied. Meanwhile, time ran out for Young to take legal action. The new law, which extends the statute of limitations for wrongful death lawsuits to five years from the date of the victim’s death or one year from the conclusion of the criminal case against the perpetrator, is intended to allow families a more adequate amount of time to evaluate evidence and move forward with a suit if desired. Unfortunately, the law does not include retroactive cases, and Young’s family is unable to pursue a claim.
The second portion of Molly’s Law imposes hefty fines for public bodies that willfully and intentionally fail to comply with the Illinois Freedom of Information Act (FOIA). While Larry Young made numerous attempts to obtain police records from the Carbondale Police Department and the Illinois State Police, it wasn’t until February of 2016 that the Illinois Attorney General’s Office ordered Illinois police to release the information. In denying Young’s requests, Carbondale police and Illinois State Police violated the state’s public records laws. Under the new law, which will go into effect January 1, 2017, the court can impose fines of up to$10,000 for each occurrence, and an additional $1,000 per day when a public body does not comply with orders to turn over documents pertaining to a case within 30 days.
According to Governor Rauner, the extended time period for filing a claim and increased penalties for violating the FOIA will better enable families to obtain justice in such tragic cases.
Diagnosing a disease is a complicated procedure that involves dozens of variables. Misdiagnoses are always a risk; however, when doctors overlook obvious symptoms, misdiagnosis crosses the line into medical malpractice.
In a study by Kaiser Health News, researchers discovered a crisis of misdiagnoses in the American healthcare system. Estimates show that up to 20 percent of patients experience a misdiagnosis, but the number may be only a fraction of the problem. Unfortunately, a large percentage of patients who experienced a misdiagnosis see their conditions worsen to cause severe harm or death.
Often when a doctor makes a misdiagnosis, the patient does not seek the help of malpractice lawyers or a second medical opinion. The result is a serious under reporting of misdiagnoses to malpractice lawyers.
The Cost Of Misdiagnosis
A misdiagnosis affects patients on several different levels, and the impact can be felt even after the diagnosis is corrected. Some of the effects include:
Physical And Emotional Strain
Without the correct diagnosis of the patient’s condition, the patient continues to experience pain and discomfort. In addition, patients may be subjected to unnecessary testing and painful procedures to try to discover why treatments are not working.
As time passes without any improvement to the patient’s condition, patients begin to suffer from mental and emotional strain. The stress of the situation increases the risk of spats at home, while the pain of the condition makes it difficult to socialize with friends and family.
Treating the wrong condition can cost patients thousands of dollars in additional medical expenses. Analysts at the Institute of Medicine believe that misdiagnoses account for up to 30 percent of all healthcare spending, at a total cost of more than $750 billion a year.
In addition, patients struggle to meet their personal financial obligations due to time lost at work. A patient may lose weeks of pay as a result of his or her physical pain and the time needed to visit a doctor for treatment.
For injured patients, there is some relief. Most malpractice lawyers work on a contingency basis, meaning they do not collect a fee unless the client receives compensation for the claim. This allows patients to seek the assistance of malpractice lawyers, without the ongoing cost of attorney fees.
By demonstrating that another doctor, with the same set of evidence, would have arrived at the correct diagnosis, malpractice lawyers can seek compensation for clients, and ease the pain of misdiagnosis.
When surgical mistakes cost a patient’s life, a case of wrongful death may be brought against the surgeon, hospital or other healthcare professional. Medical malpractice happens when healthcare providers fail in their responsibility to deliver quality healthcare to their patients. There are many types of medical malpractice that can result in personal injuries or even death. When surgeons fail to deliver the best possible care and make surgical errors that cause wrongful death, families may seek compensation for their loss.
Wrongful death caused by surgical error is classified under personal injury law and is a form of medical malpractice. Medical malpractice is a situation where a healthcare provider did not follow the normal standards of care, and an injury resulted from this negligence. Hospitals may also be held liable in wrongful death claims. When complications arise during surgery, mistakes can occur such as an error of judgment by the surgeon, an anesthesia mistake or a hospital error. Patients can suffer severe repercussions from surgical mistakes and anesthesia mistakes.
According to the State of Illinois and the Wrongful Death Act, “wrongful death” is defined as a death that is “caused by wrongful act, neglect or default, and the act… [would] have entitled the party injured to maintain an action and recover damages” [if death had not occurred]. The law states that the person, company or corporation responsible for the death may be held liable in a lawsuit. In Illinois, families may file a wrongful death lawsuit and seek compensation for their loss within one year and up to two years after the surgical procedure that resulted in death. The person filing for a wrongful death case must be the “personal representative” of the deceased’s estate. Usually, this is the spouse, the parent (of a minor) or the adult child of the deceased.
The personal representative may seek compensation for funeral expenses and damages for “grief, sorrow and mental suffering” of the family of the deceased (as stated in the Wrongful Death Act). According to the law, this includes only the surviving spouse and children of the deceased. The court determines the amount of damages awarded based on the circumstances and the person’s dependency on the deceased. For Chicago, Illinois families seeking damages in a wrongful death case, a personal injury lawyer may help the personal representative file before the statute of limitations has expired, and help families deal with the grief and financial burden of their loss.
Recent studies by Johns Hopkins University show that medical error is the third leading cause of death in the U.S., a statistic with details that are underreported by medical professionals. Without proper standards set in place to report medical error, healthcare professionals cannot properly identify and correct problems. This prevents a safe healthcare environment for patients and can lead to injuries and death due to medical error. A personal injury lawyer in Chicago, Illinois can help victims and their families seek damages for medical malpractice or wrongful death cases.
In May 2016, Johns Hopkins University (JHU) presented an open letter to the Center for Disease Control and Prevention asking for standards and regulations to be set in place for reporting medical errors. Currently, there is no place for “medical error” to be reported on a death certificate. By analyzing medical records JHU concluded that 9.7% of deaths in the U.S. (2013) were due to medical error – making it the third leading cause of death. JHU suggests that implementing a reporting system for medical error would help the healthcare industry determine faults and problems within the system and help doctors and hospitals work to create a safer environment for their patients.
As explained by JHU, “death due to medical error” is defined as death from an error in judgment or skill, a diagnostic error, a system defect or a preventable harmful event. Any of these situations that result in injury or death of the patient due to a medical error can be classified as medical malpractice. These cases are brought due to the negligence of nurses, hospitals, physicians, surgeons, obstetricians and other healthcare professionals. In medical malpractice cases, injury or death could have been prevented, which is why JHU suggests an “open dialogue” for discussing medical error that would help future medical professionals avoid dangerous situations.
When personal injury occurs because a healthcare professional strayed from their standards of care, the victim or their family may seek compensation for medical bills, financial stress and emotional damages. Negligence of the healthcare professional or hospital must be proven to receive compensation. An experienced personal injury lawyer can help victims gather evidence and find expert witnesses to prove a medical malpractice case in Chicago, Illinois. Doctors, hospitals and their medical staff are sworn to uphold their responsibility to provide a safe environment and high quality medical care for patients. Until medical professionals begin correctly reporting medical error and working to solve this large problem in the U.S. healthcare industry, there will continue to be medical malpractice cases in the healthcare world.
Many cases of medical malpractice occur because patients are not given the opportunity to approve the treatment their physician chooses to apply. In order to reduce the possibility of serious injury or death, physicians conducting medical treatment on a non-emergency basis in Illinois are required to obtain patient consent prior to commencing medical care.
Illinois Law and Informed Consent
In Illinois, physicians are required to inform patients of the potential risks, complications, and alternative treatments that are available regarding medical care. This is especially important when it comes to surgery as there may be less invasive options available that pose significantly fewer risks.
The more information a physician discloses, the better. This includes answering any questions patients may have regarding a physicians education, training, and experience performing the procedures they are recommending. Physicians must also disclose safety information related to the devices and equipment that will be used to conduct the procedure. While they do not need to guarantee that these will work properly, physicians are required to notify patients of any known safety hazards and risks.
Exceptions to Informed Consent
Physicians are not required to obtain informed consent from patients undergoing emergency medical treatment, such as lifesaving procedures following an automobile accident. In Illinois, the law presumes that the physician will consider all available facts and information prior making a treatment decision on behalf of the patient. However, this does not absolve physicians who abuse this privilege and conduct experimental, or other treatments that present significant known hazards to patient health and safety.
Illinois’ informed consent provisions also cover those who are incapable of making medical decisions on their own behalf. These include children, patients who are mentally ill, or patients who are incapacitated. In these cases, consent must be obtained from the individual’s parent or legal guardian.
Experimental Surgeries are Especially Dangerous
The hottest trend or the latest fad can pose a significant health risk. While medical technology is growing by leaps and bounds, that does not mean that every procedure, every device, and every strategy is effective or safe. Experimental surgeries can cause heart attacks, strokes, brain damage, nerve damage, paralysis, and loss of life.
Physicians treating patients using experimental technology or treatment methods are required to provide patients with information notifying them of the potential risks. When they don’t, they can be held liable for medical malpractice. Such was the case of Dr. Mark Holterman whose experimental treatments led to the permanent injury of a child who will now require life-long care as the result of a botched esophageal operation.
Holding Physicians Liable for Medical Malpractice
Physicians can be held liable for negligence and medical malpractice if they do not properly inform a patient prior to the commencement of a procedure. In cases of gross negligence, patients and their medical malpractice lawyer may also seek a claim for battery if it can be shown that the physicians intent was to take advantage of, or otherwise deliberately harm the patient.
Patients in Illinois do not waive their rights even if the physician has informed them of all the potential risks associated with a medical procedure. Indeed, the law specifically prohibits the use of any language, either verbally or in writing, that would restrict the rights of patients to pursue compensation for any injury that might occur.
Preventable medical errors claim the lives of an estimated 251,000 Americans each year according to a recently published study by BMJ. The third leading cause of death in the United States, medical errors result in more fatalities than Alzheimer’s, respiratory disease, strokes, and even accidents.
Since the Centers for Disease Control and Prevention (CDC) does not require hospitals and other health care treatment facilities to provide reports of medical errors when they collect data about fatalities, and few providers provide the public with information about mistakes, it is very difficult to evaluate the issue at the national level. Many experts believe that a more effective reporting system would shed more light on the reasons these medical errors are occurring, identify patterns of occurrences, and help medical providers avoid such costly mistakes.
At 251,000 deaths annually, medical errors are responsible for an alarming 700 fatalities each day (equal to about 9.5 percent of all fatalities) in the United States. Even more disturbing, however, is the number of medical mistakes that result in significant injuries or illnesses throughout the nation. According to Frederick van Pelt, a doctor who works for the consultancy agency the Chartis Group, some studies estimate the number of medical error-related injuries to be an astounding 40 times higher than the number of deaths. The actual numbers are difficult to measure, however, because patients and their families are often unable to differentiate damages caused by a bad outcome where no negligence occurred from medical malpractice.
The top five causes of death in the United States as reported by the National Center for Health Statistics:
- With an estimated 614,348 fatalities annually, heart disease continues to rank as the leading cause of death in the U.S.
- Cancer, with approximately 591,699 deaths each year, ranks second.
- Medical errors account for an estimated 251,454 American deaths every year.
- With 147,101 deaths each year, respiratory disease ranks fourth.
- Accidents are the cause of 136,053 fatalities annually in the United States.
Risk Factors for Medical Errors
Even without adequate research to identify the causes of common medical errors that result in injury and death in the United States, a number of risk factors obviously exist that could be improved. Research suggests that focusing on such factors as communication between care providers, more thoroughly discussing procedures with family members, following up on complaints of pain or unexplained symptoms, and ensuring that proper documentation is completed could help reduce the number of medical errors that result in death or serious injury.
Calculating long-term medical expenses is one of the most difficult steps in any personal injury settlement. Estimates that are too low leave families to bear the burden of the injury out of pocket, while defendants fight hard against estimates that are too high. In order to strike a balance, attorneys use a life care plan to predict future medical expenses.
What Is A Life Care Plan?
A life care plan is a thorough examination of a victim’s future medical needs, based on the extent of the injuries, life expectancy, and other factors. Both a personal injury lawyer and the defense seek life care plans from expert medical consultants who perform the estimates and present their findings to the court or the opposition.
Elements Of A Life Care Plan
The plan examines several critical areas that affect the cost of long-term care.
Prescription drug prices in the United States are some of the highest in the world, and victims with long-term injuries may need medication for months or years. The life care plan extrapolates the victim’s current dosages and estimates the total cost of continuing that level of medication for an agreed period of time.
Doctors also estimate the cost of new drugs that may raise the price of treatment, if the new drug becomes the standard of treatment for a particular condition. In addition, doctors adjust prices lower when generic drugs become available.
Diagnostics And Treatment
For a long-term injury, the victim may need follow up doctor’s appointments, testing, and hospital stays. The experts predict the number of tests and the cost of diagnostics based on prevailing treatment theories at the time. Other doctors contribute their analysis of the future of the field, and suggest the potential cost and availability of new treatments in the future. Often, experts will include provisions for mental health services, as well as medical services.
The life care plan must also account for related illnesses or injuries that may arise as complications from the original injury. For example, a spinal cord injury may cause respiratory or bladder problems that are not yet present in the victim.
Aggressive Treatment Options
Cutting-edge medical treatments can greatly improve the quality of life for someone with a long-term injury; however, the cost of these treatments can far exceed the normal cost of treatment.
The medical expert for a personal injury lawyer may recommend aggressive treatment options that are new enough that there is not yet data on the total cost of treatment for a patient. Through the life care plan process, a victim has the right to propose a plan as ambitious as he or she wants, but the defense has the right to dispute the claims.
Victims who lose a part of their body usually receive compensation for a prosthetic device in the settlement. Over time, these therapeutic devices need to be upgraded or replaced to meet the needs of the victim. Devices may also include access ramps and accessible bathtubs.
A personal injury lawyer will include estimates for future replacements, factoring in the rising cost of technology and new developments in prosthetics. This portion of the life care plan is especially important for injured children, who may grow out of their device every few years.
A life care plan is an essential part of the settlement a personal injury lawyer seeks, and requires careful examination and attention to detail to secure fair compensation for victims.