Chicago Medical Malpractice Attorney Blog

Privilege is a legal term that infers an exception from a particular rule or requirement. For example, attorney-client privilege refers to the fact that attorneys are not required to disclose information gained from communication with their clients. However, the concept of privilege is not limited to the law alone. Doctor-patient privilege protects information gained during the course of medical treatment from being used in court without the patient's permission.

The purpose of these forms of privilege is to encourage people to be candid with their lawyers and doctors in order to help those professionals perform their jobs. The idea is that if a person fears legal ramifications as a result of their communications with their attorneys and physicians, that he would be less candid and potentially withhold important information. In this way privilege is meant to protect clients and patients.

However, there are times when these forms of privileged can be waived, allowing other parties access to this formerly confidential information. For example, an Illinois judge recently reviewed the circumstances under which doctor-patient privilege is waived; Flowers v. Owens, No. 09 C 2716. In examining the case facts, the judge needed to ensure that the plaintiff-patient's rights were protected, while also considering whether maintaining the privilege put the defense at an unfair advantage.

Continue reading "Doctor-Patient Privilege Examined By Illinois Judge - Flowers v. Owens" »

There's an old saying that there are two sides to every story - in civil litigation, the plaintiff's attorney present one side of the story to the jury while the defendant's attorney presents the other. In order to ensure that the facts are fair and that neither party presents information to the jury that would unfairly prejudice it towards the other side, the trial judge rules on motions in limine prior to the trial.

Each side prepares its own motions in limine, which set out various evidence and testimony that it feels should be excluded from the trial. Each motion includes not only a recitation of which evidence the party seeks to exclude, but also an argument as to why that specific evidence should be excluded from the civil trial. The judge then makes the final ruling on each motion in limine. If the judge rules to exclude the evidence, then neither side may bring it up during trial. However, if the judge denies a motion in limine, then that evidence is free game.

The Illinois attorneys involved in Guski v. Raja, No. 1-10-0108 (May 10, 2011), went through this motion in limine process prior to the Illinois medical malpractice trial. The judge granted some motions, but denied others, including one of plaintiff's motions regarding the decedent's marijuana use. After the jury found in favor of the defendant doctor, the plaintiff sought a retrial based on the the trial court's erroneous motion in limine rulings and the defense's unfair closing argument.

Continue reading "Illinois Court Affirms Lack of Trial Objections Forfeits Right to Review of Evidentiary Rulings - Guski v. Raja" »

An Illinois obstetrician appealed a $500,500 medical malpractice verdict against him in Lisa Babikian v. Richard Mruz, No. 1-10-2579. Dr. Mruz argued that the plaintiff's attorney had prejudiced the Cook County jury against him. The appellate court disagreed and dismissed the defendant's mistrial claims. However, the appellate court did grant the defense attorney's request for a set-off, reducing the jury verdict by the amount of a prior settlement involving the same case.

The Babikian medical malpractice lawsuit arose out of preventable surgical errors Dr. Mruz committed while performing a diagnostic laparoscopy on Ms. Babikian. The purpose of the procedure was to determine whether or not Ms. Babikian suffered from endometriosis, a condition involving the cells lining the uterus. During the relatively simple surgical procedure, Dr. Mruz managed to pierce Ms. Babikian's transverse colon.

This surgical mistake required Ms. Babikian to undergo corrective surgery, extensive hospitalization, and the placement and eventual reversal of a colostomy. In addition, the plaintiff developed abdominal pain, intestinal problems, and hernias as a result of the surgical negligence. The plaintiff and her now ex-husband brought an Illinois medical malpractice lawsuit against Dr. Mruz and the medical center where the surgery was performed.

Continue reading "Appellate Court Upholds Right to Reference Lack of Board Certification, But Reduces Final Verdict Amount in Babikian v. Mruz" »

Illinois medical malpractice lawsuits rely on the assumption that a doctor, nurse, or facility violated the appropriate standard of care; therefore, all medical malpractice lawsuits require parties to establish the jury with a concept of what was in fact the acceptable medical standard of care. The jury is then instructed as to how to analyze the medical malpractice case when making decisions regarding the standard of care. Therefore, if a jury were given incorrect instructions on how to evaluate the medical standard of care, then it might affect the jury's reasoning and eventual verdict.

The Illinois medical malpractice lawsuit of Jane Studt et al. v. Sherman Health Systems, No. 108182 was brought before the Illinois Supreme Court in order to determine whether the Illinois jury was given the incorrect version of Illinois Pattern Jury Instruction 105.01. In an unexpected twist, the Supreme Court held that the jury did receive the wrong jury instruction version, but still upheld the jury's original verdict.

Continue reading "$867K Medical Malpractice Verdict Upheld Despite Wrong Version of Jury Instruction - Studt v. Sherman Health Systems" »

A Cook County hospital infection decision by the Illinois Appellate Court clarifies what types of medical records are discoverable. The court ruled in Joseph Zangara and Wayne Dziamara v. Advocate Christ Medical Center, Paul Gordon, et al., Nos. 1-09-1911 and 1-09-1914, that the defendant hospital was required to produce records documenting the number of MRSA infections at the hospital for a three month period.

The Illinois medical malpractice lawsuit involved two consolidated MRSA lawsuits filed against Advocate Christ Medical Center. Joseph Zangara and Zigmund Dziamara were both hospitalized at Christ Medical Center during the same time period in 2005. Both Zangara and Dziamara acquired MRSA, or methicillin-resistant staphylococcus aureas, during their admissions; however, Zangara survived the infection, while Dziamara did not. Both Zangara and the estate representing Dziamara filed civil lawsuits against Christ Medical Center that accused the Oak Lawn hospital of negligent management regarding its infection control procedures.

Continue reading "Cook County Judge's Ruling on Privilege of MRSA Data Reversed By Illinois Appellate Court - Zangara et al. v. Christ Medical Center" »

The Illinois Supreme Court ruled as to the statute of limitations regarding the Illinois lawsuit of Kristen Kaufmann v. Roger A. Schroeder, M.D., Jersey Community Hospital, a municipal corporation, et al., No. 109738. While the plaintiff argued that she had filed her claim well within the two year statute, the Illinois Supreme Court held that she had failed to meet the actual one year statute of limitations. The deciding factor of whether or not it was a one or two year statute dealt with whether or not Kaufmann's claim was considered an Illinois medical malpractice lawsuit.

The facts surrounding Kaufmann involved allegations that the plaintiff woke up after being sedated to find her physician licking her breasts. The complaint also contended that not only had her OB-GYN, Dr. Roger Schroeder, committed sexual assault against Kaufmann, but that he had unnecessarily sedated her in order to do so.

Kaufmann had presented to Jersey Community Hospital under Dr. Schroeder's care for treatment of an urinary tract infection and was told that she needed to be sedated for the procedure; she later discovered that this was not true. As a result of Dr. Schroeder's actions, Kaufmann filed a complaint not only against the doctor, but also against Jersey Community Hospital, the hospital employing him.

Continue reading "What Constitutes Medical Malpractice? Illinois Supreme Court Clarifies Definition in Kaufmann v. Jersey Community Hospital" »

A recent Illinois Supreme Court decision changed the way damages can be sought under the Illinois Nursing Home Care Act. The Court ruled unanimously in a 6-0 ruling that punitive damages cannot be awarded for wrongful death cases under the Nursing Home Care Act in Thomas Vincent v. Alden-Park Strathmoor, Inc., No. 110406.

Punitive damages are different than compensatory damages, which are awarded by courts and juries as payment for actual harm or losses suffered as a result of the defendant's actions. While compensatory damages are seen almost as a way to reimburse the plaintiff for their loss, punitive damages are meant as a way to punish a defendant for its actions. Punitive damages are typically awarded in addition to compensatory damages and are only awarded when the defendant's actions are so grossly negligent that additional censure is needed.

In the underlying Chicago nursing home malpractice case, Thomas Vincent, the legal representative for his deceased mother's estate, filed a complaint that contained three counts requesting damages be paid by Alden-Park Strathmoor, Inc. for its negligent care and treatment of his mother prior to her death. While two of the counts sought compensatory damages, the third and final count was a survival claim filed under the Nursing Home Care Act which included a request for punitive damages for the nursing home's allegedly willful and wanton conduct.

Continue reading "Punitive Damages By Surviving Family Members Denied Under the Illinois Nursing Home Care Act - Vincent v. Alden-Park Strathmoor, Inc." »

The Illinois Appellate Court has found that a medical expert in a medical malpractice case may be impeached with the use of the physician’s §2-622 (Illinois Code of Civil Procedure) report as a prior inconsistent statement. This issue before the court was one of first impression in the state and was decided upon in Iaccino v. Anderson, No. 1-07-0207.

In the Iaccino birth injury lawsuit, the plaintiff's attorneys alleged that the defendant doctors and hospital were responsible for the brain damage that the minor plaintiff, Jonathan Iaccino, suffered as a result of oxygen deprivation during his birth. The plaintiff's attorneys alleged that the defendants' medical negligent occurred as a result of their failure to monitor Jonathan's fetal heart rate and their lack of response to the hyperstimulation of the uterus during his labor and delivery.

Gary Blake, M.D. provided a Illinois Code of Civil Procedure §2-622 affidavit as one of the plaintiff's medical experts in Iaccino. When Dr. Blake signed the §2-622 report he stated that the decelerations recorded on a fetal-monitor strip were “variable decelerations.” However, at the trial, Dr. Blake testified that these strips showed “late decelerations” or “variable decelerations with a late component.”

Continue reading "Impeachment of Medical Expert for Prior Inconsistent Statement in Section 2-622 Report Allowed By Illinois Appellate Court - Iaccino v. Anderson" »

The Illinois Appellate Court affirmed a trial court decision to treat a defendant doctor’s response to a plaintiff’s request to admit facts as evidentiary evidence rather than a judicial admission. The legal ruling arose out of an Illinois medical malpractice lawsuit involving complications following a surgeon's attempt to reverse a tubal ligation surgery, Migdalia Serrano v. Carlos A. Rotman, M.D., No. 1-09-2028.

In her surgical malpractice lawsuit, the plaintiff, Migdalia Serrano, alleged that the defendant doctor, Carlos Rotman, M.D., negligently chose not to administer Factor IX, a coagulation factor, before and after her tubal ligation surgery. The plaintiff's lawsuit alleged that the failure to administer the coagulation factor resulted in an infected hematoma. The Cook County jury trial resulted in a verdict in favor of the defendant surgeon, which the plaintiff then appealed.

At the center of the plaintiff's appeal was that Dr. Rotman had been aware that Serrano was a hemophilia carrier, which would have made her more susceptible to developing a hematoma. Serrano alleged that Rotman chose not to administer Factor IX despite knowing about her heightened risk for infection. Moreover, the plaintiff alleged that as a result of the surgical malpractice, she suffered from additional medical complications that would not have occurred had she been given the Factor IX prior to her surgery.

Continue reading "Illinois Appellate Court Distinguishes Judicial Admission from Evidentiary Admission - Serrano v. Rotman" »

An Illinois Appellate Court reviewed an Illinois medical malpractice case to determine whether references to the defendant doctors' military service had prejudiced the jury against the plaintiff and contributed to its not guilty verdict. After reviewing the facts of the case, the court held that the comments had not prejudiced the jury and were "harmless". Pavnica v. Edwin Veguilla, et al., No. 3-09-0065.

The plaintiff's medical malpractice complaint alleged that Dr. Veguilla, an emergency room physician, had failed to prescribe anaerobic antibiotics when the plaintiff presented to the ER with an injured toe. The plaintiff's medical history was complicated by a long history of diabetes and immunosuppressive medications he was taking after receiving a kidney and pancreas transplant. All diabetic patients realize the importance of checking your feet on a regular basis for potential cuts and injury as diabetic patients can easily develop diseases in their feet that could lead to gangrene.

Continue reading "Illinois Medical Malpractice Not Guilty Verdict Reviewed For Potential Prejudicial Comments- Verdict Affirmed in Pavnica v. Edwin Veguilla, et al." »

An Illinois medical malpractice claim involving a failure to diagnose cancer was barred by the Illinois Appellate Court under the Local Governmental and Governmental Employees Tort Immunity Act. Defendant CGH Medical Center Auxiliary, d/b/a CGH Medical Center, was a municipal entity, and according to the Act, government entities, such as a public health clinic, are immune from certain types of negligence committed by the entity and/or its employees.

The Appellate Court reviewed Hemminger v. Nehring, et al., No. 3-08-0751, to determine whether the Tort Immunity Act immunized the defendants against allegations of medical negligence contained within plaintiff's complaint. The plaintiff's complaint alleged that the defendant's employee was negligent when she failed to correctly interpret the decedent's Pap smear, which showed that the decedent had cervical cancer. As a result of the defendant's negligence, the decedent's cancer went undiagnosed for six months. By the time her cervical cancer was diagnosed it was classified as Stage IIIb and eventually led to her death.

In response, the defendants filed motions for summary judgment, which if granted would result in the case's dismissal. In its motions, the defendants argued that they were immune from any liability or negligence under the Tort Immunity Act. They also argued that the case should be dismissed because the plaintiff failed to file the complaint within the one year statue of limitations set out for municipal entities. The plaintiff's complaint was instead filed within two years of the medical negligence, which would have met the statute of limitations for a non-government entity.

Continue reading "Illinois Medical Malpractice Claim Barred Under the Illinois Tort Immunity Act - Hemminger v. Nehring" »

The Illinois Nursing Home Care Act was recently reformed in order to address the safety of Illinois nursing homes. The reform comes on the heels of a series of articles by the Chicago Tribune documenting regular acts of nursing home abuse, including rape, murder, and assault, against geriatric residents by younger psychiatric residents and convicted felons.

The Illinois nursing home reform will begin by tightening psychological screening and required criminal background checks for new nursing home residents in order to determine which potentially dangerous residents should be placed in secure therapeutic wards that are separated from the rest of the nursing home facility. In order to address potentially dangerous residents already housed in Illinois nursing homes and limit occurrences of nursing home abuse, the reform measures will transfer thousands of mentally disturbed patients into smaller units structured to provide better supervision and therapy for those patients.

In addition, those nursing homes that admit mentally ill patients will be required to obtain an additional certification that demonstrates the facility and its staff are equipped to effectively monitor and treat these residents. A current problem with Illinois nursing homes is that they are understaffed and lack adequate training to deal with non-geriatric patients. These new standards will effect to combat these potential causes of Illinois nursing home abuse.

Continue reading "Illinois Nursing Home Abuse Addressed in Reform Bill to Illinois Nursing Home Act" »

Recently the Illinois Supreme Court reversed a ruling by the Illinois Appellate Court Fifth District regarding the enforcement of a nursing home operator’s arbitration agreement. In Carter v. SSC Odin Operating Co., LLC, No. 106511 (4/15/10), the Special Administrator of the Estate of Joyce Gott brought a nursing home and wrongful death claim against the nursing home operator.

Many nursing homes in Illinois and nationwide have initiated the practice of including mandatory arbitration clauses in their admission documents in an attempt to force patients and their families to arbitrate a potential Illinois nursing home abuse case rather than bringing an Illinois nursing home malpractice lawsuit. However, other states, such as the Missouri Supreme Court's decision in Lawrence v. Beverly Manor, 2009 WL 77897 (Mo. Jan 13, 2009), have ruled that these mandatory arbitration agreements are not enforceable and that nursing home residents and their families can bring a lawsuit even if an arbitration agreement was signed.

Prior to the current case of Carter v. SSC Odin Operating Co., LLC, Illinois courts had not yet ruled on the whether or not nursing homes were allowed to enforce these arbitration agreements. Therefore, this case has special significance for the future of Illinois nursing abuse lawsuits.

Continue reading "Illinois Nursing Home Mandatory Arbitration Clauses Reviewed by Illinois Supreme Court" »

The Seventh Circuit Court of Appeals in Chicago reversed a district court jury verdict on the grounds that the lower court did not separate the damages for a husband and wife on plaintiffs' jury verdict forms. Based on the lack of separate jury verdict forms, a new trial was ordered in Happel v. Wal-Mart Stores, Inc., No. 07-2264.

Happel is an Illinois prescription error case filed by a husband and wife, Kent and Heidi Happel, against a Wal-Mart pharmacy that filled a non-steroidal anti-inflammatory prescription for the plaintiff wife even though it was aware she was allergic to it. As a result of taking the medication, Heidi Happel went into anaphylactic shock. She required emergent hospitalization and ventilation as a result of the Illinois prescription error. She continues to suffer from memory loss, incontinence, seizures, nightmares, and depression.

The Illinois prescription error claim alleged that the pharmacy was aware of plaintiff's drug allergy. The Wal-Mart pharmacist had been warned about Heidi’s allergy and actually received an electronic alert that the drug was contraindicated for her. In addition, every time Heidi filled her past prescriptions at this pharmacy she advised the pharmacist of her allergy, which was something her husband, Kent, also did when he filled the prescription at issue in this case. However, despite these warnings the pharmacist went ahead and filled the prescription, which in turn caused Heidi's injuries.

Continue reading "Failure to Separate Plaintiffs' Damages on Illinois Jury Verdict Forms Leads to Reversal By Seventh Circuit Court of Appeals in Happel v. Wal-Mart Stores, Inc." »