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Archive for June, 2009

President Obama Rejects Caps On Damages In Medical Malpractice Cases

Monday, June 22nd, 2009

President Obama’s speech at the annual conference of the American Medical Association in Chicago was a highly anticipated event, not only for casual followers of the President’s political agenda, but also for Chicago medical malpractice lawyers. Health care reform is front and center, once again, and so is the issue of “tort reform.”

Medical malpractice is considered a “tort” in which the injury is caused by negligence, or a failure to provide the appropriate standard of medical care to the victim. The person who caused the injury may be a doctor, surgeon, nurse, hospital or other licensed healthcare professional.

One of the most controversial tort reform issues involves imposing caps on non-economic (or non-liquidated) damages, such as pain and suffering, in medical malpractice awards. Proponents for caps on non-economic damages argue that jury awards and settlements are too high, causing medical malpractice insurance premiums to rise, thereby increasing the cost of healthcare and forcing doctors to flee to more protective jurisdictions.

However, the evidence does not support these tort reformists. Several independent studies have concluded that medical insurance premiums have not significantly declined in states that have imposed caps on non-economic damages, and are not predicted to significantly decline if Illinois enacts similar caps.

More importantly, an arbitrary cap on damages in a medical malpractice benefits the insurance companies at the expense of those most seriously injured and most in need of help. For example, in Missouri, non-economic medical malpractice awards are capped at $350,000. Therefore, if a newborn child suffers a catastrophic permanent injury such as hypoxia induced cerebral palsy as a consequence of medical malpractice, she may only recover $350,000, despite requiring full-time care for the rest of her live, and never being able to live a normal life.

Further, there is no evidence to support the argument that caps on non-economic damages will impact the filing of “junk” lawsuits. Medical malpractice lawsuits in Illinois and nationwide are extremely expensive to prosecute — filing fees, expert witness fees (often $500-$1,000/hour), exhibits, testimony, etc. The more complicated the medical malpractice case, the more expert witnesses may be required.

In an environment without caps on non-economic damages, Chicago personal injury lawyers must be extremely selective in the medical malpractice cases they handle — because the attorney usually pays all the expenses and attorney’s fees if the plaintiff loses her case. In jurisdictions with caps on non-economic damages, personal injury lawyers will be even less inclined to invest in meritorious medical malpractice cases because of the significant expenses and a capped potential recovery.

If Chicago medical malpractice lawyers are less inclined to file worthwhile claims, then people who have suffered will continue to suffer. The only people who win with caps on medical malpractice awards are the insurance companies.

Thankfully, President Obama told the American Medical Association (and the American public) that medical malpractice caps are “unfair to people who’ve been wrongfully harmed.” He stated that other health care reform options should be pursued.

President Obama outlined other options in an article he wrote in May 2005 with Senator Hilary Rodham Clinton that was published in the New England Journal of Medicine. The article, “Making Patient Safety the Centerpiece of Medical Liability Reform,” argues for improved patient safety through open communication and confidential disclosure of medical errors over caps on medical malpractice awards.

A year earlier, in May of 2004, Libby Perl, the Century Foundation Program Officer, wrote an article entitled “The Medical Malpractice Controversy” that drew a similar conclusion. She goes on to explain “how limits on awards for “pain and suffering” have the greatest adverse affect on the poor, underemployed, and children, because they would get smaller awards for economic damages such as lost wages.” The people stand to lose if caps are imposed on medical malpractice awards.

The health care reform debate is complex in general, and the debate on caps for medical malpractice awards only adds to the complexity and potential confusion.

What is clear is that caps on medical malpractice awards are not the answer. Millions will be denied their legal rights to seek appropriate compensation and damages when negligence of doctors, hospital staff and other healthcare professionals caused unnecessary pain and suffering. Passen Law Group’s Chicago personal injury lawyers will continue to support the rights of the people to access our courtrooms and to seek the justice they deserve.

Tags: Chicago Medical Malpractice Lawyer, Chicago Personal Injury Lawyer
Posted in Medical Malpractice | No Comments »

Spoliation of Evidence in Illinois Medical Malpractice Actions

Thursday, June 18th, 2009

To prove a “spoliation of evidence” claim relating to an Illinois medical malpractice action, the plaintiff (and his or her Chicago medical malpractice lawyer) must show that “but for” the missing evidence, it had a “reasonable probability of succeeding” in the underlying medical malpractice case. Midwest Trust Services, Inc. v. Catholic Health Partners Services, No. 1-06-2257 (June 8, 2009).

In Midwest Trust, the estate of a man who died of a heart attack about 48 hours after he underwent cervical fusion surgery brought an Illinois medical malpractice lawsuit against the hospital and doctors. The estate also filed a “spoliation of evidence” claim, alleging that the hospital failed to preserve an “occurrence report,” which is typically created after a death at the hospital within 48 hours of surgery. The estate also alleged that the hospital failed to preserve “cardiac-monitoring strips” generated on the date the decedent was admitted to the hospital for surgery. The estate alleged that the failure to preserve this evidence impaired its ability to prove the underlying medical malpractice action.

The estate went to trial in its medical malpractice action. The jury returned a verdict in favor of two defendants, but was unable to reach a verdict against the remaining defendants and a mistrial was declared.

After the case was remanded, the estate amended its spoliation claim to assert that “but for” the defendant’s acts or omissions, it “would have prevailed” in the underlying medical malpractice case. The trial court granted the defendants summary judgment in favor of the hospital because it found that the loss of the cardiac-monitoring strips did not cause the estate to be unable to prove its medical negligence case. Even without this evidence, the plaintiff’s medical expert witness was able to render his standard-of-care opinions against the hospital.

On appeal, the appellate court stated that the “primary issue” in the spoliation action was whether the loss, destruction or altercation of the cardiac-monitoring strips prevented the plaintiff from proving its case against the hospital in the underlying medical malpractice action. The court held that the estate failed to show that “but for” the missing cardiac-monitoring strips, it had a “reasonable probability of succeeding” in its medical malpractice action against the hospital.

The appellate court found that the estate’s medical expert witness, a cardiologist, testified that after a review of the decedent’s medical records he had sufficient information to form an opinion based upon a reasonable degree of medical certainty that the hospital deviated from the standard of care, without reviewing the cardiac-monitoring strips. Accordingly, the appellate court held the trial court did not err in granting summary judgment in favor of the hospital.

Midwest Trust sets a difficult precedent for a Chicago medical malpractice lawyer to prove a spoliation claim in a lawsuit arising out of medical negligence. It also puts personal injury lawyers in a “Catch 22″, requiring them to either: (1) find a medical expert to give a standard-of-care opinion in a medical malpractice action, without potentially critical pieces of evidence that has been destroyed, and forego the spoliation action; or (2) forego the medical malpractice action (and do not retain a medical expert to give standard-of-care opinions), and proceed with the spoliation of evidence action under the “but for” standard.

Tags: Chicago Medical Malpractice Lawyer, Illinois Medical Negligence Lawyer
Posted in Medical Malpractice | No Comments »

Client, Not Attorney, Must Sign Response to Request to Admit, Even if Client Cannot be Located

Wednesday, June 17th, 2009

Chicago personal injury lawyers occasionally represent difficult clients, including those that are sometimes difficult to locate. The Illinois Appellate Court for the First District recently decided a case that stresses the importance of effective, timely communication between the client and his or her personal injury lawyer.

In Brookbank v. Olson, No. 1-08-1069 (Ill. App. Ct. 1st Dist. April 8, 2009), the plaintiff brought a personal injury negligence lawsuit arising out of a car accident. The plaintiff issued a Request to Admit Facts pursuant to Supreme Court Rule 216(c), which sought admission from the defendant that: (1) an attached exhibit was a true and accurate statement of the plaintiff’s medical expenses; (2) the charges were fair, reasonable and customary charges for the medical services performed; and (3) the charges were related to the injuries suffered as a result of the accident. The defense counsel objected to the requests to admit, and stated that he was “unable to contact [d]efendant to determine the veracity of any admission or denial.” Defense counsel was also unable to produce his client for a deposition. Defense counsel then signed and verified the responses in defendant’s absence, denying the matters of which admission was requested.

The trial court certified the following question of law for consideration by the appellate court: “Whether the trial court has authority to allow only a party’s attorney to sign and verify a response to a Rule 216 request to admit facts, when the attorney cannot locate the party, i.e., his client.” The appellate court held that the Chicago car accident lawyer cannot sign and verify a response to a Request to Admit Facts, even when he cannot locate his client.

The appellate court stated that Rule 216(c), as well as supporting Illinois case law, including Moy v. Ng, 341 Ill. App. 3d 984 (2003) and Vision Point of Sale Inc. v. Haas, 226 Ill. 2d 334 (2007), require responses to requests to admit “by the parties and not by their attorneys.” Further, the rule requires that “the party to whom the requests to admit are directed must serve upon the requesting party either the sworn statement denying the matters of which admission is requested or written objections which need not be sworn.” Therefore, a personal injury lawyer may serve written objections on the client’s behalf.

The court acknowledged instances where an Illinois car accident lawyer may be compelled to enter an appearance despite the inability to locate a client, such as where an insurer has a duty to defend its insured under its policy. In such a case, the court’s ruling places the client (and his or her lawyer) in a difficult position when the client cannot be located. Nevertheless, the appellate court stated that “these policy issues are properly addressed to the consideration of the supreme court,” which has the authority to revise the rules.

Tags: Chicago Car Accident Lawyer, Chicago Personal Injury Lawyers
Posted in Car Accident Law | No Comments »

Fate of Illinois Medical Malpractice Tort Reform Act to be Decided by Supreme Court

Monday, June 15th, 2009

As discussed in a previous post, Illinois personal injury lawyers nervously await a ruling by the Illinois Supreme Court, which will decide the fate of the Malpractice Reform Act of 2005 (“Act”). The Act caps jury awards for pain and suffering and other non-liquidated damages in medical malpractice lawsuits at $500,000 against physicians and $1 million against hospitals.

In November 2008, the Illinois Supreme Court heard oral arguments in the case Lebron v. Gottlieb Memorial Hospital, a medical malpractice case brought by the mother of a 3-year-old child born with cerebral palsy and other severe brain damage. As a result of medical negligence, the child will have to be fed through a tube for the rest of her life and may never live independently. Under the damage caps required by Act, the 3-year-old child with a permanent catastrophic brain injury is limited to the same monetary damages as someone with a far less significant injury.

In Lebron, a circuit court held that the arbitrary cap on non-liquidated damages in the Medical Malpractice Reform Act of 2005 was unconstitutional, and relied on an earlier Illinois Supreme Court decision in 1997, which held that caps on non-economic (i.e. “non-liquidated”) damages infringe on the jury’s role in determining appropriate compensation. In fact, the Illinios Supreme Court has twice before struck down this type of “one size fits all” cap on non-liquidated damages as a violation of the Illinois Constitution.

Unfortunately, even if the Illinois Supreme Court decides to invalidate this Act as unconstitutional, it will eliminate other positive insurance reforms contained in the Act. For instance, the Act forces insurancce companies to provide greater transparency on rate-setting and payouts, which results in greater compensation in the insurance industry, and lower insurance premiums for doctors. However, the Act contains an” inseverability clause,” meaning that if one portion of the law is struck down as unconstitutional, such as the arbitrary cap on non-liquidated damages, the other provisions of the Act, such as the state regulators’ ability to collect and publish actuarial data used by medical malpractice insurers in Illinois, will likewise be struck down.

Nevertheless, the unfairness and negative impact of the Medical Malpractice Reform Act of 2005 felt by patients, such as the 3-year-old child in Lebron, requires the Illinois Supreme Court to find the Act unconstitutional, as it has done in the past.

Tags: Illinois Personal Injury Lawyer, Tort Reform
Posted in Personal Injury Law | No Comments »

Archive for June, 2009

President Obama Rejects Caps On Damages In Medical Malpractice Cases

Spoliation of Evidence in Illinois Medical Malpractice Actions

Client, Not Attorney, Must Sign Response to Request to Admit, Even if Client Cannot be Located

Fate of Illinois Medical Malpractice Tort Reform Act to be Decided by Supreme Court

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