It’s easy to call for “tort reform” when you or someone you love has never fallen victim to medical malpractice.  However, as the news story out of Florida below makes clear: (1)  no one is free from the risk of medical malpractice; (2) the consequences of malpractice are often devastating; and (3) all victims of such negligence are entitled to fair and reasonable compensation — without “one size fits all”  arbitrary caps.

The story involved a patient who checked into a hospital for surgery to correct an intestinal condition, diverticulitis.  When the surgery was complete, the surgeons closed the patient up.  There was just one problem – a sponge was left in the patient’s abdomen.  But in this case, the sponge was not what you would normally think of – kitchen-sized, or even a luxurious bath sponge.  The sponge left in the patient’s abdomen was a full sized, foot-long by foot-wide giant sponge.

The other problem for this hospital and doctors — aside from leaving a foot-long sponge in a patient’s abdomen — was their victim.  The patient whose abdomen was left containing this behemoth was a judge.

The patient in this case was Palm Beach, Florida judge Nelson Bailey, a 67-year old man who suffered months of agony after this atrocity.  Indeed, immediately after the surgery to correct his diverticulitis, Judge Bailey’s stomach pain not only did not abate, it began to get worse.  Much worse.   Our experienced medical malpractice lawyers are unsurprised.  In spite of the tendency of laypeople to laugh at “sponge stories,” any foreign object left in the body after surgery, including an innocuous-seeming sponge, is extremely painful and can lead to dramatic damage or even death.

Judge Bailey eventually complained to his doctor, who sent him for a series of CT scans.  Shockingly, not one of the abdominal CT scans performed on Judge Bailey detected the presence of a foreign object larger than many laptop computers.

After some time, of course, the sponge was found.  But because of the length of time the sponge had been in Judge Bailey’s abdomen, it was now “festering.”  Not only was the sponge removed, but physicians were required to remove a portion of Judge Bailey’s intestine, which had been damaged beyond repair by the rotting sponge.

Judge Bailey has now reached a settlement with the hospital and its owner, Tenet Healthcare System.  Next, he intends to sue the doctors who committed this atrocity.  Our Chicago medical malpractice attorneys wish him the best of luck.

Unfortunately, the amount of damages Judge Bailey can recover for what was clearly, beyond any doubt, medical malpractice is limited.  You see, his home state of Florida still maintains caps on the amount of damages a medical malpractice plaintiff can recover – a cap of the sort ruled unconstitutional by our own Illinois Supreme Court. So-called “tort reformers” continue to work hard to undo this protection, even campaigning to unseat the judges who took the courageous stand required to eliminate this unjust law.

We will not speculate as to the nature and extent of the damage suffered by Judge Bailey.  But we can say that this act of unquestionable medical negligence calls for complete compensation, for all the harm he has suffered.

Judge Bailey has now begun to speak out against caps on damages in medical malpractice cases, an issue that was never of importance to him before because, as he candidly admits, “that is not my area of law” — and also because he never before felt the draconian impact of such a law.

For a free consultation with an experienced Chicago medical malpractice lawyer at Passen Law Group, call us at (312) 527-4500.

As an example, the paper and its editorial board have many times come out in favor of so-called “tort reform”:  in particular, the Tribune has over the years often endorsed the concept of limitations on damages, particularly in medical malpractice cases.  Likewise, the paper has repeatedly printed op-ed pieces penned by advocates of “tort reform” which are neither well-reasoned nor informative – the paper has simply allowed its editorial pages to serve as a vehicle for arguments in favor of these “reform” proposals.

Those who follow the writings of our top medical malpractice lawyers are well aware of our position on issues of “tort reform” and damages caps.  These arbitrary limits on the amount of money which a victim of medical malpractice may recover are senseless and unjust.

First, they do nothing to ease the supposed spiraling costs of medical malpractice insurance, practicing medicine, and thus the cost of medical care.  In the time in which a damages cap was in place in Illinois, there was no noticeable decrease in either medical malpractice premiums or health insurance, nor in the rates charged by physicians to their Illinois patients.

Second, damages caps work a fundamental injustice on the victims of medical malpractice.  The damages awarded by juries in medical malpractice cases represent the amount of actual harm to that patient, or to the relatives left behind.  This can include the cost of medical bills, rehabilitative care and therapy, lifestyle adjustments (such as wheelchairs, or disabled-accessible vehicles and alterations to the victim’s home), a lifetime of care, lost wages, and other damages.  To set an arbitrary limit on the damages which a victim may recover is to tell the victims of the most catastrophic medical injuries that, because their injury was so severe, they cannot recover all that they have lost.  Such a result is simply cruel.

That is why our medical malpractice attorneys were so relieved when the Illinois Supreme Court struck down the arbitrary cap on damages that had been imposed at the behest of proponents of “tort reform.”  But we were equally relieved this fall when the Chicago Tribune endorsed Illinois Supreme Court Justice Thomas Kilbride for reelection.  Justice Kilbride, whose vote to strike down the Illinois cap on damages was key, had been targeted by the insurance lobby and other “tort reformers” in the hopes that eliminating him from the Court would allow future unconstitutional tort reforms to stand.

We are further encouraged by the Tribune’s recent series on doctors who sexually abuse their patients.  This topic has been of concern to our medical malpractice lawyers for some time.  For example, we recently discussed the removal of sexual abuse convictions from publicly-available physician records in the state of Illinois.  We are encouraged that the Tribune has begun to explore our state government’s failures with regard to this most abusive class of physicians.  We hope that this is the beginning of an honest look by this influential paper at the abusive practices occurring in our state, which will in turn begin an open and productive conversation about these issues, statewide.

For a free consultation with an experienced Chicago medical malpractice lawyer at Passen Law Group, call us at (312) 527-4500.

Experts estimate that claims related to diagnostic errors account for around 40% of all medical malpractice claims nationwide.  That number is much higher as to “high severity” medical malpractice claims – cases that result in serious harm or death.  As to those claims, diagnostic errors account for about half of all claims.

On average, diagnostic error claims result in settlements of around $300,000, although there is considerable variation in that amount.  And autopsy analysis covering four decades, done by researchers at Johns Hopkins University, found that each year diagnostic errors claim the lives of somewhere between 40,000 and 80,000 Americans.  Our Chicago malpractice lawyers find this figure simple inexcusable.

So how do these errors occur?  Unfortunately, there is no simple answer to that question.  Indeed, it has been said that the average diagnostic error includes at least three breakdowns.  These can include patient responsibility, as well – patients who put off seeking medical attention for far too long, or who assume after a test is done that “no news is good news” and fail to follow up.

But most of these breakdowns occur in the hands of the medical professionals whom patients have trusted with their health and lives.  One of the most common causes of diagnostic error is a physician’s failure to recognize that test results were lost or simply failed to arrive.  Another common breakdown is a doctor’s failure, after receiving abnormal test results, to follow up with the patient.

The many malpractice claims arising from these errors has caused some of our nations largest healthcare providers to stand up and take notice.  For example, Kaiser Permanente has instituted tight follow up procedures after using malpractice claims data for education.  As a result of these new procedures, the industry giant estimates that it has already caught at least 450 cancer cases that would otherwise have gone unidentified.  The medical malpractice lawyers of Passen Law Group commend Kaiser Permanente on its efforts, and hope that others take notice, and likewise take action.

Likewise, the Veterans’ Health Administration is actively developing new procedures to help doctors respond to abnormal test alerts.  The agency’s studies of malpractice claims have taught it that the sheer number of such alerts often overwhelms doctors who have no system in place, leading to errors, lost lives, and malpractice claims.  The agency is also looking to address another problem its analysis has uncovered:  when test results go to two doctors, such as a primary care physician and a specialist, often both will fail to respond, assuming that the other will follow up. The VA is looking for the best way to change this pattern.

Still, one wonders why it takes a medical malpractice case to encourage physicians to take these basic steps.  Following up on abnormal test results, or test results that fail to arrive, is such a commonsense measure that it is shocking that such procedures are not already in place.

Doctors often argue that they are forced by medical malpractice claims to practice “defensive medicine,” ordering unnecessary diagnostic tests to ward off lawsuits.  Indeed, in June the Archives of Internal Medicine reported that in a survey of physicians, a whopping 91% stated that doctors had been forced to practice defensive medicine.  Yet these physicians still fail to take basic precautions to ensure that lab results, and patients themselves, do not fall through the cracks.

Our Chicago medical malpractice attorneys are pleased to see healthcare professionals taking the problem of misdiagnoses seriously.  We are also heartened and encouraged to see that our efforts, and those of our colleagues, are resulting in meaningful change in the medical profession, saving lives and heartache.  If you or someone you love has been the victim of medical error, whether diagnostic or otherwise, we encourage you to speak to an experienced malpractice attorney to determine if you might have a claim.  Bringing your claim may be the act that saves a life – or many lives – in years to come.

For a free consultation with an experienced Chicago medical malpractice lawyer at Passen Law Group, call us at (312) 527-4500.