Articles Posted in Medical Malpractice

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The trial judge in a medical malpractice jury trial correctly adopted the jury instructions in the case over an alleged botched hernia surgery. The Illinois Appellate Court affirmed that ruling. The jury returned a verdict in the defendant’s favor.

The appellate court ruled that the trial judge did not err when giving jury instructions and that the instruction tendered was accurate and without undue repetition. Justice David W. Ellis delivered the opinion of the appellate court.

Jeffrey S. Goldberg sued Dr. N. Scott Peckler and North Suburban Surgical Consultants in the Circuit Court of Cook County. The lawsuit alleged negligence against Dr. Peckler and vicarious liability against North Suburban Surgical Consultants.
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Amanda Hoover delivered her child by cesarean section at Banner-University Medical Center. After the delivery, Hoover experienced chronic abdominal pain, intermittent fever and chills, nausea, vomiting and diarrhea. She underwent testing and was later diagnosed as having a foreign body in the lumen of her sigmoid colon.

Hoover underwent surgery during which a surgical sponge and a 20-cm section of her sigmoid colon were surgically removed.

She sued Banner-University Medical Center and Banner University Medical Group alleging that leaving a surgical sponge in her body after the cesarean section delivery amounted to a deviation from the standard of care.
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A Missouri Appellate Court held that a patient suing a healthcare provider for improperly accessing confidential information was not required to file an affidavit of merit. In Illinois, an affidavit of merit under Illinois Code of Civil Procedures,735 ILCS 5/2-622, is required in filing a medical malpractice lawsuit as is the case in Missouri.

In the related case, J.J., a minor, received inpatient treatment at Poplar Bluff Regional Medical Center. A facility employee, who was not involved in J.J.’s treatment, allegedly accessed his medical records and revealed to her daughter, a former girlfriend of J.J., that he was receiving inpatient treatment.

J.J. was a student. Other students at J.J.’s school learned of this information, leading to harassment and bullying.
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On Sept. 22, 2016, Stephanie Delknap was seen by Dr. David Crawford for treatment of gastroesophageal reflux with hiatal hernia. Dr. Crawford “attempted” a partial fundoplication procedure. In the following 24 hours, Delknap experienced gagging and retching, could not tolerate food, and had “very poor input and output.” She was nonetheless discharged the following day. Within a few days, she suffered an acute recurrence of her hiatal herniation, became septic and then unfortunately died.

Jeremy Delknap and Shane Delknap, the plaintiffs, as independent co-administrators of the estate of Stephanie Delknap, filed suit against Dr. Crawford, the Peoria Surgical Group Ltd., Cynthia Martin (Delknap’s nurse), and the Methodist Medical Center of Illinois.

The plaintiffs alleged that Martin cared for Delknap and observed that she was in constant pain with intermittent crying, anxiety and signs of tachycardia and hypoxia but chose not to fully report these conditions to the doctors.
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Ms. Doe, age 36, experienced chronic pelvic pain. She consulted with Dr. Roe, a gynecologist, who allegedly diagnosed Stage II endometriosis. Dr. Roe performed a laparoscopic hysterectomy and oophorectomy. Five days after that surgery, Ms. Doe went to Dr. Roe’s office complaining of nausea, vomiting, fever and decreased voiding. Dr. Roe, it was alleged, did not order imaging.

That same night, Ms. Doe went to a hospital’s ER where she was diagnosed as having fluid in her abdomen, hydronephrosis and acute kidney failure. Ms. Doe underwent urgent surgery to treat her injured ureters and bladder. She suffered complications following the surgery, including a fistula, kidney infections, recurrent UTIs and lost bladder sensation.

Ms. Doe sued Dr. Roe, alleging that the doctor had transected one of her ureters and obstructed the other during the hysterectomy. Ms. Doe also alleged that her bladder had been injured during the surgery.
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Nicholas Carusillo, 29, had a history of bipolar affective disorder, manic depression and substance abuse. After experiencing signs of mania and behavioral outbursts, he was admitted to an inpatient psychiatric unit. His medication, including Seroquel and lithium, were increased until his condition stabilized.

He was then discharged to Metro Atlanta Recovery Residences Inc. At the facility, Dr. Richard Waldman evaluated Carusillo and discontinued the lithium in addition to lowering the Seroquel dosage.

Carusillo’s longtime mental health provider was in contact with a Metro Atlanta staff member and explained that it was imperative for Carusillo to receive his medications. Nevertheless, Dr. Waldman lowered the Seroquel dosage once again.
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Edward Peers was eating dinner with his family when he felt a jolt of pain in his back and radiating chest pain. He was taken to Doylestown Hospital where he was examined by an emergency department physician who ordered two EKGs.

The test results were not concerning for acute coronary syndrome, and a chest x-ray did not reveal any acute findings. Nevertheless, while at the emergency department, Peers experienced shortness of breath, nausea and bradycardia.

The emergency department doctor allegedly diagnosed nonspecific chest pain and heat exhaustion. The doctor ordered that Peers be discharged after receiving IV hydration.
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Jonathan Buckelew, 32, experienced neck pain and a headache for four days. In addition, he suffered bouts of blurred vision and ringing in his ears. He went to a chiropractor — Dr. Michael Axt — who completed a neck adjustment.

When Buckelew sat up after the adjustment, he reported dizziness; he appeared disoriented. Dr. Axt called 911, and Buckelew, who became unresponsive, was taken to North Fulton Hospital.

By the time he arrived at the hospital, he was able to move only his right hand. An emergency physician, Dr. Matthew Womack, allegedly diagnosed a possible dissection and ordered a CT of the brain and a computed tomography angiography (CTA) of the neck. A radiologist, Dr. James Waldschmidt, interpreted the CTA showing a potential vertebral artery dissection.
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Kerri Downes, 22, discovered a lump in her right breast while showering. She went to Axia Women’s Health, where she was seen by a nurse practitioner, Eileen Carpenter. Carpenter diagnosed fibrocystic breast changes, and a follow-up exam was scheduled for two weeks later.

At this appointment, Carpenter again diagnosed bilateral fibrocystic changes. Approximately nine months later, Downes experienced itching and burning of the skin over her breast. She consulted a physician, who noticed that Downes’s right breast was larger than her left and that she had a mass in her right breast.

An ultrasound and a biopsy led to a diagnosis of Stage IIB breast cancer, with metastasis to three lymph nodes. Downes underwent a bilateral mastectomy with lymph node dissection, chemotherapy and radiation as well as breast reconstruction. Downes is now 26 and has a reduced chance of survival.
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Alfred J. Giudicy appealed the circuit court’s judgment dismissing his medical malpractice case without prejudice after he chose not to file an affidavit of merit within 180 days. The filing deadline is required under § 538.225. Giudicy argued that § 538.225 violates the Missouri Constitution.

It was also contended by Giudicy that the medical providers waived their defense of failure to file an affidavit of merit and that he substantially complied with the statute. The Missouri Supreme Court rejected those arguments and affirmed the circuit court’s judgment.

Section 538.225 serves “to cull at an early stage of litigation suits for negligence damages against health care providers that lack even color of merit” and “protect the public and litigants from the cost of ungrounded medical malpractice claims.” See Mahoney v. Doerhoff Surgical Serves, Inc., 807 S.W. 503, 507 (Mo. Banc 1991). The section also prevents the plaintiff from threatening a medical provider with a groundless claim before settlement in lieu of the high cost of defense.
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