Articles Posted in Medical Malpractice

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In the recent Illinois Appellate Court decision of McChristian v. Brink, it was held that the defendant’s attorney, representing a podiatrist and the podiatry clinic, was not prohibited from calling a controlled expert (Ill. S. Ct. Rule 213 (f)(3)) podiatrist to testify at trial when this expert was also one of the injured plaintiff’s treating podiatrists and a member of defendant’s podiatry clinic.

This court held that the Petrillo doctrine does not preclude ex parte communications with individuals who serve as the “corporate heads and are the decision makers of the defendant corporation.” Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 601 (1st Dist. 1986). The Petrillo decision and the many cases following that basic principle is that defense attorneys are not allowed to retain an expert who works for the same professional organization where the plaintiff received medical care.

In the McChristian case, the court ruled that the defendant medical group and doctor could utilize an expert witness at trial who worked for the same clinic as the defendant. Recent cases have expanded the Petrillo decision stating that a treating physician’s status can now be imputed to expert witnesses in the same professional association, even if they practice in different fields of medicine.
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In an important constitutional issue in this medical negligence and medical records case, the dispute was whether patients in the state of Florida have the right to access records under the Florida Constitution and its Amendment 7, specifically records relating to “adverse medical incidents.” These records are considered privileged and confidential under the Federal Patient Safety and Quality Improvement Act (“the Federal Act”) such that the Florida law was preempted by this federal law.

In the appeal of this case, it was concluded that adverse medical incident reports requested by patients pursuant to the Florida Amendment 7 to its constitution was not preempted by the Federal Act. The lower court in Florida held that the Federal Act did preclude access to medical records in the state of Florida, but the Florida Supreme Court reversed, holding that the Federal Act was never intended as a shield for the production of documents required by Amendment 7 and other provisions of Florida law. The court also stated that provisions of Florida law are not preempted by the Federal Act, which set up a voluntary system for hospitals to improve patient’s safety.

In this case, Southern Baptist Hospital of Florida cannot shield documents and medical records not privileged under state law or the state constitution by virtue of its unilateral decision of where to place the documents under the voluntary reporting system created by the Florida Act.
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George Hand, 63, developed incontinence and a swollen prostate. He consulted with urologist Dr. Gilbert Gonzalez who suggested using transurethral microwave therapy to heat up the prostate and cause it to shrink.

During the transurethral microwave therapy procedure, Dr. Gonzalez placed the transurethral device and then left the room. The medical technician who took over for the doctor continued the procedure, which burned a hole through Hand’s rectum and urethra, causing a great deal of pain. Ice was applied to alleviate Hand’s pain, but Dr. Gonzalez did not stop the procedure.

As a result of the injury suffered in this errant therapy procedure, Hand developed a fistula, which necessitated a colostomy. Hand is now permanently incontinent and impotent. He was a truck driver earning about $52,000 per year but has now lost his job due to his inability to drive after his injuries.
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On Oct. 30, 2009, J.S. (DOB: 5/7/09) suffered a bilateral tension pneumothorax at the defendant hospital, which resulted in a cardiopulmonary arrest for 23 minutes. A bilateral tension pneumothorax is a medical emergency, and it requires immediate treatment. This 6-month-old child was a post-cardiac surgical patient who suffered from chronic lung disease and was ventilator dependent. He was at an elevated risk of suffering from pneumothoraxes.

He also was born prematurely and was diagnosed with Down Syndrome. It was anticipated before this event that J.S. would have been discharged the next day.

By 9:30 p.m. that night, J.S.’s treating physicians should have entertained a differential diagnosis that included pneumothorax (collapsed lung) based upon J.S.’s clinical presentation (ashen colored, diminished and labored breathing), as well as pH of 7.15. The standard of care was a stat chest x-ray at bedside.
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Janice Rowland, 59, underwent a Pap smear that was interpreted as normal. Two and half years later, she developed post-menopausal bleeding and pelvic pain. She then underwent a cervical biopsy. The biopsy led to a diagnosis of metastatic cervical cancer, and she died several months later. Rowland was survived by her husband.

On behalf of her estate, her husband sued Quest Diagnostics, which was the company that misread the Pap smear. It was alleged in the lawsuit that its cytotechnologist misinterpreted the Pap smear slides. If read correctly, the slide would have showed evidence of cancer and necessitated review by a pathologist. The lawsuit did not claim lost income.

The jury signed a verdict for $4 million. However, it was reported that post-trial motions are pending.
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Deborah Larkin, 42, underwent laparoscopic surgery. Over the next two days she complained of severe pain even with the use of medication. Larkin also developed tachycardia, low sodium levels, hypotension and an abnormally high white blood cell count.

A kidney physician, a nephrologist, diagnosed sepsis prompting the surgeon to order a swallow study which did not show any internal leakage. However, the laboratory results did show decreased CO2 and increased lactate levels.

Larkin’s conditioned worsened. She was transferred to intensive care the next day in respiratory distress with kidney failure. The surgeon performed exploratory surgery, which revealed that a 4-millimeter gastric leak was the cause of Larkin’s septic shock.
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The U.S. Court of Appeals for the 7th Circuit in Chicago has overturned a summary judgment order that was entered by a U.S. District Court judge over whether an insurance company, Sun Life & Health Insurance Co. (U.S.), should pay death benefits to the husband of the plaintiff when he died after tearing his left Achilles tendon.

Sun Life had moved for summary judgment claiming it was not responsible for paying the $92,000 death benefit to Lee Ann Prather, the wife of the decedent, Jeremy Prather. Prather injured his Achilles tendon while playing basketball. About two weeks after his surgery to repair the tendon, he died at age 31. A blood clot, or deep vein thrombosis (DVT) developed in his injured leg and had broken loose and traveled to his lung. The clot or pulmonary embolism caused cardiac arrest and his subsequent death.

Sun Life declined to pay the $92,000 benefit on the ground that Prather’s injury on the basketball court was not the sole cause of his death. Instead, Sun Life argued that the surgery that Prather underwent following the injury was a contributing factor to his death.
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In this medical negligence case, the Illinois Appellate Court took an interlocutory appeal on an issue of first impression regarding the application of the Petrillo doctrine on a unique set of facts. The plaintiff, Jacqueline McChristian, who was injured by a podiatrist, Dale Brink, DPM, claimed that the trial court violated the Petrillo doctrine when it permitted ex parte communications between McChristian’s treating podiatrist and the defense counsel of Performance Foot and Ankle Center LLC, which was a defendant in the case in which the treating podiatrist is a member.

The court was asked to answer a question of first impression that was whether defense counsel, who represents the defendant Dr. Dale Brink and the defendant Performance Foot and Ankle LLC, is prohibited from conducting ex parte communications with McChristian’s treating podiatrist, Dr. Timothy Krygsheld, who is also a member, and in the control group of the defendant.

The plaintiff argued that under the Petrillo doctrine, ex parte communications are barred between plaintiff’s treating podiatrist and defense counsel, in order to preserve the patient’s trust and confidence in her podiatrist, as well as to honor the podiatrist’s duty as a fiduciary to refrain from helping the patient’s legal adversary.
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Andrea Tate was 57 when she underwent surgery to remove a noncancerous tumor at the Hospital of the University of Pennsylvania. After the surgery, the staff at the hospital administered Heparin to prevent blood clots. Tate’s coagulation rate was measured using an activated partial thromboplastin time (APTT) test.

Over the next six days, four consecutive APTT tests revealed that Tate’s coagulation was moving from the low end of the normal range to the high end of normal. As a result, the hospital staff stopped doing the test.

Days later, Tate suffered a catastrophic brain bleed. Previously a financial services project manager earning $100,000 a year, she is now paralyzed in her right leg and on her left side. She is mostly confined to bed and requires 24-hour care provided by her husband, who has left his job to take care of his wife.
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The appeal to the Illinois Supreme Court arose from the Circuit Court of Peoria County, which granted the motion of the defendants, Dr. Clarissa Rhode and Central Illinois Radiological Associates Ltd. The plaintiff — Randall Moon — filed a complaint under the Illinois Wrongful Act (740 ILCS 180/1, et seq.) and the Survival Act (755 ILCS 5/27-6). The complaint was dismissed as time-barred. The Illinois Appellate Court affirmed the dismissal and held that the two-year statute of limitations for filing the complaint began to run at the time of the decedent’s death and not after the plaintiff discovered defendants’ alleged medical negligence.

On May 18, 2009, Randall Moon’s mother, 90-year-old Kathryn Moon, was admitted to Proctor Hospital in Peoria, Ill., for rectal prolapse. On May 20, 2009, she underwent a perineal proctectomy. During her hospitalization, she experienced numerous complications including labored breathing, pain, fluid overload, pulmonary infiltrates, pneumoperitoneum, sepsis and an elevated white blood cell count.

On May 23, a CT scan of her chest and abdominal area was ordered. Dr. Rhode, a radiologist, read the CT scans on May 24, 2009. Randall W. Moon, who is Kathryn Moon’s son and the plaintiff in this case, returned from out-of-state to his mother’s bedside on the evening of May 27, 2009. Her oxygen levels had significantly dropped and she was not awake or responsive. Two days later she died in the hospital.
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