Articles Posted in Medical Malpractice

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The Illinois Appellate Court for the 2nd District issued a Supreme Court Rule 23 Order in July 2017 that affirmed the jury’s finding in favor of Advocate Condell Medical Center in a medical malpractice death case. The court delivered its opinion on Oct. 4, 2017.

In this case, the appeals panel found issue with neither the trial judge’s admission of expert testimony nor a hospital lawyer’s ex parte conversation with a witness. The opinion echoes and makes legal precedent of the finding of a Supreme Court Rule 23 Order that the appeals court issued in July 2017.

Judith Caldwell, the daughter of Jeanette M. DeLuca, filed a medical malpractice lawsuit in March 2014 in Lake County, Ill., concerning the wrongful death of her 92-year-old mother who choked on food and died while receiving medical care from Advocate Condell Medical Center in Libertyville, Ill. Caldwell claimed in her lawsuit that Condell chose not to adequately monitor DeLuca after her procedure on April 23, 2013 and allowed her to eat without ensuring that her dentures were in her mouth and failed to ensure that she was sufficiently recovered from surgery to eat.
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James P. McKillip underwent a sleeve gastrectomy for weight reduction at a hospital in Rock Island, Ill. This took place in January 2012 by the defendant general surgeon, Dr. James Schrier. McKillip was 46 years old at the time.

According to the report of this jury trial, McKillip’s expert testified at trial that Dr. Schrier improperly stapled the nasogastric tube into McKillip’s stomach and also was negligent in creating a hole at the junction between the esophagus and his stomach.

As a result, McKillip suffered from two large perforations and gastric leaks at these two sites in the stomach, which caused him to develop sepsis and undergo three months of antibiotic therapy. Eventually he will require additional surgery to remove the remaining portion of his stomach.
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Michael Shimko was 17 years old when he went to the Geisinger-Kistler Clinic for treatment of what he thought was a hemorrhoid. A second-year resident, Dr. Christian Basque, diagnosed a hemorrhoid without examining Shimko. Dr. Basque prescribed a rectal suppository.

Eight months later, Shimko’s mother contacted Dr. Stephen Evans, Shimko’s family physician, and reported that the supposed hemorrhoid, which she described as a lump on his buttocks, had become large and painful. Dr. Evans reviewed Shimko’s medical records, refilled the suppository prescription and instructed the staff to refer Shimko to a colorectal surgeon. The referral was never made.

Over the next fourteen months, after Shimko’s initial visit to the clinic, he became unable to sit, prompting a visit to an urgent care clinic. There, medical providers diagnosed a complex pilonidal abscess. A pilonidal abscess or cyst occurs in the cleft at the top of the buttocks. The cyst and abscess can cause severe pain and often becomes infected.
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Ms. Doe, age 37, developed shortness of breath eight days after giving birth. A CT angiogram to rule out a pulmonary embolism revealed an enlarged right-sided axillary lymph node. Despite this finding, Ms. Doe’s healthcare providers ordered no further follow up. Over a year later, Ms. Doe discovered a lump in her right breast.

Testing of the lump by biopsy of the breast mass and lymph node led to a diagnosis of metastatic Stage IV breast cancer with lung involvement.

Ms. Doe is the mother of three children and a food service worker earning just minimum wage. Sadly, Ms. Doe’s condition at Stage IV is terminal.
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Michael Mills was 28 and had a history of smoking and borderline hypertension. He experienced chest pain for a year. He had seen a cardiologist, Dr. Hassan Kassamali, who ordered an echocardiogram, which was shown to be normal.

Mills had two additional appointments with Dr. Kassamali for his continued symptoms of chest pain, but the physician ordered no further tests.

About three weeks after his last cardiology appointment, Mills suffered a fatal cardiac arrest. The autopsy revealed triple-vessel coronary artery disease. Mills is survived by his parents and a minor son.
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Ezekiel Flores, 89, was admitted to MacNeal Hospital in Berwyn, Ill., in January 2013 for complaints of leg pain. While he was there, an abdominal CT scan came back with abnormal results, which led the doctors to suspect possible colon cancer over diverticulitis.

The defendant gastroenterologist, Dr. Manuel Alva, did a colonoscopy on Jan. 11, 2013. It showed there was no cancer. However, during the procedure Flores sustained a perforated colon, which led to nearly fatal sepsis, a colostomy for eleven months and later a colonostomy reversal surgery in combination totaled medical expenses of $201,950.

Flores maintained at this jury trial that he refused to undergo the colonoscopy several times but the defendants, the physicians, persisted and persuaded him to do so without fully disclosing the risks and alternatives and thus choosing not to obtain Flores’s informed consent.
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Rose Newsome received treatment at the University of Illinois Hospital on March 12, 1995 when she alleged that she sustained a brain injury caused by medical negligence. Newsome and her husband, Hatler, hired attorney Zane Smith and his law firm to represent both of them in a medical malpractice lawsuit against the University of Illinois Hospital and several doctors who were involved in her treatment.

The attorney hired Dr. Bruce Livingston to serve as a consulting medical expert to assist with the Newsomes’ case. Dr. Livingston presented a medical consultation agreement that he had drafted and had signed by Smith and the Newsomes whereby Dr. Livingston would have a lien for the total amount of his fees plus any needed attorney fees.

Dr. Livingston was to be paid directly by the attorneys unless ordered otherwise by the court. Should his fee go unpaid, “the parties authorize Livingston to take a default judgment against them for his entire fee plus costs, interest and attorney fees.”
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Mary and Terry Cohan filed a medical malpractice lawsuit against Medical Imaging Consultants claiming that the company and its medical providers were negligent in the treatment that caused Mary’s breast cancer to progress undiagnosed for one year. It was alleged that the delay in diagnosis led to her suffering damages from a shortened life expectancy and physical and mental suffering.

The medical defendants moved for a directed verdict at the end of the Cohan case at the jury trial on the basis that plaintiffs failed to make a prima facie case of causation and damages against the defendant. The elements of a medical negligence claim, like all negligence claims are: duty, breach of duty, causation and damages.

The district court judge granted the defendants’ motion, concluding that there was no sufficient proof of damage or causation other than the loss of chance of a lower rate of non-recurrence of cancer, which did not constitute a proper measure of damage at the time.
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In 2009, Gary Williamson was a postal worker who sought damages under the Federal Tort Claims Act (FTCA) for medical malpractice on the part of the Department of Veteran Affairs in the treatment of injuries he suffered in his right foot. Williamson usually worked a walking route, walking up to 8 miles each day on the job. He was also doing other physical activities, including running and CrossFit, which could have contributed to the severity of his injury.

Because of his injuries, Williamson eventually received benefits under the Federal Employees’ Compensation Act (FECA): $79,379.66 in temporary total disability net compensation from March 20, 2010 through Oct. 25, 2012; $27,801.27 for medical expenses; and $19,974.19 as a lump-sum “scheduled award.” This federal statute is the federal law for workers injured on the job. This is the federal version of the workers’ compensation act that most states have, including Illinois.

In addition to the benefits he was receiving by way of FECA, Williamson sought damages under the Federal Tort Claims Act for medical malpractice by the V.A. for the treatment of his injuries, which included two unsuccessful surgeries. The U.S. District Court judge denied the government’s motion for summary judgment. On appeal, the Sixth Circuit reversed that order, denying the motion for summary judgment.
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A decision by a McHenry County, Ill., trial court dismissing the medical malpractice lawsuit on the grounds of res judicata bar on claim-splitting has been reversed by the Illinois Appellate Court. In this medical negligence lawsuit, the trial judge erroneously determined that only an express agreement from defendants could satisfy the “agreement in effect” exception to claim-splitting. The defendants’ lawyers, just before the jury trial would have started, implied that they would not object to a refiling by plaintiff as defense counsel suggested in that refiling was a method to preserve the plaintiff’s lawsuit without associated costs.

In 2008, the plaintiff Robert Kantner filed a multi-count medical malpractice lawsuit against defendants Ladonna Jo Waugh, M.D., Mercy Health System Corp., Mercy Harvard Hospital Inc., Mercy Center for Metabolic and Bariatric Surgery and Mercy Alliance Inc. Kantner’s lawsuit was based on permanent injuries he alleged he suffered following bariatric surgery. His lawsuit in different counts alleged (1) informed consent and (2) negligence.

In 2009, the defendants moved to dismiss the informed-consent claim and the trial court granted that motion. Kantner and his lawyers proceeded to trial on the negligence claim. Thus, the plaintiff spit off one count of his complaint leaving the other count to proceed.
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