Justia Lawyer Rating for Robert D. Kreisman

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This case involved a medical malpractice action for a lost chance. The parties jointly sought direct discretionary review under Washington law, RAP 2.3(b)(4), challenging two pretrial rulings:

(1) whether a court should use a “but for” or “substantial factor” standard of causation in loss of chance cases; and (2) whether evidence relating to a contributory negligence defense should be excluded based on the plaintiff’s failure to follow his doctor’s instructions.

The trial court decided that the “but for” standard applies and the contributory negligence defense was not appropriate in this case. “Traditional tort causation principles guide a loss of chance case.” Applying those established principles, under the circumstances here, the Supreme Court concluded a “but for” cause analysis was appropriate and affirmed the trial court’s ruling on that issue. The court reversed the trial court’s partial summary judgment dismissing the contributory negligence defense. The case was remanded for further proceedings.
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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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In this case, a manufacturer, Intuitive Surgical Inc., sold a surgical device, the robotic surgical system, to a hospital, Harrison Medical Center, which credentialed some of its physicians to perform surgery with the device. The surgical device is a robotic surgery tool called the “da Vinci System.”

At the trial, an expert urologist for Josette Taylor, the wife of Fred E. Taylor who died four years after undergoing a failed prostatectomy surgery by the robotic device, opined that the surgeons must be credentialed in order to use the da Vinci System. The doctor testified that the da Vinci robotic surgical system is one of the most complex devices used in surgical procedures.

The manufacturer’s warnings regarding that device were at the heart of this case: whether the manufacturer owed a duty to warn the hospital that purchased the device. The manufacturer argued that since it warned the physician who performed the surgery, it had no duty to warn any other party.
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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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Kristine Haveman, 38, collapsed at home and was brought to a nearby hospital in an unresponsive condition. The emergency room personnel examined her and ordered a CT scan. Doctors interpreted the scans as normal. That evening a neurologist diagnosed a thrombus in the left cerebral artery, which necessitated thrombolytic therapy.

Because of the delay in diagnosis and treatment, she suffered cognitive deficits resulting in problems with speech and word retrieval. She also has experienced fatigue and right-sided weakness. She had been a teacher who planned to return to work but is now unable to do so.

Haven filed a lawsuit against Dr. Kenneth Dirk, an emergency room physician and his employer, Oregon Emergency Physicians, claiming that these defendants’ negligence was the cause of an eight-hour delay in administering thrombolytic medication.The lawsuit claimed that the CT scan had been misinterpreted and that Haveman was wrongfully treated with Ativan for anxiety and emotional problems before the neurologist’s stroke diagnosis.
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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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