Justia Lawyer Rating for Robert D. Kreisman

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In a recent article appearing in the Harvard Law Record, the title of the article says it all: “Civil Trials Are Fast Becoming Extinct.”  Civil jury trials and bench trials have seen a dramatic decline since 1986. This trend has followed in both state and federal courts and includes criminal cases as well.

The article, written by Frank J. Riccio D.M.D., J.D., wrote that there are no reasons why civil jury trials have become so infrequent. Some say that the Rules of Civil Procedure have encouraged lawyers and clients to engage in pretrial discovery in attempts to settle cases rather than prepare cases for trial. The trend began in the late 1980s when liberal discovery rules went into effect, although the decline began years before.  Nothing particular happened that made trying jury cases more expensive than in the past.

The jury trial decline in federal courts coincides with the Supreme Court’s 1986 decisions instructing trial courts to grant summary judgments unless the plaintiff proves the probability of the allegations.

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Mr. Doe, age 48, was diagnosed with prostate cancer. He underwent laparoscopic bilateral lymph node dissection surgery by two HMO urologists. During this surgery, the obturator nerve was severed, which left Mr. Doe unable to control his right leg. He was unable to continue in his job as a grounds maintenance worker. He has lost $5,000 in income. He now works at a less strenuous job for the same salary.

Mr. Doe sued the HMO claiming its urologists negligently performed the laparoscopy. The lawsuit specifically claimed that the doctors chose not isolate and protect the nerve while trying to remove the lymph node packet and chose not reattach the nerve after it was transected.

The defendants argued that the injury to the obturator nerve is rare.  They also maintained that severing that nerve is a known complication of this surgery. Before trial, the parties settled confidentially.

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A Georgia Appellate Court has held that a physician who chose not to timely diagnose an injury postoperatively was not the act that began the running of the statute. Instead, the court ruled that the statute began to run from the time of the patient’s later follow-up office visit.

Laura Woodley Danson underwent a laparoscopic hysterectomy that was done by Dr. Dominique Smith, an obstetrician. She experienced symptoms, including stomach pain, after the surgery and complained about this in her postoperative visits with Dr. Smith.

Dr. Smith misdiagnosed the symptoms as a bladder infection and said too much gas had been used during her hysterectomy. Danson consulted another physician who diagnosed a kidney obstruction caused by the hysterectomy and an injured bladder.

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Not-for-profit hospitals are tax exempt. Seven of the ten most profitable U.S. hospitals are nonprofit, according to new research. One hospital, located in Urbana, Ill., is involved in a contentious court battle. The decision could determine whether medical facilities are paying their fair share of taxes.

According to this study, delivery of patient care was a money-loser for 55% of hospitals in 2013, which was the year the study was done. About one-third of these hospitals made some money, up to $1,000 per patient. About 12% of those in the sample research group made more than $1,000 per discharged patient. The highly profitable hospitals were mostly for-profit corporations. In this group were Medical City Dallas Hospital in Texas and Swedish Medical Center in Englewood, Colo.

The not-for-profit hospital Carle Foundation Hospital in Illinois claimed tax exemption, but state appeals court in January 2016 ruled Illinois law allowing hospitals to avoid taxes is unconstitutional.

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The plaintiff Saleh Mizyed appealed from the trial judge’s order granting summary judgment, which dismissed his medical malpractice complaint against the defendant Palos Community Hospital. The hospital was named as a party defendant under the theory of vicarious liability for the alleged negligence of Mizyed’s treating physicians.  The Illinois Appellate Court for the First District affirmed the dismissal.

Mizyed was treated at Palos Community Hospital (Palos) in early 2009. He is a native Arabic speaker. Although he speaks a limited amount of English, he was deposed in this case with the assistance of an interpreter. At his deposition, he testified that he cannot read or write in either English or Arabic, and that he relies on his adult children to read and translate documents for him. His adult daughter, Nadera (who testified that she has no difficulty speaking or reading English), sometimes went with Mizyed to his doctors’ appointments.

On Jan. 26, 2009, Mizyed visited his primary care physician, Dr. Odeh, for a regularly scheduled appointment. Nadera accompanied him to this doctor’s appointment.  Based on the EKG at the doctor’s office, Dr. Odeh told Mizyed that he needed to go to a hospital immediately. According to Nadera, Dr. Odeh told Mizyed that “it looks like you’re having a heart attack right now.” Dr. Odeh called an ambulance and Mizyed was transported to Palos.

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Leanna Loud was 39 years old when she underwent a digital mammogram. The radiologist and defendant, Dr. Jeffrey Short, an employee of Charleston Radiologists, read the mammogram as showing dystrophic calcifications in the right breast; this was not present on an earlier mammogram.

Dr. Short characterized the calcifications as benign and did not order any additional testing.

Approximately 2 years later, she discovered a lump in her right breast. She was diagnosed as having Stage III invasive ductal carcinoma.

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A  man with impaired cardiac, respiratory and cognitive function was diagnosed as having a benign brain tumor. This was a tumor that — in most cases — could have been safely removed by a neurosurgeon. A neurosurgeon, known here only as Dr. Roe, performed the surgery to extract the tumor. However, Dr. Roe was unable to remove the mass during the surgery.

As a result of a failure to remove the tumor, the patient suffered vision loss and balance problems after the procedure. He died of unrelated causes 22 months later.

His family sued Dr. Roe and the clinic where Dr. Roe worked, claiming that Dr. Roe chose not to follow an accepted approach in the surgery to remove the tumor.

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Dwayne Kantorowski underwent surgery to treat a brain tumor. He was just 45 years old, but he later experienced stroke-like symptoms. He promptly went to a hospital emergency room where he underwent an EKG. Although the test showed abnormalities, the attending emergency physician did not order additional blood tests or cardiac enzyme tests and did not refer him for a cardiology consultation. That failure to refer was the claimed cause of his resulting death

Kantorowski was hospitalized for several days and then discharged. Just three days later however, he suffered a heart attack that left him in a vegetative state for 3 weeks before he died. He was survived by his parents.

His family filed suit against the emergency room physician and the primary care physician who treated Kantorowski during his hospitalization. It was alleged that the doctors chose not to arrange for a cardiology consultation in light of the abnormal EKG, which indicated he had suffered a heart attack. The lawsuit did claim lost income.

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The family of Jill Prusak brought a medical malpractice lawsuit against a doctor and two hospitals. Prusak died in November 2013. The lawsuit brought by Sheri Lawler on behalf of the family of Jill Prusak was filed in April 2014 within the two-year statute of limitations for a wrongful-death case. The lawsuit contended that the medical malpractice occurred in November 2007 when a doctor “failed to order appropriate diagnostic testing,” which would have revealed that Prusak’s symptoms were caused by cancer.

Section 13-212(a) sets out a two-year statute of limitations for medical-malpractice claims and ends by declaring: “But in no event shall such action be brought more than 4 years after the date on which the act or omission or occurrence alleged in such action to have been the cause of such injury or death.”

The lawsuit for medical malpractice was filed in August 2011 within the two-year statute of limitations so the case would continue. Utilizing the relation-back statute (Section 2-616(b)), the Prusak family argued that the complaint saved the wrongful-death claim from the statute of repose.

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In this case before the U.S. District Court for the Northern District of Illinois, the Federal Rules of Civil Procedure were examined closely with respect to a subpoenaed nonparty deposition. The court stated that nonparties will be protected by undue burden and that, in weighing requests to depose nonparties, courts will consider four factors:

  1. The person’s nonparty status;
  2. Relevance of discovery sought;
  3. Need for discovery; and
  4. Breadths of the request.

In this case, the plaintiff Prabhjot Uppal graduated as a physician from Rosalind Franklin University of Medicine and Science in 2005.  He obtained a residency at Lutheran General Hospital in Park Ridge, Ill.

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