Justia Lawyer Rating for Robert D. Kreisman

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There is an old saying that hindsight is always twenty-twenty, i.e., we can always see something coming after the fact. When it comes to medical cases, it is often easy to see the signs and symptoms of a disease after it has run its course. However, diagnosing a disease in its early stages is not always easy; medicine is not a perfect science and doctors can’t always diagnose the problem. Therefore, in order to prove that a doctor negligently failed to diagnose a disease, a patient needs to prove that the doctor should have been able to diagnose the problem, but chose not to.

In the Illinois medical malpractice lawsuit of Zachary Monahan v. Joseph Giordano, D.O., Edward Health Services d/b/a Edward Medical Group, Case No. 07 L 563 (Will County), the plaintiff alleged that his doctor chose not to diagnose his heart disease. However, the WIll County jury disagreed and found the doctor not guilty.

Zachary Monahan had presented to Dr. Giordano, his primary care physician, for several office visits between April and May 2001. During the course of those visits, Monahan continued to complain of a persistent fever, night sweats, and muscle aches. While Dr. Giordano conducted several tests during that time, it was not until Monahan’s final office visit on May 12, 2001 that Dr. Giordano chose to order a blood culture.

The blood culture results showed that Monahan had a blood-born infection. Due to the serious nature of these results Monahan was immediately notified and admitted to Edward Hospital to begin intravenous antibiotics. The cause of his infection was then diagnosed as bacterial endocarditis, an infection of the lining within the heart’s chambers.

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Some people assume that whenever there is a negative medical outcome that it is the result of medical negligence. However, in some cases there can be a poor outcome without the presence of medical malpractice. Take for instance the Lake County medical malpractice lawsuit of Estate of Patricia Nickl v. Dr. Barry S. Rosen, 08 L 1015, where the jury found in favor of the defendant doctor.

The case of Nickl arose after the 64 year-old decedent, Patricia Nickl, died within days of undergoing surgery performed by the defendant, Dr. Rosen. Nickl had a longstanding history of abdominal and gallbladder problems and had already undergone four major abdominal surgeries. These prior surgeries were a significant piece of Nickl’s medical history because it increased the number of adhesions in her abdomen. Adhesions are bands of scar tissue that tend to form around surgical sites. Because the adhesions bond together areas that weren’t previously joined, they tend to complicate surgeries and increase the risk for perforations, or holes.

However, despite the large number of adhesions in Nickl’s abdominal cavity, she was still eligible for a laparoscopic cholecystectomy, i.e., the surgical removal of her gallbladder. The surgery itself was successful, but Nickl suffered from some post-operative complications. She remained hospitalized for several days longer than anticipated because of persistent pain and a lack of bowel movement.

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A DuPage County medical malpractice verdict was returned in favor of the surviving family members of five day-old Isaac Diaz. Baby Isaac died after physicians delayed in performing surgery that could have prevented his death from a bowel obstruction. The $1.5 million verdict was entered in Estate of Diaz v. Central DuPage Hospital, et al, 06 L 448 (DuPage County).

Just five days after his birth, Isaac Diaz began vomiting yellow bile and had blood streaked through his stool. After the symptoms failed to resolve on their own, his mother took Isaac to Central DuPage Hospital’s emergency room. Within twenty-five minutes of his arrival, Isaac was seen by the Dr. Panfil, an emergency room doctor. Dr. Panfil took the preventive measures of placing Isaac on antibiotics and ordered an IV be placed. Then, in an attempt to figure out the source of Isaac’s vomiting and blood-streaked stool, Dr. Panfil ordered a range of labs, x-rays, and consulted with Dr. Pearce-Falls, the hospital’s pediatrician.

By the time Dr. Pearce-Falls consulted with Dr. Panfil, the x-rays results were already available. Because the x-rays were negative, Dr. Pearce-Falls elected to order an upper GI series, which would show the infant’s stomach region in more detail, possibly highlighting a problem unseen on the x-rays. Because of the severe nature of baby Isaac’s symptoms, the upper GI series was ordered STAT, meaning it was meant to be done urgently.

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In many medical malpractice lawsuits, plaintiffs are critical of physicians for failing to make proper referrals or diagnose a condition in a timely fashion. However, if the patient does not keep appointments or take some responsibility in their own care, then it is difficult to find fault with the physician.

In the Illinois medical malpractice case of Melissa Brooks, Loren Brooks v. Surendra Gulati, M.D., 08 L 838, the plaintiff was critical of her physician, Dr. Gulati, for failing to diagnose a vascular tumor in her spine. Brooks first presented to Dr. Gulati in January 2002, at which point she relayed that she had been having back pain, tingling, and numbness for the past several months.

In response to these complaints, Dr. Gulati referred Ms. Brooks for an MRI of her lumbar and thoracic spine. He then conveyed the radiology results to her over the phone – the report suggest a possible arterial venous malformation, or a possible benign spinal tumor. In order to follow up on these findings, Dr. Gulati claimed he ordered an additional MRI of Ms. Brooks’s brain and scheduled a follow up appointment.

However, the 27 year-old Brooks did not follow through with the additional brain MRI, nor did she show up for her scheduled visit with Dr. Gulati. This missed visit was at the center of Brooks – the plaintiff contended that Dr. Gulati should have contacted her after the missed appointment, whereas Dr. Gulati contended that he had acted within the standard of care and was not responsible for making sure Ms. Brooks kept her appointments.

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In medical malpractice lawsuits, there is sometimes a thin line between what constitutes negligence and what does not. Take for example the Cook County lawsuit of Jennifer Irwin v. Alan B. Loren, M.D. and Daniel R. Conway, M.D., Advanced Surgical Associates, S.C., 08 L 2760. The defendant doctors committed a surgical error while removing the plaintiff’s gallbladder; however, the jury found the doctors were not guilty of medical negligence.

The surgery at issue in Irwin took place at Northwest Community Hospital in March 2006. The 43 year-old plaintiff was scheduled to have her gallbladder removed in a laparoscopic cholecystectomy procedure performed by Dr. Alan Loren. Performing a surgery laparoscopically means that the surgeon relies on a camera to see inside the body’s internal structures. Doing so allows the surgeon to make a much smaller incision and drastically decrease recovery time. However, this also means that the surgeon is not directly looking at the relevant organs and needs to correctly interpret what is seen on the camera.

Unfortunately, in Ms. Irwin’s case, Dr. Loren did not correctly interpret the camera’s images, at least not at first. Dr. Loren initially misidentified Irwin’s common bile duct as the cystic duct. As a result of this misidentification, Dr. Loren incorrectly clamped the common bile duct with surgical clips and cut it. The common bile duct is responsible for carrying bile from the liver and gallbladder into the upper part of the small intestine and is an important component of the digestion process.

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A gene therapy study done at the University of Pennsylvania has yielded profoundly significant results for cancer patients. A trial study done on three leukemia patients was able to successfully send two of those patients’ cancer into remission. While the program is still in its trial stages, the gene cancer study could prove to be a major advance in the fight against cancer.

All three of the studies participants had been diagnosed with advanced chronic lymphocytic leukemia and were no longer candidates for chemotherapy or a bone marrow transplant. Therefore, for these patients the experimental study represented their only treatment option. The goal of the University of Pennsylvania study was to try and get the patients’ own immune system to fight the cancer.

To do so, the scientists focused on the patients’ T-cells, which is a white blood cell that works to fight tumors and viruses. The process involved removing millions or billions of the person’s T-cells, splicing them with new genes, and then returning the modified T-cells to the person’s body. What was unique about the University of Pennsylvania study was that it was the first time a modified version of the H.I.V. virus has been used in cancer gene therapy research.

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A recent report by the National Joint Registry for England and Wales brings more bad news for patients who have received DePuy metal-on-metal hip replacements. According to the report, the DePuy metal-on-metal device has failed in over one-third of the British patients who’d received it. While the study does not reflect the failure rates for U.S. patients, it does report on data that we do not collect in the U.S. and therefore can be a useful indicator of potential failure rates in the U.S.

Metal-on-metal artificial hips were designed to last longer than their plastic counterparts, yet the medical advances in this case might have done more harm than good. The British report clearly shows that these all metal hip devices are failing at a much faster rate than artificial hips composed of alternate materials, including a combination of metal and plastic. And while the British report is not the first of its kind, its findings collaborates earlier studies which demonstrated that all metal hips are not as durable as the other options.

The main theory on why the metal-on-metal hip devices fail at a faster rate centers on the fact that every component is made of metal. While it would seem that metal would be more durable than plastic, in reality the all metal construction has led to other unexpected problems. As the metal hip socket rubs against the metal hip joint, the movement seems to release tiny particles of the various metals. This debris is released into the surrounding hip cavity and not only causes crippling injuries to the person, but also diminishes the effectiveness of the metal artificial hip. Therefore, it is the design defect of the all metal construction that is leading to the increased failure rate of metal-on-metal hip devices.

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The First District Appellate Court of Illinois affirmed a not guilty jury verdict in the medical malpractice lawsuit of Raven Taylor v. The County of Cook, et al., No. 1-09-3085. While the plaintiff appealed the verdict on several counts, perhaps the most significant of the appellate court’s rulings was in regards to the content of an expert’s testimony. While Taylor’s counsel argued that a medical expert could not testify regarding a medical treatment if he did not use it in his own practice, the appellate court found otherwise. It held that a medical expert could offer opinions about a medical treatment even if he used a different treatment in his own practice.

Taylor arose out of medical treatment Raven Taylor received at Cook County Hospital after experiencing migraines, joint stiffness and pain, and loss of her peripheral vision. While Taylor also received treatment for these various symptoms at Oak Forest Hospital, it was the treatment plan developed at Cook County Hospital that was the subject of the medical malpractice lawsuit. The Cook County Hospital staff suspected that Taylor’s symptoms were being caused by polymyositis, an inflammatory muscular disease that can eventually lead to muscular problems. While polymyositis generally worsens muscle function slowly, in some cases it can progress rapidly and even lead to permanent disabilities.

Taylor unfortunately had the quick acting form of polymyositis and was in fact left with permanent disabilities. Her attorney and medical experts contended that her poor outcome was due to the fact that the physicians at Cook County Hospital were not aggressive enough in diagnosing and treating Taylor’s severe case of polymyositis. However, the defendants’ medical experts testified that while the doctors could have employed alternate treatment plans, that their actions were still within the acceptable standard of care. It was this testimony that was the subject of the appellate court’s case review.

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Medical malpractice lawsuits are composed of two main elements: negligence and damages. Therefore, simply showing that a medical provider’s treatment is negligent is not enough – a plaintiff must also show that the negligence led to a significant amount of damages. In the Cook County medical malpractice lawsuit of Cindy Zaleski v. Elmhurst Eye Surgery Center, Kovach Eye Institute, Ltd. and Dr. Kevin Kovach, 08 L 7387, the issue was whether or not the plaintiff’s damages were extensive as she claimed.

The medical negligence case dealt with an eye surgery Cindy Zaleski had when she was 19 years-old. Zaleski underwent a phakic intraocular lens implantation surgery to correct the nearsightedness in her left eye. This particular surgery involves implanting a plastic or silicone contact lens in the eye and is meant to eliminate the need for eyeglasses or disposable contacts.

Phakic lens surgery is a fairly new procedure, therefore the long-term risks are not known. However, the short-term risks include: possible vision loss, retinal detachment, infection, and the development of increased intraocular pressure. This last risk is what happened in Zaleski’s case. After undergoing the eye surgery at Elmhurst Eye Surgery Center, she developed increased pressure in her left eye. Her medical malpractice complaint alleged that the defendant ophthalmologist, Dr. Kevin Kovach, failed to diagnose and treat this pressure in a timely fashion.

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Just as there is a difference between state laws and federal laws, so is there a difference between medical clinics who receive federal funding and those who don’t. If a medical facility receives federal funding, its staff are considered federal employees and as such are subject to federal laws. This means that if a doctor at a federally-funded clinic commits medical malpractice then the corresponding medical malpractice claim will be handled by a federal court, not a state court.

The Seventh District of the Illinois Appellate Court recently reviewed whether a medical malpractice claim brought against federal employees was filed during the statute of limitations. If a claim is not brought during the appropriate statute of limitations, it is then barred from litigation, i.e., it cannot be filed or proceed to trial. However, the appellate court found that Arroyo v. United States, 10-2311 (7th Cir. 2011), had been brought during the appropriate time frame and therefore the $29.1 million verdict was upheld.

Arroyo was a birth injury lawsuit involving claims that the neonatal staff failed to recognize and treat baby Christian Arroyo’s infection in a timely manner. Christian had contracted a bacterial infection from exposure to his mother’s blood during his May 2003 birth. Generally, pregnant women undergo a variety of blood work tests during the month before their due date. However, because Arroyo was premature, his mother had not yet undergone these tests and therefore doctors were not aware that would have tested positive for Group B Streptococcus (GBS).

Because exposure to GBS can lead to permanent injuries in babies, doctors take several precautions when a mother has not undergone these prenatal tests. Most importantly, the medical staff must be on the lookout for any signs or symptoms of neonatal sepsis, i.e., an infection in the baby’s bloodstream. If there is even a suspicion of neonatal sepsis, the standard of care for treating such infections is to administer antibiotics to begin fighting the suspected infection. If the sepsis is not treated immediately, it can lead to severe brain damage.

This is what happened in Arroyo’s case. Despite signs and symptoms that Arroyo had contracted an infection, his doctors failed to administer antibiotics. As a result, Arroyo suffered from severe and permanent brain injuries, which include spastic quadriplegia, cerebral palsy, seizure disorder, communication deficits, the inability to swallow, incontinence, and permanent pain. It is likely that if Arroyo had received antibiotics in a timely manner that his injuries would have been drastically reduced.

However, the Arroyo family was not immediately aware that Christian Arroyo’s brain damage could have been avoided. It was not until the mother gave birth to her second son in July 2004 that she became aware of the importance of neonatal antibiotics and began to understand that Christian’s permanent brain injuries could have been avoided if not for the doctors’ negligence. The family filed a medical malpractice lawsuit against those doctors a year and a half after becoming aware of the true cause of Christian’s injuries.

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