Cook County Medical Malpractice Verdict Including Doctor’s Financial Incentive for Surgery Affirmed By Illinois Appellate Court

As patients we trust that our doctors are operating in our best interests rather than their own. Furthermore we expect to be treated not as dollar signs, but as people.
Unfortunately a recent Cook County medical malpractice case that came before an Illinois Appellate Court demonstrates that this is not always the reality. In Martinez v. Elias, et al., No. 1-08-0265, the plaintiff claimed that an orthopedic surgeon performed unnecessary surgery on his back and was motivated to do so for financial gain.

The trial jury agreed with the plaintiff and found against the defendant surgeon. The defendant doctor appealed the case on the claim that the trial court had erred in allowing the admission of evidence of the surgeon’s financial motive for the surgery. However, the Illinois Appellate Court disagreed with the defendant and affirmed the Cook County medical malpractice verdict.

The plaintiff, a journeyman carpenter, injured his lower back and shoulder at work while lifting a sheet of drywall. The plaintiff saw an orthopedic surgeon who recommended a discogram to confirm the diagnosis of a herniated disc and help identify the specific sites of pain. However, the plaintiff instead opted to see another orthopedic surgeon who diagnosed the plaintiff with underlying degenerative disc disease at different levels of his lumbar spine.

At this point, the plaintiff returned to his original physician who then performed the discogram. Based on those results, the doctor also concluded that the plaintiff had herniated discs in several places. However, this orthopedic surgeon recommended an endoscopic discectomy, which he also went on to perform. After the procedure was completed, the plaintiff began to experience new pain in his right leg.

Almost 2 years later the pain continued and the plaintiff filed suit against the doctor and his physician’s group, alleging that the doctor breached his duty of care by performing the surgical procedures in the first place. Plaintiff also alleged that the doctor’s negligent acts caused him to suffer severe and permanent injuries.

The plaintiff’s physician expert witness testified that the defendant doctor deviated from the standard of care by performing the discogram because it resulted in a false positive result, leading the doctor to perform an unnecessary surgical procedure. After the Cook County medical malpractice trial, the jury returned a verdict in favor of the plaintiff in the amount of $500,000 plus $155,000 for the plaintiff’s future medical expenses.

On appeal, the defendants argued that the trial court erred when it denied the defendants’ motion in limine to bar any reference or argument that economic motivation played any part in the doctor’s care of the plaintiff. The defendants contended that motive is not an element of a medical malpractice case and that financial motivation is irrelevant.

However, the court found otherwise on appeal. The plaintiff successfully showed that financial-incentive evidence established the breach of the standard of care because spinal surgeons should not perform and interpret discograms for their potential surgical patients because the presence of financial incentive, regardless of whether it actually motivates the surgeon, it destroys the guarantee of objectivity in the discogram.

One of the reasons that the surgical procedures performed by the doctor were not indicated was because prior to the surgery the plaintiff had no radicular, or radiating, pain from his back into his legs. In addition, the appellate court found that the evidence of financial incentives supported the plaintiff’s claim that the surgical procedures were unnecessary.

So while Cook County medical malpractice cases do not typically focus on defendant physicians’ motives, this type of evidence can be considered when it relates to breaches in standard of care.

Kreisman Law Offices has been handling Cook County medical malpractice cases for over 30 years, serving those areas in and around Cook County, including Chicago, Evanston, Naperville, and Park Ridge.

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