Justia Lawyer Rating for Robert D. Kreisman

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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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As patients, we put our faith in doctors to identify our medical problems and properly treat our ailments. However, in order to achieve a successful doctor-patient relationship, oftentimes doctors need compliance from their patients. Whether by accurately describing our symptoms, or by following up on all of our doctors’ recommendations, as patients we need to be active participants in our own medical treatment. And in medical malpractice cases, juries are reluctant to hold doctors liable for any negligence if the doctors can prove that the patient/plaintiff did not hold up their end of the bargain.

The Illinois wrongful death lawsuit of Estate of Rogers Givens, deceased v. Clarendon Hills Family Practice LLC, et al., 09 L 113, is a perfect example of the importance of actively participating in your own medical care. The decedent, Rogers Givens, began seeing Dr. Hutto, a family practice doctor, for complaints of hypertension, asthma, and eczema. Dr. Hutto prescribed Givens medication to control his hypertension and asthma; however, subjective notes in the medical records indicated that Givens did not always take his medications. His lack of compliance with his medications presumably is why his high blood pressure was never properly controlled.

Almost a year after being placed on the blood pressure and asthma medications, Givens presented to Dr. Hutto with the new complaints of shortness of breath and tightness in his chest when moving. Dr. Hutto attributed these new symptoms to bronchitis and an acute asthma attack and began prescribing treatment for these diagnoses. Following the course of treatment, Givens reported feeling better and testing supported the diagnosis of resolving pneumonia.

However, as a precaution, Dr. Hutto had also recommended on two separate occasions that Givens obtain an echocardiogram. Givens ignored these recommendations and never scheduled these tests. By choosing not to follow his doctor’s instructions, Givens not only put his medical health at risk, but compromised Dr. Hutto’s ability to properly diagnose and treat his medical conditions.

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It is common knowledge that the earlier cancer is diagnosed, the greater the chance of survival. However, we continually see medical malpractice lawsuits where a treating physician failed to recognize the signs and symptoms of cancer in a timely manner. The Cook County medical malpractice lawsuit of Carmela Sahagun v. Allan Aven, M.D., et al., Case No. 08 L 5346, is yet another example of a failing to diagnose cancer in its early stages.

Forty-six year-old Carmela Sahagun presented to Dr. Aven, her primary care physician, complaining of a lump in her left breast as well as a hardness near her breast bone. In order to pinpoint the problem, Dr. Aven referred Sahagun for a CT scan of her chest. The diagnostic test returned signs of a 1.9 cm mass in her left lung; the radiologist further indicated in his report that he suspected the mass might be malignant.

Upon receiving the CT scan results, Dr. Aven appropriated consulted with a Dr. Loren, a surgeon, who recommended a breast biopsy to rule out breast cancer. In addition, Dr. Loren indicated that if the breast biopsy was negative for malignancy, then he would recommend a lung biopsy to rule out lung cancer. Dr. Loren then performed the breast biopsy on Ms. Sahagun, the results of which were negative. However, rather than preforming a lung biopsy, Dr. Loren dismissed Ms. Sahagun from his care and never saw her again.

Ms. Sahagun returned to Dr. Aven for further care and treatment. Over the course of the following year, Ms. Sahagun presented to Dr. Aven’s office on several occasions, complaining of a cough and chest pain at each visit. However, despite these complaints and despite Dr. Loren’s recommendation, almost a whole year passed before Dr. Aven finally ordered a lung biopsy. By this time, the lung biopsy revealed that Ms. Sahagun had Stage IV lung cancer.

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The right to a trial by jury is a central tenant to American law. As a result, courts tend to be reluctant to overturn a jury’s verdict. However, there are some exceptions to this rule. For example, if a jury’s verdict is found to be in conflict with current laws, a court might overrule the verdict. Also, if a jury award contradicts the jury’s own statements and opinions, then a judge or court might be inclined to vacate the jury verdict.

The Illinois wrongful death case of Philemont Garcia, etc. v. Seneca Nursing Home, etc., 2011 Ill.App. (1st) 103085, demonstrates what happens when an jury contradicts itself. The Cook County jury awarded the decedent’s estate $1 million as compensation for Roberto Garcia’s fall to his death after he climbed out of a fifth story window while staying at Seneca Nursing Home. In theory, the jury award meant that the jury had found the defendant nursing home negligent for contributing to the decedent’s death. Yet in a response to a special interrogatory, the same jury had stated that the nursing home could not have foreseen the circumstances leading to the resident’s death.

The case facts of the Illinois wrongful death lawsuit centered around Roberto Garcia, a resident at Seneca Nursing Home. Garcia suffered from paranoid schizophrenia, along with blindness, abnormal muscle tone, and chronic restlessness. He suffered from delusional behavior and occasional hallucinations. In addition, Garcia had difficulty walking on his own and was essentially wheelchair dependent. Yet despite his physical limitations, Garcia was found wandering away and hiding at times and had made more than one attempt to try and climb out his bedroom window.

According to trial evidence, there was no record of Garcia ever being identified as presenting a risk for self-harm, suicide, or escape. As a result, no clear plan was ever developed to prevent him from climbing out of his window. The lack of preventive measures was partly explained through testimony by Garcia’s psychologist and psychiatrist, both of whom testified that they did not think that the fifth floor windows in Garcia’s room even opened. They further stated that if they had known that they did, they would have been more proactive in formulating a preventive care plan to limit Garcia from escaping through the window.

At the end of the trial, the defense submitted a special interrogatory to the jurors. A special interrogatory is a question a party submits to the jurors, typically aimed at deciding a major legal component of the case. In Garcia, the defense submitted a special interrogatory that asked whether the jurors believed it was “reasonably foreseeable” that Garcia would kill himself or act self-destructively. The Cook County jury answered in the negative, but then went on to enter a $1 million jury verdict in favor of the nursing home’s negligence.

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To many women, pregnancy and childbirth is a magical time that ends with the arrival of a new family member. However, for many women pregnancy and labor are anything but easy. Some women suffer difficult pregnancies and are placed on high risk status, or put on bed rest. Other women undergo difficult and complicated labor and deliveries, sometimes resulting in birth injuries to the baby. However, a recent article in The New York Times highlighted another potential complication of the birthing process – stillbirths.

Despite America’s status as a wealthy nation that offers high quality prenatal care, stillbirths continue to be a problem for many pregnant women. A group of papers put together by The Lancet, a British medical journal, stated that about 1 in 300 babies continue to be stillborn in high-income countries. And while about 98 percent of the global stillbirths occur in low- or middle-income countries, the report calls into question what doctors and families can be doing to decrease the incidences of stillbirths in the U.S.
Some of the risk factors for stilbirths include maternal obesity, maternal age over 35, smoking during pregnancy, and multiple pregnancies, e.g., twins or triplets. Reports suggest that obesity is the cause of 18 percent of stillbirths in higher-income nations, a statistic that is not surprising considering other medical reports citing the increase in adult obesity in the U.S. However, while the negative effect of obesity on one’s heart and general health are well-known, perhaps the effect of obesity on one’s fetus is not as well-known. Educating American women about the link between maternal obesity and stillbirth could at least make more women aware about this problem and perhaps work towards lowering the cases of maternal obesity, just as educating women about the risks of smoking during pregnancy has lowered the rate of smoking-related stillbirths.

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The field of medicine is generally associated with healing – we go to our doctors when we don’t feel well and expect them to treat us. Yet a large part of medicine is also prevention. Women undergo yearly mammograms to try and catch breast cancer early on, while people with high blood pressure take medication to try and prevent heart attacks or strokes.

Doctors and nurses are responsible for identifying the risk of future medical problems and developing a treatment plan to avoid that risk. For example, some patients with decreased mobility and strength might be at risk for falling during a hospital admission or rehab stay. Therefore, nurses need to evaluate patients to determine whether or not their conditions puts them at an increased risk for falling. Once the degree of risk is determined, the medical staff can work together to create a prevention plan to insure the patient’s safety. It is when these risks are not properly evaluated and prevented that nursing malpractice and medical negligence can occur.

The Illinois wrongful death lawsuit of Sorce v. Shorehaven Health and Rehab. Ctr., 09 CV 3083 (Waukesha County), illustrates what can happen if there are not adequate fall prevention measures in place. The 76 year-old Sorce had been admitted to the Shorehaven Health and Rehabilitation Center as part of his recovery from brain surgery. During his admission, Sorce was using a walker to get around and was generally given assistance with getting up and around.

However, one day towards the end of his stay, Sorce was sitting in his recliner chair when he realized he needed to use the restroom. As was his practice, Sorce pressed his call button to request nursing assistance to the bathroom. However, as more time passed and his call continued to go unanswered, Sorce elected to try and reach his walker and the bathroom by himself. Sorce raised himself out of his recliner, took a few steps across the room, but then fell on the floor and hit his head.

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Privilege is a legal term that infers an exception from a particular rule or requirement. For example, attorney-client privilege refers to the fact that attorneys are not required to disclose information gained from communication with their clients. However, the concept of privilege is not limited to the law alone. Doctor-patient privilege protects information gained during the course of medical treatment from being used in court without the patient’s permission.

The purpose of these forms of privilege is to encourage people to be candid with their lawyers and doctors in order to help those professionals perform their jobs. The idea is that if a person fears legal ramifications as a result of their communications with their attorneys and physicians, that he would be less candid and potentially withhold important information. In this way privilege is meant to protect clients and patients.

However, there are times when these forms of privileged can be waived, allowing other parties access to this formerly confidential information. For example, an Illinois judge recently reviewed the circumstances under which doctor-patient privilege is waived; Flowers v. Owens, No. 09 C 2716. In examining the case facts, the judge needed to ensure that the plaintiff-patient’s rights were protected, while also considering whether maintaining the privilege put the defense at an unfair advantage.

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