Illinois Lawyer Blog

Interesting opinion, Forsberg v. Edward Hospital, just came down from the Illinois Appellate Court, Second District. The plaintiff alleged that she underwent a lumpectomy on June 4, 2004 at Edward Hospital. The surgeon was Dr. Piazza. Two incisions were made - one near the armpit and one near the left breast. During surgery, sponges were used, and one was inserted into the surgical wound. Near the end of the procedure, a nurse advised Dr. Piazza that all sponges had been collected. As a result he closed and the procedure was completed.

Dr. Piazza saw the defendant on several occasions after surgery. When he felt the armpit incision was not healing, he scheduled a follow-up procedure. On July 30, 2004, during the second procedure, he discovered the sponge and removed it.

The plaintiff sued both the doctor and hospital. The hospital settled their case with the plaintiff. Dr. Piazza brought a motion for summary judgment, contending that the plaintiff had failed to disclose expert evidence that a deviation from the standard of care had occurred, as required by Illinois law. The plaintiff, in response, argued that no expert testimony was necessary, because of "common knowledge" exception to the rule requiring expert testimony in a med mal case. The "common sense" exception basically says that under certain circumstances, a juror knows, without any help from an expert, that a doctor has screwed up. And plaintiff arged that jurors would know that leaving a sponge inside a body is a breach of the standard of care. Must admit, at this point in the opinion I thougth plaintiff was in good shape. Not so fast.

The Appellate Court agreed that the "common knowledge" exception had been applied when sponges were left in the patient's body. In another 2008 decision, Willaby v. Bendersky, the Court held that even without expert evidence, a sponge left in a body established a prima facie case of medical negligence - BUT the defendant still gets an opportunity to explain just how the sponge got there. In other words, the presumption that the defendant is negligent created by the simple presence of the sponge can be rebutted.

In Ms. Forsberg's case, the Appellate Court noted that the doctor reasonably relied upon the nursing personnel[employees of the hospital] in assuming all sponges had been collected. The Appellate Court affirmed the trial court's decision to grant summary judgment on behalf of the doctor.

Much as I hate to admit it, this is a well-reasoned opinion.

[As an aside the plaintiff did offer some other arguments apart from the "common knowledge" angle. Those arguments, which are too boring to explain in an already lengthy post, were not convincing to the Appellate Court].

According to an article in today's Chicago Tribune, medical residents[medical school graduates caring for patients under the guidance of more experienced physicians] are still working way too many hours. The article, written by Mary Engel, discusses a report released Tuesday by the Institute of Medicine, an arm of the National Academies. The report recommends that residents not be allowed to work more than 16 consecutive hours. Currently, residents are permitted to work, get this, 30 hour shifts. And they are required to work those grueling hours despite a number of recent studies that have shown that that residents who work too long without sleep are, suprise, suprise, more likely to injure themselves or patients.

There are however, those who disagree with shortening the 30 hour shifts. Mark Langdorf, MD, Medical Director of the Emergency Department at the University of California Irvine Medical Center, is one of those who disagrees. In fact, he categorized the new recommendation as "nuts". Langdorf claims that any advantage gained by shorter shifts[like doctor and patient safety]would be outweighed by the disadvantage of having to turn patients over to doctors who don't know the patient's history. I'm no doctor, but I have to disagree with Langdorf. I thought the standard of care required that when any patient is turned over to another doctor, a comprehensive oral history is given to the new doc by the departing doctor. In addition, the patient's chart is presumably available, as is the nursing staff who typically has more contact with the patient anyway. And frankly, how sharp is a resident going to be after an exhausting 30 hour shift? I'm not sure I want some recent med school graduate making critical decisions about my health on Thursday morning, when he hasn't slept since Tuesday night. Hopefully these reforms will be enacted.

As previously noted in my September 20, 2007 entry, trial lawyers across Illinois were holding their breath, waiting for an important decision out of the courtroom of Judge Diane Larsen, a Cook County trial judge. Judge Larsen was presiding over a case where recent legislation that capped damages in medical malpractice cases was being challenged. Specifically, the 2005 legislation had capped "non-economic" damages, or pain and suffering, at $500,000. In other words, the law provided that regardless of the circumstances, no successful Illinois plaintiff could recover more than $500,000 for pain and suffering. I am absolutely delighted to report that on November 14, 2007, Judge Larsen struck down that law.

Judge Larsen correctly noted that the limitation placed on damages by the legislation violated the Separation of Powers clause in the Illinois Constituation. In effect, Judge Larsen noted that the legislation impermissibly permitted lawmakers down in Springfield to interfere with the responsiblity of a civil jury - determining the fair and reasonable amount of damages that can be awarded. In effect, the Judge ruled that a bunch of legislators, sitting down in Springfield, had no business, nor any right, to insert themselves arbitrarily into the evaluation of damages aspects of lawsuits. After all, it is the jury who sits through the trial, sees the exhibits, hears the witnesses and listens to the arguments of the lawyers trying the case. Isn't the jury then, in a much better position to decide the value of a case as opposed to a legislator who knows absolutely nothing about that case?

The "tort deform" movement[i.e. insurance companies, various Republicans and other regugnant life forms] spearheaded this legislation using fabricated scare tactics about doctors fleeing the state because of the "insurance crisis". That explanation, of course, is nonsense. Premiums are going up because insurance companies have made very poor investment choices. So insurance companies had a choice - be candid with their insureds and admit they made bad business decisions, or, distract their insureds with carnival-like sideshows. The insurance choice? Go with the sideshows. That explains why you see rallies downstate with doctors in their finely pressed white smocks moaning about "runaway verdicts". The tort deformers will go to great lengths to keep their insureds in the dark.

Not suprisingly, the forces of darkness have vowed to appeal Judge Larsen's ruling. Hopefully the Supreme Court of Illinois will do the right thing and uphold her decision.

On September 17, 2007, oral arguments in the lead case challenging the constitutionality of Public Act 94-677[medical malpractice caps] took place in the Courtroom of Cook County Judge Diane Larsen. The case at issue involves Abigaile LeBron, an infant. Her family is alleging medical malpractice led to her severe and permanent injuries. Lawyers on her behalf are arguing that the 2005 law placing caps on medical malpractice awards unfairly penalizes those people who are irreparably harmed due to medical errors.

Not surprisingly, the folks behind Illinois Medical Lawsuit Reform, promptly took out a page ad in local papers bashing trial lawyers and suggesting runaway verdicts had caused "out of control premiums" and led to a shortage of doctors in the state. Not so fast.

The Americans for Insurance Reform recently provided a study the found that payouts per doctor not only failed to increase from 2001-2004[the zenith of the alleged malpractice crisis]but were stable or falling. During that same time period, malpractice premiums skyrocketed. Author Robert Hunter, the Director of Insurance for the Consumer Federation of America noted "This report is proof positive that the huge medical malpractice insurance rate increases between 2000 and 2003 were not related to a jump in claims. Rather, as in the mid 1970's and mid 1980's, they were simply the result of insurance industry economics, supplemented by insurer hype intended to divert attention away from mismanagement by insurers the caused the crisis." Insurers, as they have in the past, are running around moaning about malpractice, hoping to distract their insureds from looking into how they run their business.

Now the truth about doctor shortages. A recent study noted that the explanation for any doctor shortage is due to a policy instituted in the 1990's by the MEDICAL COMMUNITY. The study noted that in the mid-90's, the medical profession called for freezes on medical school slots, and cuts in residency funding. So let's review. First, doctors decide to reduce the number of medical school graduates. Then they decide to defund residency programs to train the lucky few who were able to get a medical school spot. Natural result? Less doctors. And who do they blame? Lawyers of course. A perfect example of how the tort deform lobby is willing to twist the truth to pursue their agenda of restricting access to the courts. Oh, and one final twist. The study I am referring to can be found in March, 2007 Journal of American Medical Association. That's right a medical association journal! The article describes how these policy decisions may help explain any doctor shortages.