Posted on October 02, 2013 in Uncategorized

By: Robert F. Geimer

We’ve talked about dangerous doctors.  Now let’s focus on the good ones – doctors who take the time to care for their patients.  I’ve long said that the #1 thing you can do for your health is find a primary care doctor you like and get along with, and then see that doctor every year no matter what.  In fact, the best time to see your doctor is on a scheduled visit when you are feeling well.  Your doctor can talk with you, do a comprehensive physical exam, order appropriate testing, and follow-up as necessary.  Over time, your doctor will compile a comprehensive set of baseline data that will be useful if and when medical issues develop.  Most importantly, your doctor will know you and your medical history and, hopefully, be your advocate.

Does a caring doctor matter?

In a study in the British Medical Journal, patients with irritable bowel syndrome were given one of three treatments:  1) no treatment; 2) a placebo in the form of a fake acupuncture treatment; and 3) the same fake acupuncture except administered by a caring and empathetic practitioner who spent time with the patient.  The results?  28% of group 1 reported relief; 44% of group 2 reported relief; and a whopping 62% of group 3 reported relief.  The authors concluded that factors such as warmth, empathy and time spent with the patient might actually affect clinical outcome.  This study reinforces something we have long suspected - that sometimes the best medicine is a caring doctor.

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 Posted on September 06, 2013 in Uncategorized

By: Robert F. Geimer

In a stunning report by Saul Elbein of the Texas Observer, a neurosurgeon in Texas killed and severely injured patients for several years until authorities finally suspended his medical license in June, 2013.  Among his victims was a 55 year-old woman who died after undergoing a routine operation for back pain.  According to the medical examiner, the cause of death was listed as “therapeutic misadventure.”  Apparently, the doctor sliced through one of her arteries and she bled to death.  She is survived by her husband and daughters.  The report is replete with similar horror stories, including reports of patients being paralyzed by inexcusable medical errors.

Even though other physicians alerted authorities, using phrases like “the worst surgeon I’ve ever seen,” Texas authorities took years to act.  Part of the problem was a series of conservative “reforms” that severely limited patients’ options for holding dangerous doctors and hospitals accountable for bad care.  For example, Texas passed a law that allows patients to hold hospitals accountable only if they can prove that the hospital acted with “malice.”  But it also passed a law to make it extremely difficult to obtain hospital records to prove a case.

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 Posted on September 06, 2013 in Uncategorized

Assisted Living facilities, operating virtually regulation free across Illinois and the U.S., are increasingly the subject of litigation in cases of neglect and incompetence as our nation’s exploding senior population becomes more dependent on full time care.

As our population ages, there has been a nearly insatiable demand for assisted living facilities. The 1990s saw unprecedented growth in this sector as major corporations bought, built, and filled assisted living facilities nationwide.  Emeritus Senior Living, America’s largest such corporation, raked in a stunning $1.6 billion in revenue in 2012.  Publicly traded on the New York Stock Exchange, Emeritus has an astounding number of facilities across the country, including five within 25 miles of Chicago.

Emeritus has also come under fire recently, as numerous lawsuits have been filed alleging neglect and incompetence.  Especially disturbing has been their documented lack of care for residents suffering from dementia, which number around 2/3 of all assisted living residents nationally.

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 Posted on August 30, 2013 in Uncategorized

By: Shawn S. Kasserman

We all know (or should know) not to text and drive. But, have you thought about the dangers of knowingly texting a driver? An Appeals Court in New Jersey has - and determined that you could be liable if your text causes that driver to injure someone.

In September of 2009, two teens texted each other (as they customarily did 62 times per day). Unfortunately, one of the texters was driving down a highway as he exchanged the digital messages. At the same time a motorcyclist and his passenger were approaching from the opposite direction. The texting driver drifted across the center line and hit the approaching motorcycle head on.

Seventeen seconds after his last text - the driver was calling 911 for assistance for the people on the motorcycle whose lives he had just forever changed.

Finding that both the driver (receiver of the text) and the sender of the text are potentially responsible for the crash, a New Jersey Court focused its attention on whether the nondriving texter knew or should have known that the recipient is driving and  would be distracted by the text. Ultimately the court found that the “remote texter” had no reason to know her recipient was driving and thus shared no liability for the crash. However  the opposite could also be true: you will share in the responsibility for a crash where you knowingly distract a driver via text messages. Even worse, you will know that your actions contributed to ruining the life of an innocent victim.

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 Posted on August 22, 2013 in Uncategorized

By: Robert F. Geimer

According to an investigation by USA Today, thousands of doctors who have been found guilty of serious misconduct, including some who have been banned by hospitals and other medical facilities, have never been disciplined by state licensing authorities responsible for protecting patients from dangerous doctors.  The investigation by USA Today reporters Peter Eisler and Barbara Hansen found:

• From 2001 to 2011, nearly 6,000 doctors had their clinical privileges restricted or taken away by hospitals or other medical facilities, but 52% - more than 3,000 doctors – never were fined or hit with a license restriction, suspension or revocation.
• Nearly 250 of the worst offenders, doctors labeled an “immediate threat to health and safety,” never lost their licenses and are still practicing today.

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 Posted on August 12, 2013 in Uncategorized

By:  Daniel M. Kotin

I was summoned for jury duty in the Circuit Court of Cook County Law Division last week.  Although my service lasted only four hours, it was a good experience and it inspired me about our justice system, which happens to provide the foundation for my career.

My first exposure to the process involved watching the educational video which is played to everyone in the holding room who responded to their jury summons.  Not only was I surprised by how accurate and informative the short video was, but I was also impressed by the fact that most of the other citizens sitting in the room appeared engaged and interested in what they were watching.

Thirty-six of us were then taken to a courtroom where we were greeted by an impressive judge and two competent, veteran trial lawyers (both of whom I have known for years).  The voir dire (jury selection) questioning was fair. The dispute in the case (relating to the causal connection between a knee injury and a car crash) appeared legitimate.  All potential jurors were treated respectfully by the lawyers as well as the court staff.  Everyone seemed determined not to waste our time.

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 Posted on August 08, 2013 in Uncategorized

Medical device manufacturers funnel billions into their coffers while patients struggle with financial ruin after receiving routine procedures. 

By: Timothy S. Tomasik

$13,000 or $78,000.  If you needed an artificial hip, which would you rather pay?  That stark choice was recently presented to 67-year-old Michael Shopenn of Colorado.  Mr. Shopenn’s choice provided a background for Elisabeth Rosenthal’s piece in Sunday’s New York Times highlighting the wildly anticompetitive behavior of American implant manufacturers, their expensive lobbying efforts, and compliant hospital policies that combine to leave more and more Americans stuck at similar crossroads.  Mr. Shopenn chose to take his business to Belgium, where the cost of his hip replacement, including a five-day hospital stay, doctors’ fees, operating room charges, crutches, medicine, a week in rehab, and a round-trip flight, totaled $13,660.  A similar hip implant procedure at home would have cost somewhere in the ball park of $78,000.

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 Posted on July 19, 2013 in Uncategorized

By: Timothy S. Tomasik

Judge Alvin K. Hellerstein issued a critical benchmark ruling yesterday that brought the protracted litigation arising from the 9/11 terrorist attacks one step closer to full resolution.  Judge Hellerstein presided over the first portion of a bifurcated trial to determine whether Silverstein World Trade Center Properties (WTCP) was entitled to demand $3.5 billion from United Airlines and American Airlines for its claim that the Airlines were negligent in allowing terrorists to board planes with weapons and gain access to cockpits.  Judge Hellerstein found that WTCP could not move forward with its claim.

Approximately 55 days before the tragic attacks, after conducting a worldwide competitive auction involving bids from the most sophisticated commercial real estate developers in the world, the port authority leased the World Trade Center Complex to WTCP through a transaction wherein it was agreed that the present value of the lease hold was $3.2 billion.  Following the attacks, WTCP claimed that the replacement value of the properties was $12.3 billion.  In other litigation, WTCP obtained a settlement in excess of $4 billion for ground damage from its own property insurers.

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 Posted on July 12, 2013 in Uncategorized

By: Daniel M. Kotin

In the same week that the United States Supreme Court made big headlines by issuing opinions on high profile cases involving same sex marriage, affirmative action, and voting rights, the court quietly reached a 5-4 decision substantially limiting the rights of citizens who are injured by generic drugs.

In 2004, Karen Bartlett was prescribed Clinoril, a brand name non-steroidal anti-inflammatory (NSAID) for shoulder pain.  Her pharmacist dispensed a generic form of the drug, Sulindac, manufactured by Mutual Pharmaceutical.  Bartlett soon developed an acute case of toxic epidermal necrolysis resulting in catastrophic injuries.  A federal court jury in New Hampshire applying New Hampshire strict liability law found in favor of Bartlett on her design defect claim and awarded her over $21 million.  The First District Court of Appeals affirmed the verdict.  Nevertheless, on June 24, 2013, Justice Samuel Alito, writing on behalf of a 5-4 majority, concluded that since the Federal Food, Drug, and Cosmetic Act (FDCA) requires that generic drug manufacturers must make exact copies of brand name drugs, the manufacturer of the generic version of Clinoril could not be held responsible for claims that the drug was unsafe.  Mutual Pharmaceutical Company, Inc. v. Bartlett,2013 WL 3155230.  Accordingly, the plaintiff’s verdict was overturned based upon federal preemption.

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 Posted on June 19, 2013 in Uncategorized

By: Timothy S. Tomasik

“But there is one way in this country in which all men are created equal – there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president.  That institution gentlemen, is a court.”  - Harper Lee, To Kill a Mockingbird.

There has been a raging debate in this country over the last thirty years over “Tort Reform.”  Another battle has been won – however briefly – by tort victims.  Earlier this month, the Oklahoma Supreme Court struck down what was one of this nation’s most sweeping pieces of Tort Reform legislation.  In Douglas v. Cox Retirement Properties, Inc., the Honorable Rebecca Brett Nightingale’s decision struck down the state’s 2009 Comprehensive Lawsuit Reform Act – which limited non-economic damage awards to victims to $350,000 regardless of the facts and circumstances – for violating Oklahoma’s “single-subject rule.”  Judge Nightingale wrote that the legislation violated the single-subject rule by “logrolling” multiple issues into one piece of legislation, thereby creating a situation where lawmakers are forced to assent to an unfavorable provision to secure passage of a favorable one, or vice-versa.  In dissecting the Oklahoma law, Judge Nightingale explained that the legislation contained 90 sections without a common, closely akin theme or purpose – a clear violation of State prohibitions on logrolling.

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