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Firm Notes
Anderson & Kolodziej Affirmed on Appeal
On June 29, 2010, the First District Appellate Court affirmed an order of summary judgment entered on behalf of defendants in a medical negligence case. Amy L. Anderson represented a family practice physician whom plaintiff alleged failed to refer her to the proper obstetrician in her 38th week of pregnancy. Plaintiff was seen by the referred obstetrician four days later, and evaluated by fetal monitoring which determined the plaintiff was not in labor. Approximately 36 hours later, the plaintiff suffered severe abdominal pain, was rushed to the hospital where she had an emergency cesarean section and found that her uterus had ruptured. The baby died 10 days later. While plaintiff's expert testified that the defendants deviated from the standard of care, and testified that the outcome would have been different if the defendants had complied with the standard of care, cross examination revealed that the expert did not have any factual support for his opinion. Defendants were granted summary judgment as plaintiff failed to establish that the alleged deviations from the standard of care proximately caused the plaintiff's injuries.
Mary Kay Scott Speaks to Illinois Physicians
Mary Kay Scott has been a speaker in a series of Risk Management Seminars to Illinois physicians this year. The focus has included documentation, hand off of patients, supervision of advanced practice nurses, and the litigation process.
Shelly Brenner and Teresa Maher Obtain Not Guilty Verdict In Medical Negligence Case
On September 20-24, 2010, Shelly Brenner and Teresa Maher tried a medical negligence case alleging that LASIK surgery was contraindicated to a not guilty verdict for the defendant physician. After the surgery, the plaintiff developed bulging and thinning of the left cornea, requiring the use of gas permeable contact lenses. The plaintiff claimed a pre-existing condition of keratoconus, which is a contraindication to LASIK surgery. The defense denied that assertion and pointed to all pre-operative testing that was normal, and further alleged the condition the plaintiff had was a recognized complication of LASIK known as LASIK-induced corneal ectasia. The condition was included in the informed consent the plaintiff signed. The defendant physician had offered to pay for and travel with the plaintiff to California for a new treatment for the condition, but plaintiff refused.
Shelly Brenner and Amy Anderson Obtain Not Guilty Verdict in Medical Negligence Case
Shelly Brenner and Amy Anderson tried a medical negligence case June 21-30, 2010, involving the death of a newborn baby one hour after delivery. The mother presented for delivery of her fourth child, and the labor progressed normally until the fetus went into distress late at night and the defendant ob/gyn was called for a C-section, which was performed within 27 minutes. The child had improving APGAR scores, but failed resuscitation and died one hour after delivery. The estate claimed failure to properly assess fetal distress and failure to timely perform a C-section, which should have been called 15 minutes earlier. The defense argued the timing was appropriate and the newborn was delivered within the ACOG "decision-to-incision" time frame guideline. The verdict was a not guilty on behalf of the defendant physician.
Shelly Brenner and Teresa Maher Obtain Not Guilty Verdict
On May 24-June 2, 2010, Shelly Brenner and Teresa Maher tried to a not guilty verdict a case involving LASIK surgery. The plaintiff underwent bilateral LASIK surgery in 1999, without any noticeable complications. However, subsequent to that the patient developed bowing and steepening of the corneas. The allegations were that the surgeon negligently cut LASIK flaps that were at least twice as thick as intended. The plaintiff sustained significantly decreased visual acuity in both eyes, difficulty in wearing contact lenses due to irregular corneas and the wearing of glasses which do not correct his vision completely. The defense denied the allegations as to the flaps. A special interrogatory to the jury was answered No, questioning whether the physician was guilty of professional negligence that proximately caused the alleged injuries.
Mary Kay Scott Gives Presentation
Mary Kay Scott appeared in March 2009, before a group of physicians and spoke on the topic of Improving Communications to Reduce Your Malpractice Risk.
Amy
Anderson obtains Not Guilty verdict on behalf of attending physician
Tried April 11-23, 2008
On September 26, 2002, plaintiff (a 62 year
old female) was seen by her primary care doctor for complaint of nausea,
vomiting and flank pain. He diagnosed a kidney infection, prescribed
oral antibiotics and sent her home. At 5:00 AM the next morning, she
was brought by ambulance to the hospital emergency room with nausea,
vomiting, flank pain and fever to 106. She was admitted to the attending
physician, the on call partner of her primary care doctor. When she arrived
at the medical floor, her blood pressure had dropped significantly and
she was transferred to ICU. A stat CT scan was ordered but could not
be performed until she was stable at 8:30 PM. The CT showed a kidney
stone obstruction, a urology expert was called and surgery was done the
following morning. However, the plaintiff developed sepsis and a clotting
condition (DIC) that resulted in the loss of 8 of her fingertips including
her thumbs. She uses cosmetic prosthetics for her fingers, but was unable
to return to work as a hair stylist. Plaintiff asked for $2.4 mill. to
$3.4 mill. for the failure to order the CT scan and urology consult on
arrival to the ER. The defense used the testimony of the ER resident,
2 ER attending physicians and the 2 doctors who evaluated her on the
medical floor to support his argument that CT and urology was not warranted
until her condition changed. The defense further argued that the sepsis
and DIC had started before the plaintiff arrived at the hospital and
her outcome could not be changed.
Mary
Kay Scott Gives Physician Presentation
Mary Kay Scott spoke recently to the Chicago Urological Society regular meeting. The topic was "How to Give a Deposition From a Defense Lawyer's Viewpoint."
Not
Guilty for Defendant Physician on Child’s Loss of Testicle
Mary Kay Scott completed at trial recently before Judge Ward in the Circuit Court of Cook County. The defendant general practitioner began treating a minor as of the age of five months. The child at birth had a non-descended testicle, which by the age of two weeks had descended on its own. Other practitioners saw the child at the age of three months and one year and also found the testicles to be within normal limits. The defendant physician continued to see the child over the next nine years and at each office visit the genital exam was within normal limits. The child was last seen by the defendant on January 16, 2003. Subsequently the child was seen by a physician on October 7, 2003, and diagnosed with an undescended testicle. A surgeon surgically removed the testicle on January 9, 2004. The defense argued the known condition of acquired ascending testicle, which occurs between 8-12 years of age and accounts for this child’s condition. In support of the defense was that the testicles were of the same size and the child had documented scrotal development, which would not occur unless the right testicle was present in the scrotum prior to discovery of the ascended testicle. Plaintiff’s post-trial motion was denied.
Mary
Kay Scott Obtains Not Guilty Verdict for Defendant Radiologist
Mary Kay Scott obtained a recent not guilty verdict in a medical negligence case involving a board certified radiologist and the corporation that employed the defendant physician. Plaintiff 52 year old female with a previous history of left sided breast cancer appeared for her routine mammogram. The mammogram revealed milk of calcium, which was indicated to most likely be benign. The patient was seen by her surgeon, who recommended needle localization and biopsy of the milk of calcium finding. On the date of the needle localization, the patient indicated concern with proceeding, and the co-defendant mammographer involved the client in a curbside consultation both radiologists agreed the finding was likely milk of calcium, a benign finding and recommended four month follow-up with mammogram. After discussion with the surgeon, that course of follow-up was agreed upon by the patient. The patient came back at four months, and the milk of calcium had regressed, a positive finding. The patient was recommended to return in eight months, and failed to appear. Upon coming back in 14 months, the patient was found to have a 1.2 cm. mass with 18 positive lymph nodes, and subsequently after diagnosis and treatment died from metastasis of the disease. Plaintiff asked for $2,000,000. Defendant denied liability and denied proximate causation. The jury deliberated for approximately 2 hours.
Mary Kay Scott Presents HIPAA Speech
Mary Kay Scott recently spoke to a group of physicians and health care providers in regards to the legal issues related to Electronic Health Records, HIPAA issues related to the use of such records and e-mail correspondence issues. The speech also dealt with admissibility of such records and the trend in regards to such record keeping. The speech was held May 8, 2006, at the Hyatt Lodge McDonald's campus in Oak Brook, Illinois.
Food Contamination Cases in Illinois
The number of food-borne pathogens has increased five-fold since 1942. In a September 1999 study by the Centers for Disease Control (CDC), it was reported that there were 76 million reported cases of food-borne illnesses in the United States every year. Additionally, there are a reported 325,000 hospitalizations and 5,000 deaths.
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Amy L. Anderson Obtains Not Guilty Verdict in Wrongful Death Case
In March 2006, Amy L. Anderson obtained a not guilty verdict in a wrongful death medical negligence case in Cook County. Plaintiff's decedent was an 89 year old man who was being followed by the defendant physician for several chronic illnesses at a nursing home in Chicago. When plaintiff's decedent developed diarrhea, the physician held a medication that was being given to assist with bowel movements. After eleven days, the medication was restarted. The patient died 3 days later. Plaintiff alleged that the patient died of bowel obstruction, however, no perforation was found on autopsy. No autopsy was performed of the brain even though the patient had suffered strokes in the past. The jury was out for forty minutes.
Sheldon
Brenner Obtains Not Guilty Verdict for Defendant Physician in Wrongful
Death Case
On December 9th, 2005, a jury in the Circuit Court of Cook County, Illinois, entered a not guilty verdict in favor of the defendant physician, a specialist in Family Practice. The deceased, a morbidly obese 35 year old woman taking birth control pills, was survived by her parents and sister. She was a long-standing patient with a history of asthma. She was seen in the office with complaints of shortness of breath, dizziness and syncope after getting out of the shower. Test results indicated hypothyroidism and Synthroid was prescribed. She returned three weeks later complaining of shortness of breath and wheezing. The defendant felt this was a flare-up of asthma and prescribed Prednisone and told the patient to return in two days. The following day, the patient was found dead in her apartment. Autopsy revealed a massive pulmonary embolism. The estate contended that the defendant failed to recognize signs and symptoms of pulmonary embolism on the two office visits prior to death despite high risks, including obesity, birth control, and recent air travel. The defense asserted the lab results, history and clinical presentation justified the diagnoses. The defendant's insurance company offered $500,000 to settle, which was rejected by the estate.
Sheldon
Brenner Obtains Not Guilty Verdict for Defendant Ophthalmologist
On November 4, 2005, a jury in Cook County, Illinois returned a not guilty verdict in favor of Sheldon Brenner's client, an ophthalmologist. The plaintiff, a retired 76 year old woman, underwent cataract surgery done with local anesthesia and intravenous sedation. The local was given by a peribulbar block. The plaintiff contended the block was in fact never given and that as a result she experienced excruciating pain during the surgery and, that because of the sedation, she was unable to vocalize her distress. She also claimed that the defendant should have converted to general anesthesia during the operation when she began to move and cough. Plaintiff did not claim the surgery was successful, and sought damages for the pain she experienced during the operation and the emotional distress suffered since, including nightmares and sleeplessness. The defense contended the anesthetic block was given, although there was some confusion in the records whether it was done by the anesthesiologist, who had been sued but was dropped before trial, or the defendant. Neither could state with certainty that he did it, but they both agreed it was done. Defendant also contended he exercised reasonable judgment in deciding not to convert to general anesthesia.
Mary Kay Scott Obtains Not Guilty Verdict for Defendant Physician in Case Tried in February/March
Mary Kay Scott recently obtained a not guilty verdict on behalf of a defendant physician in a case tried in February and March, 2006, in the Circuit Court of Cook County, Chicago, IL. The minor male plaintiff, age two and one half, had bilateral inguinal hernia repair surgery performed by the defendant physician and during the procedure his right vas deferens was severed. The defense argued this was a known complication that was recognized and repaired by a consulting urologist during the original hernia repair surgery. The left vas deferens was uninjured. The child had not yet reached puberty, and due to the repair having been performed, and the unaffected left vas deferens, there was no testimony of any ongoing injury or sterility to the child age 13 at time of trial. The demand was $150,000, and no offer was made. No post trial motions were filed.
Brenner and Anderson Obtain Not Guilty Verdict
On October 27, 2005, Shelly Brenner and Amy Anderson were awarded a not guilty verdict in Cook County. The defendant ophthalmologist performed a cataract surgery on the retired female plaintiff. Following the procedure, a small nuclear chip was discovered in plaintiff's eye that the defendant claimed was resolving. As of the last time the defendant saw the plaintiff, the chip had significantly resorbed naturally, the swelling was reducing and defendant argued that surgery to remove the chip was not necessary.
Plaintiff was later diagnosed with pseudophakic bullous keratopathy from the retained lens fragment and the plaintiff required corneal transplant. Plaintiff alleged that the defendant doctor did not perform the cataract surgery within the standard of care and that the removal of the chip earlier would have prevented the need for corneal transplant.
Anderson and Scott Give Presentations to Physicians
Amy Anderson gave a speech and presentation on risk management and charting related issues to Illinois doctors in September. She also gave a seminar and update on Illinois Civil Procedure to the claims staff of a local carrier in August.
Mary Kay Scott gave a speech recently before a group of Illinois physicians regarding medical negligence and risk management. The speech focused on record keeping issues, and communication with patients as it relates to adverse events.
Verdict for less than medical specials when comparative negligence determined
Mary Kay Scott recently tried a case to verdict in the Circuit Court of Cook county, in which the plaintiff was awarded $60,000, reduced to $30,000 by comparative negligence. Plaintiff a commercial real estate broker, fell while being shown a property by the defendant’s representative. Plaintiff and the defendant’s representative had been walking through an unused warehouse where lighting came from windows and a flashlight held by the defendant’s representative. The two disagreed as to whether the plaintiff was aware they were walking down a ramp which ended with a drop-off to rail tracks below, which were an important selling feature. Plaintiff stepped off the end falling to the track bed below fracturing his calcaneus, which healed to the point that within six months he was golfing. Medical bills totaled $52,000, and the jury awarded $8,000 for disability. No award for pain and suffering was made, and the jury reduced the verdict by 50% comparative negligence of the plaintiff. A post-trial motion has been filed by the plaintiff. The last demand was $650,000.
Amy Anderson and Stephen Kolodziej Win Seminal Reporting Act case
Plaintiffs were four minors who were allegedly sexually abused by another minor residing in their apartment complex. Plaintiffs brought suit against the offending minor and his custodial and non-custodial (divorced) parents, alleging negligence and intentional torts. The plaintiffs also sued North Central Behavioral Health Systems, Inc., a psychological counseling center at which the offending minor received counseling. Plaintiffs alleged that North Central knew that the minor had sexually abused other children in the apartment building, and that North Central knew or reasonably should have known that the minor was a sexual predator who was likely to sexually abuse other children in the future. Plaintiffs alleged that North Central had a duty to report the sexual abuse of the other children in the apartment complex to DCFS or other authorities under both the Illinois Abused and Neglected Child Reporting Act and the common law, notwithstanding the fact that North Central was not alleged to have known the specific names or identities of the children who were allegedly abused.
The Circuit Court of LaSalle County granted North Central’s motion to dismiss the complaint for failure to state a cause of action. The Illinois Appellate Court, Third District, affirmed. In a case of first impression, the court held that there is no private right of action under the Reporting Act for victims of abuse or neglect against persons who allegedly fail to comply with the Act’s reporting requirements. The court further held that plaintiffs could not establish a duty to report under either the statute or the common law under the facts presented. The Illinois Supreme Court denied leave to appeal.
The case is Doe v. North Central Behavioral Health Systems, Inc., No. 3-03-0317. Amy Anderson wrote and argued the motions to dismiss in the trial court; Stephen Kolodziej wrote the briefs and argued on appeal.
Mary Kay Scott and Stephen Kolodziej Win Landmark Illinois Supreme Court
Case
In two consolidated cases, City of Chicago v. Beretta, et al. and Young v. Bryco Arms, et al. (itself consisting of three consolidated actions), the City of Chicago and several families of victims of gang-related handgun violence sued various manufacturers, distributors, and retailers of handguns, seeking damages and injunctive relief. Plaintiffs alleged that the defendants created a public nuisance by deliberately designing, and manufacturing guns that would appeal to gang members due to their small size and light weight, and by selling guns to “straw purchasers” whom they knew or should have known would inject those guns into the black market, where they would ultimately end up in the hands of juvenile gang members who would criminally misuse them. The firm represented Breit & Johnson Sporting Goods, one of the handgun retailers alleged to have knowingly made a lawful sale of a handgun to a “straw purchaser.”
All defendants filed motions to dismiss the suits on the grounds that plaintiffs could not state a claim for public nuisance under Illinois law. The trial court denied the defendants motions, but certified the cases for immediate review. The Illinois Appellate Court agreed to hear an immediate appeal, and affirmed the trial court’s ruling. Defendants petitioned the Illinois Supreme Court for leave to appeal, which was granted. In a case of first impression, the Illinois Supreme Court reversed the trial and appellate courts, and held that defendants could not be held liable under the theory of public nuisance. The Court held that as a matter of law, the defendants’ conduct did not proximately cause injury to the defendants or the public, because the defendants have no control over the third parties who criminally misused the guns they manufactured and sold. The Court further held that the tort of public nuisance could not encompass the lawful manufacture and sale of firearms, which are already heavily regulated by Federal and State law. Finally, the Court ruled that the issue of juvenile gang violence, while admittedly a significant societal problem, is an issue that must be addressed by the Illinois legislature, rather than judicial intervention.
Stephen Kolodziej wrote the motions and briefs, and argued the case in the trial court, the Illinois Appellate Court, and the Illinois Supreme Court.
Mary Kay Scott Obtains Directed Verdict
Mary Kay Scott tried a case in Cook County, October 6-9, 2003.
Westside Association for Community Action (WACA) and the owners of the building, Gloria and Ernest Jenkins, obtained a directed verdict at the close of plaintiff's case in a recent Cook County jury trial. The plaintiff, Berdina Stubbs, was an employee of Aunt Martha's a youth services organization, when she allegedly fell down stairs at the building at 3600 W. Ogden St. in Chicago, on September 8, 1998. The fall was unwitnessed, and no complaints were made to the defendants.
Plaintiff claimed the condition of the carpet on the stairs was unreasonably dangerous, and that condition led to her fall. No witness called by the plaintiff had ever given notice to the defendants as to the condition. Undated photos of the stairs taken several years after the occurrence showed duct tape on the stairs. The defendants and a witness denied that was the condition on the date of the accident.
Plaintiff claimed her first medical treatment 2.5 months after the occurrence, for Achilles tendonitis, and subsequently saw numerous physicians, none of whom causally connected the plaintiff's myriad complaints, including degenerative joint disease of the spine diagnosed over 2 years later, to this accident. Plaintiff was barred from submitting lost wage claims and items of medical damages due to failure to disclose these bills during discovery.
The court directed the verdict after 3 days of trial, based upon lack of notice of the condition. Plaintiff's post-trial motion was denied on December 1, 2003.
Amy Anderson Obtains Not Guilty Verdict
Amy Anderson tried a case in Cook County, September 10-12, 2003.
In Earl Campbell v. John Cernuska and Enterprise Leasing Company of Chicago, plaintiff was crossing Lake Street in Chicago from North to South on December 23, 1999 at approximately 5:30 PM. Defendant, Cernuska, was driving a customer to an Enterprise location near Oak Park, when he struck the plaintiff resulting in a surgical fracture to his left lower leg. Plaintiff had a blood alcohol serum level of .391 upon arrival at Mt. Sinai Hospital. Plaintiff's pharmacology expert, Dr. O'Donnell, testified that the plaintiff was an alcoholic and therefore the level of alcohol did not significantly impair him to contribute to the accident. Defendants' toxicology expert, Dr. Leikin, testified that while the plaintiff had likely developed a tolerance to the alcohol, the level in the plaintiff at the time of the accident would have caused an impairment that contributed to the accident. The defendant and his passenger testified that the plaintiff was crossing the street mid-block (27 paces from the closest cross-walk) wearing dark clothing on a snowy night. Plaintiff testified that he was crossing in the cross-walk.
After 2.5 hours of deliberation, the jury found in favor of the defendants.
Randy Monroe Obtains Not Guilty in Nationally Reported Trial
Randy Monroe tried a wrongful death case in Kane County, February 10-21, 2003.
The plaintiff’s decedent, a 38 year old black male, was electrocuted while breaking into George O’s Place, a bar owned by the co-defendant. Mr. Monroe represented Alarm One, who installed the security system in the bar, and allegedly knew of and helped install an electrical booby trap to deter burglars, which caused the death of the plaintiff’s decedent. The plaintiff’s decedent left surviving a mother and younger brother. The plaintiff requested $800,000, and a verdict of $150,000 was returned against the co-defendant bar owners, reduced by 50 percent based upon the comparative negligence of the plaintiff’s decedent. The case was the subject of a Dateline episode, and the verdict was reported on the front page of the Chicago Sun-Times.
Alarm One was found not guilty on all counts.
Sheldon Brenner Appointed to Special Panel
January 14, 2003 - Sheldon Brenner has been appointed to serve on a special panel comprised of prominent trial attorneys and judges within the Circuit Court of Cook County. This panel is assigned the task of creating a mediation/pretrial system for significant cases involving medical malpractice liability. The pilot program to be recommended by Mr. Brenner and his fellow panelists will present litigants with an opportunity to resolve cases during the discovery process saving substantial costs for insurance companies and self-insureds in the defense of medical malpractice claims.
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