Medical Malpractice Law Update

Following are summaries of recent noteworthy cases in medical malpractice litigation. This page will be updated from time to time as noteworthy cases are reported.

March 2010

Evidence of financial motive permitted to support claim that doctor deviated from applicable standards of care. Martinz v Elias, et. al. ___ Ill. App. 3d ___, 922 N.E.2d 457, 337 I.D. 334 (1st Dist. 2010)

Plaintiff suffered a work related back injury. The defendant physician recommended a discogram, which involved injecting dye into the disc space in an effort to reproduce the pain and determine which disc was the cause of the pain. Evidence suggested that the test has a significant subjective component and that it may be better to have such a test done by a doctor other than the one planning to perform surgery to minimize a subjective false impression regarding the need for surgery. Based on the discogram, the defendant physician concluded there were disc tears at multiple levels. He then recommended an endoscopic diskectomy at several levels.

The endoscopic diskectomy was performed by the defendant. This procedure involves the use of a tiny camera and instruments intended to avoid an open surgical procedure for removal portions of the disc. Following the procedure the patient complained of a new problem: pain radiating into his leg.

The medical malpractice claimed was that the defendant doctor was negligent by performing and relying upon the discogram and the performing the endoscopic diskectomy that resulted in the injury. Plaintiff did not necessarily claim that the endoscopic diskectomy was done negligently per-se.

At trial plaintiff sought to introduce evidence and argue that the defendant performed a procedure that was not indicated for financial motives. Plaintiff contended that the same physician should not have performed both the discogram the subsequent surgery, since the discogram could result in a false positive and should more properly be performed by another doctors to assure a more objective interpretation. Defendant’s motion in limine to bar this argument was denied. The jury returned a verdict for the plaintiff

The jury verdict was affirmed by the First District Appellate Court. Evidence of the financial motive was relevant since there was evidence that the discogram had a significant false positive rate and that it should more properly be performed by a second physician.

Evidence of financial motive for performing a medical procedure can damage a defendant physician’s credibility. Generally such evidence should not be admitted. This case is the exception, since the plaintiff’ theory of liability was premised upon performing a medical procedure that was not indicated, rather than performing an indicated procedure negligently.

September 2009

Pediatrician not permitted to offer standard of care opinions regarding an Advanced Practice Nurse even though the nurse was providing care independently from a physician. Smith v Pavlovich, Churling and Dillard, 394 Ill. App. 3d 458, 914 N.E.2d 1258, 333 I.D. 446 (5th Dist. 2009).

Under the Nursing and Advanced Practice Nursing Act, 225 ILCS 65/15-5 et seq, a nurse is permitted to work independently of a physician seeing patients, ordering tests and writing prescriptions. The nurse must, however, provide the care under a ‘collaborative agreement’ with a physician. The issue presented to the Fifth District was whether a pediatrician could offer standard of care opinions regarding the pediatric care provided by the advanced practice nurse including the alleged failure to provide immunizations.

Crystal Smith came to the Carbondale Clinic and was seen by nurse Dillard, an Advance Practice Nurse six times for the treatment of specific illnesses. Although Crystal had received her required immunizations, she had not received a particular vaccine called Prevnar, which is intended to prevent bacterial meningitis. It was claimed that nurse Dillard wad negligent in not recommending and administering this vaccine.

Plaintiff offered a pediatrician to establish the applicable standard of care. No nurse expert was offered. Defendant Dillard presented a motion in limine to bar the pediatrician from testifying, which the trial granted. Dillard then moved for a directed verdict at the close of the plaintiff’s case, since the only nursing testimony came from Dillard who stated she had met the applicable standards of care. The trial court directed a verdict for the defendant.

The Supreme Court held in Sullivan v Edward Hospital, 209 Ill. 2d 100 (2004), that a defendant in a medical malpractice must be judged by an expert licensed in the same school of medicine. It held that a doctor could not establish the standard of care for a nurse. In Smith the Fifth District followed this precedent, even though an Advanced Practice Nurse could exercise independent care without a doctor’s specific supervision, similar to what a physician would be doing under the same circumstances. The requirement that the expert be licensed in the same school trumped the nature of the care provided.

This care reinforces the existing case law clearly establishing that an expert must be licensed in the same school of medicine in order to offer opinion testimony against another health care provider.

June 2009

Hospital held liable for treatment provided by physician in the emergency room despite consent form signed by patient acknowledging that physician was an independent contractor.Spiegelman v Victory Memorial Hospital, et. al., ___ Ill. App. 3d ___, ___ N.E.2d ___, ___ I.D. ___ (1st Dist. 2009).

We commented below upon the First District case of Wallace v. Alexian Brothers Medical Center, __ Ill. App. 3d ___, ___ N.E.2d ___, ___ I.D. ___ (1st Dist. 2009), decided only two months before Spiegelman. In Wallace, the Court upheld summary judgment for a hospital, finding that the hospital was not liable for the conduct of the emergency room physician where the patient’s mother signed a consent form acknowledging that the physicians were independent contractors. In Spiegelman, the same court reached an opposite result only two months later.

Judith Spiegelman came to the Victory Memorial Hospital with various complaints, including a headache and nausea. She signed a consent form which contained a provision that provided in part:

I understand that the Emergency Department physician and my attending physician are independent contractors and not agents or employees of VICTORY MEMORIAL HOSPITAL. . . . . I have read the above and certify that I fully understand its contents . . .

During her visit to the emergency room her condition grew worse. The emergency room doctor, Dr. Murray Keene, thought she was having a stroke. A decision was made to admit her. The following day a spinal tap was performed that revealed spinal meningitis. Treatment was initiated, but by that time the plaintiff had already suffered permanent neurological damage which left her wheel chair bound.

Suit was brought against the various health care providers, including the emergency room doctor, Dr. Keene, and Victory Memorial Hospital, based upon an apparent agency theory. The case was tried and the jury returned a verdict for $11 million. Following a set off for the settlement with one defendant and a remittitur for a duplicate element of damages on the verdict form, judgment was entered for $8 million. The emergency room doctor settled leaving only the hospital, which appealed.

The Appellate Court held that the signed consent form was not dispositive and one must look to the totality of the circumstances. Plaintiff contended that the consent form was confusing because it was a multipart form and the independent contractor clause was buried in the fine print, the signature line was just below a separate section regarding personal valuables, and the top of the form did not contain her name. Further, the consent form referred to hospital employees attending to the patient’s needs, so that the jury could have inferred that the plaintiff was confused as to which doctors were employees and which were independent contractors.

The Appellate Court commented upon its decision two months before in Wallace v Alexian Brothers Medical Center. It sought to distinguish that case based upon the plaintiff in Wallace not making as big an issue about the ambiguity of the document but rather disputing whether it was in fact her signature on the document.

Confused? These are two strikingly similar cases with opposite conclusions. Efforts to distinguish the cases are strained at best. Whether the Supreme Court will address the issue remains to be seen.

Perhaps hospitals should consider a short, separate, consent form which addresses only the issue of non liability for care provided by independent contractors. By placing this issue in separate form it would be harder for a patient to claim confusion.

April 2009

Hospital not liable for treatment provided by physician in the emergency room based on consent form signed by patient’s mother which stated that the physicians were not employees of the hospital.Wallace v. Alexian Brothers Medical Center, __Ill. App. 3d ___, 907 N.E.2d 490, 329 I.D. 899 (1st Dist. 2009).

In the seminal case of Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511 (1993), the Illinois Supreme Court set forth the factual basis for imposing liability upon a hospital for the apparent agency of physicians who provide services, but are technically independent contractors. The analysis was further expanded in the case of York v. Rush Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147 (2006) to make ancillary medical staff, with whom the patient had no direct contact, the apparent agents of the hospital under most circumstances. These two cases provide plaintiffs with powerful arguments for imposing liability upon hospitals even though the physicians are not employed by the hospital.

Emergency rooms routinely require patients to sign a consent with various disclaimers, one of which typically states that the physicians who provide care are not employees, will bill separately for their services, and are independent contractors. Whether these provisions are effective in avoiding apparent agency liability has been subject to debate, since these are form agreements given to a patient in need of medical care along with a host of other documents. This is precisely the issue addressed by the court in Wallace v. Alexian Brothers Medical Center.

Plaintiff’s fourteen-year-old daughter was struck by a car and taken to the defendant hospital. Her mother was asked to sign a consent form after she arrived to check on her daughter, who was already undergoing treatment. The consent form contained a provision that provided in part:

I understand that physicians who provide professional services to me such as my attending physician and consulting physicians, are not the employees or agents of the Alexian Brothers Medical Center, but they are independent contractors who will be providing their specialized services on my behalf and as such will be my employees or agents. Alexian Brothers Medical Center is not responsible for the services these physicians provide. These physicians and their employees will be billed separately.

Plaintiff’s daughter died. A medical malpractice claim was filed against the doctors and the hospital. It was claimed that the hospital was vicariously liable. The hospital sought a summary judgment based on the foregoing provision in the consent form.

The trial court granted summary judgment in favor of the hospital even in light of the following:

(1) The hospital had already begun medical care before plaintiff signed the form; (2) Plaintiff claimed no one explained the forms to her at the time.

By signing the form, plaintiff effectively acknowledged being aware that the doctors were not agents of the hospital, and thus, she could not establish the “holding out” portion of the apparent agency rule.

This is a significant case where hospitals are sued on an apparent agency theory. Where a consent form is signed informing the patient that the doctors are not hospital employees, it will provide a good basis for avoiding apparent agency.

April 2009

In wrongful birth case, recoverable damages extended to include child care costs after child reaches the age of majority.Clark v. Children’s Memorial Hospital, ___ Ill. App. 3d ___, 907 N.E.2d730, 329 I.D. 730 (1st Dist. 2009).

This is an issue that rarely occurs, but is potentially significant. In the landmark case of Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230 (1987), the Illinois Supreme Court held that a parent could recover the extraordinary costs of child rearing during the child’s minority, where the parents would have had the option of aborting the child had they known of the birth defect. The Court carefully limited the damages. It did not recognize a cause of action for “wrongful life,” which would allow the child to recover damages for achieving life with an injury per se. Instead, it only permitted damages for “wrongful birth,” which would limit the recovery to those damages related to the extraordinary costs associated with the birth defect.

In the Clark case, the parents sought to recover their ongoing costs of extraordinary care after the child reached his majority. The Court concluded that the parents could still be legally liable for their child’s care costs after he attained his majority, and thus it was appropriate to extend the holding in Siemieniec to include those costs.

January 2009

Plaintiff expert not permitted to offer opinion testimony where he failed to demonstrate sufficient familiarity with the procedure in issue.McWilliams v. Dettore, et al, 387 Ill. App. 3d 833, 901 N.E.2d 1023, 327 Ill. Dec. 290 (1st Dist. 2009).

The First District Appellate Court recently decided McWilliams v. Dettore, et al., 387 Ill. App. 3d 833, 901 N.E.2d 1023, 327 Ill. Dec. 290 (1st Dist. 2009). This is a noteworthy opinion specifically addressing the qualifications of an expert to comment upon the care provided by the defendant.

An understanding of the medical facts is necessary. Ms. McWilliams underwent a mammogram in 1998 which revealed a six centimeter mass. The radiologist recommended a biopsy. Her family physician, Dr. Dettore, referred her to a surgeon, Dr. Joyce. Dr. Joyce obtained a CT scan which revealed swollen lymph nodes. Dr. Joyce elected not to perform a biopsy.

Two years later the patient was diagnosed with stage IV non-Hodgkin’s lymphoma. She underwent chemotherapy. The lymphoma went into remission. Unfortunately, a couple of years later she was diagnosed with ovarian cancer.

The plaintiff’s contention was that if Dr. Joyce had performed a biopsy, the stage I non-Hodgkin’s lymphoma would have been diagnosed and could have been treated with radiation instead of chemotherapy. Because of the delay in diagnosis, chemotherapy was required. Plaintiff further claimed that the chemotherapy lowered the patient’s immune system, predisposing her to ovarian cancer.

The plaintiff identified a single expert, Dr. Hector Gomez, a hematologist/oncologist.

The defendant surgeon, Dr. Joyce, filed a motion in limine on the eve of trial seeking to bar the opinion testimony of Dr. Gomez regarding the failure to perform a biopsy since that was a surgical decision and Dr. Gomez was not a surgeon. After hearing testimony from the expert regarding his credentials, the trial court granted the motion.

The issue on appeal was whether or not Dr. Gomez, a hematologist/oncologist, could offer opinion testimony regarding the standard of care required of a surgeon.

The Appellate Court noted that there are two prongs necessary to answer the question. First is foundation. In order to establish the foundation, the expert must be licensed in the same school. Sullivan v. Edward Hospital, 209 Ill. 2d 100, 806 N.E.2d 645 (2004). A doctor cannot offer testimony regarding a nurse’s standard of care because they are licensed in different schools. However, all medical doctors are licensed within the same school and therefore the foundational requirement for Dr. Gomez to offer opinion testimony against Dr. Joyce was established.

The second part of the analysis is based on the familiarity of the expert with the pertinent standards of care. The court determined that Dr. Gomez failed to meet the familiarity standard.

Dr. Gomez did not perform biopsies himself. The determination of whether to perform a biopsy was ultimately a surgical decision. Accordingly, the Appellate Court held Dr. Gomez could not offer standard of care testimony regarding the surgical standard of care to perform a biopsy.

This is a noteworthy case. Often the trial courts are lenient in permitting medical doctors to offer opinion testimony regarding other medical doctors once they testify that they are generally familiar with the applicable standards. In McWilliams, however, the court held that offering such testimony, in and of itself, was not sufficient. The court actually considered the experience of the expert in the specialty of surgery before permitting such testimony.

In an appropriate case where the plaintiff’s expert does not practice in the same specialty as that of the defendant, an objection on the familiarity aspect of the expert’s qualifications may be warranted.

It should be noted that there is no per se requirement that an expert practice in the same specialty as the defendant. If the medical issue is one with which the expert is experienced, he may properly testify.

December 2008

On call physician owed no duty to an emergency room patient where the physician had no direct contact with the patient, even though he reviewed an EKG report after the patient was discharged.Gillespie v. University of Chicago, et al, 387 Ill. App. 3d 540, 900 N.E.2d 737, 326 Ill. Dec. 840 (1st Dist. 2008).

The First District Appellate Court recently decided Gillespie v. University of Chicago Hospitals, et al. This is a noteworthy opinion specifically addressing the issue of duty and the physician-patient relationship.

Kenyudra Gillespie, age nineteen, presented to an emergency room complaining of shortness of breath and chest pain. She was seen by two emergency room physicians who ordered an EKG, blood tests, and a lung scan. The lung scan suggested cardiomegaly. The ER physician considered the EKG abnormal but did not believe the results indicated the presence of a heart attack. The patient was discharged.

The patient had no primary care physician. It was the practice at this hospital to list the internist on call as the patient’s physician and direct that the patient follow up with him. Dr. Vashi was listed on the discharge instructions as the internist on call. Dr. Vashi also had occasion to review the EKG, prepare a report, place a copy in the patient’s chart, and bill for his services a couple of days after the patient left the emergency room. Dr. Vashi’s report noted he was unable to rule out a possible heart attack and that the patient would need to be examined. No action was taken based upon this report.

Two months later the plaintiff developed congestive heart failure and pneumonia and then died.

The claims against the emergency room physicians were resolved. The case proceeded to trial solely against Dr. Vashi. At the close of the plaintiff’s case Dr. Vashi filed a motion for directed verdict claiming that there was no evidence to establish a physician-patient relationship and therefore no duty was owed. The trial court agreed and directed a verdict.

The First District Appellate Court discussed several decisions, some of which found the existence of a duty and some of which did not. In this case it noted that factors favoring the existence of a physician-patient relationship include: (1) Dr. Vashi was the on call physician; (2) Dr. Vashi was listed as the attending physician on the patient’s emergency room record; (3) Dr. Vashi reviewed test results and interpreted the EKG following her discharge; (4) Dr. Vashi wrote a report regarding his interpretation of the EKG; and (5) Dr. Vashi billed for that service.

Factors mitigating against a physician-patient relationship include (1) The emergency room doctors who treated the patient did not contact Dr. Vashi while the patient was in the emergency room to elicit a medical opinion; (2) Dr. Vashi reviewed test results and examined the EKG only after the patient had been discharged from the hospital; and (3) Dr. Vashi’s EKG report was neither used to assess nor treat the patient’s condition by the emergency room physicians.

When balancing the factors, the court concluded that no physician-patient relationship existed. The significant point was the lack of direct involvement by Dr. Vashi in the patient’s care while she was in the emergency room. What involvement he had occurred following the patient’s discharge from the emergency room. Under the circumstances the Court found that no duty existed and that the trial court properly directed a verdict for the defendant.

This is an important decision. The issue of duty in conjunction with a physician-patient relationship comes up frequently in medical malpractice litigation.

June, 2008

Full amount charged for medical services is admissible despite acceptance of lesser sum by healthcare provider.Wills v. Foster, 229 III. 2d 393, 892 N.E.2d 1018, 323 Ill. Dec. 26 (2008).

The Illinois Supreme Court has decided a case of significance addressing the admissibility of medical bills. Wills v. Foster will have a significant impact on those cases where there are substantial medical bills and the provider has accepted Medicare payments in satisfaction of the charges.

In this current day and age of managed healthcare, rarely is the full amount of a medical bill paid. Medicare and Medicaid pay only a small percentage of the amount charged for which the provider is obligated to waive any claim for the unpaid balance. Health insurers usually have agreements with their providers which reduce the amount they will accept in full satisfaction. Defendants have argued that the collateral source rule should not permit the plaintiff to claim the full amount of the bill in such circumstances, since the plaintiff is only obligated for payment of a lesser sum.

In Arthur v. Catour, 216 Ill. 2d 72 (2005) the Illinois Supreme Court held that the plaintiff was entitled to submit the full amount of the charged medical bills without reduction for amounts actually paid by her private insurer. It was argued that the defendant should not benefit from the fact that the plaintiff had procured private insurance.

In cases where the bill is paid by Medicare or Medicaid, however, the situation is different. Those payments are not the result of any effort by the plaintiff, but rather a tax funded government program. Accordingly, it has been argued that the collateral source rule should not apply and that the plaintiff should be permitted to recover only the amount accepted by the healthcare provider.

This was the specific issue addressed by the Illinois Supreme Court in Wills. The Court’s analysis is lengthy and its conclusion is clear. Illinois follows the reasonable value approach. The plaintiff is entitled to introduce the full amount of the medical bill, regardless of whether or not the healthcare provider has accepted a lesser sum. Further, the defendant is expressly prohibited from introducing evidence that the healthcare provider has accepted payment of a lesser sum. The plaintiff must, however, establish the appropriate foundation for introduction of the bill. The foundational requirements include the necessity of the services rendered and the reasonableness of the charges.

Although not clearly stated, the implication of the Court’s analysis is that the submission of the bill by the healthcare provider is prima facie evidence of its reasonableness. The healthcare provider can simply be asked whether or not the charges were “reasonable” and, if the answer is in the affirmative, the bill will be admitted.

The defendant, however, may cross examine on the issue of reasonableness. This is a point of little benefit. Since the defendant may not introduce evidence that the bill has been satisfied by payment of a lesser sum, it would seem that there is little that can be accomplished on cross examination.

One could argue that the Supreme Court failed to recognize the realities of contemporary medical care. Most healthcare providers bill far more than they expect to receive knowing that the bills will be reduced. The expectation is that the low payments by Medicare and Medicaid will be offset by higher payments from private payors and insurers. Accordingly the amount billed is not the “reasonable” charge but an inflated figure calculated to give the healthcare provider a negotiating tool as it endeavors to collect a lesser sum. Wills provides a windfall to the plaintiff.