Mark A. Schneider

the Lost Chance Doctrine in Medical Negligence Cases The lost chance doctrine is a legal theory that allows plaintiffs to recover damages in cases where a healthcare provider's negligence has decreased their chances of a better outcome, even if the negligence did not directly cause the harm. This doctrine has been recognized in various states, including Illinois, and has become an important tool for plaintiffs seeking compensation for medical malpractice. In Illinois, the lost chance doctrine was first recognized in the landmark case of Holton v. Memorial Hospital, where the Illinois Supreme Court held that a plaintiff could recover damages for the loss of a chance of a better outcome, even if the negligence did not directly cause the harm. In that case, the plaintiff alleged that the defendant hospital's delay in diagnosing her spinal cord compression caused by osteomyelitis (infection of the bone) had decreased her chances of not suffering paralysis. The court held that the plaintiff could recover damages for the lost chance of a better outcome. Since the Holton case, the lost chance doctrine has been applied in numerous cases in Illinois. In order to recover damages under the lost chance doctrine, a plaintiff must prove that the healthcare provider's negligence decreased their chances of a better outcome, and that the decreased chances were a substantial factor in causing harm. This can be a complex legal issue, as it requires a careful analysis of the evidence and expert testimony. One of the key benefits of the lost chance doctrine is that it allows plaintiffs to recover damages even in cases where the harm is uncertain or difficult to prove. For example, in cases of delayed diagnosis or misdiagnosis, it can be challenging to prove that the negligence directly caused the harm. The lost chance doctrine is not a separate cause of action but can be used as a powerful tool in medical negligence cases where it is applicable. Overall, the lost chance doctrine is an important legal concept for plaintiffs seeking compensation for medical malpractice in Illinois. It allows plaintiffs to recover damages for the loss of a chance of a better outcome. However, it is important for plaintiffs to consult with an experienced medical malpractice attorney to determine whether the lost chance doctrine applies to their case and to navigate the complex legal issues involved.

medical Negligence Types of Damages By Hon. James M. McGing (ret.) Medical malpractice occurs when a healthcare professional fails to provide the appropriate standard of care, resulting in harm or injury to a patient. In Illinois, like in other states, victims of medical malpractice have the right to seek compensation for the damages they have suffered. These damages can be categorized into several types, each with its own considerations and legal principles. 1. Economic Damages: Economic damages refer to the financial losses incurred by the victim as a result of the medical malpractice. These damages are quantifiable and can be easily calculated. They include: - Medical expenses: This includes all the costs related to the victim's medical treatment, such as hospital bills, surgeries, medications, rehabilitation, and therapy. - Lost wages: If the victim is unable to work due to the injuries caused by medical malpractice, they may be entitled to compensation for the wages they have lost during their recovery period. - Future earning capacity: In cases where the victim's injuries result in long-term or permanent disability, they may be awarded damages to compensate for the loss of future earning capacity. - Cost of home modifications and assistive devices: If the victim requires modifications to their home or the use of assistive devices, such as wheelchairs or prosthetics, they may be entitled to compensation for these expenses.

nursing Home Liability for Residents’ Abuse or Neglect. Under the Nursing Home Care Act, long-term care facilities can be held liable for the abuse or neglect of persons under their care. “Facility" or "long-term care facility" means a private home, institution, building, residence, or any other place, whether operated for profit or not, or a county home for the infirm and chronically ill or any similar institution operated by a political subdivision of the State of Illinois, which provides, through its ownership or management, personal care, sheltered care or nursing for 3 or more persons, not related to the applicant or owner by blood or marriage. It includes skilled nursing facilities and intermediate care facilities as those terms are defined in the federal Social Security Act. It also includes homes, institutions, or other places operated by or under the authority of the Illinois Department of Veterans' Affairs. What is Abuse and what is Neglect under Illinois Law? “Abuse” means any physical or mental injury or sexual assault inflicted on a resident other than by accidental means in a facility. “Neglect” means a facility's failure to provide, or willful withholding of, adequate medical care, mental health treatment, psychiatric rehabilitation, personal care, or assistance with activities of daily living that is necessary to avoid physical harm, mental anguish, or mental illness of a resident. If you suspect a family member or other person has been abused or neglected, call Former Judge James M. McGing (773) 467-8000 and speak to him today. Former Judge James M. McGing served as a Supervising Judge in the Law Division of the Circuit Court of Cook County and is a partner in the Miller & McGing Law Firm.

workers Continue to Develop Mesothelioma in the U.S. Plain and simple, mesothelioma is a cancer caused by asbestos. According to the Mayo Clinic, Malignant mesothelioma is a type of cancer that occurs in the thin layer of tissue that covers the majority of your internal organs (mesothelium) often becoming trapped in our lungs. Approximately 3,000 people are diagnosed with mesothelioma each year in the United States, It often takes decades for the exposure to turn into mesothelioma. Asbestos consist of naturally occurring minerals made up of heat-resistant fibers. It was used in thousands of consumer products both before and after the dangers of asbestos were known. Asbestos exposure can cause mesothelioma, lung cancer and other cancers. All mesothelioma cases are caused by asbestos. Who can be held liable? Asbestos manufacturers knew asbestos was deadly and many failed to protect workers and their loved ones. Asbestos exposure commonly occurs when working with the deadly mineral, but companies are liable for secondhand exposure as well and can be held liable to victims and their family members who also became exposed to asbestos that was brought home on work clothing, etc. If you or loved one has been diagnosed with Mesothelioma, contact our office today and speak with former Judge James M. McGing at (773) 467-8000.

nURSING HOMES AND ARBITRATION By Hon. James M. McGing (ret’d) This month the United States Supreme Court refused to hear an appeal of the Centers for Medicare & Medicaid Services’ (CMS) rule that prohibits Nursing Homes from requiring residents to sign arbitration agreements as a condition of admission. That leaves in place the rule and Nursing Homes can no longer require a resident or their representative to sign it. However, the Nursing Homes can ask potential residents if they would voluntarily sign it after clearly explaining it and further that it is not mandatory that they agree to sign it. CMS is part of the U.S. Department of Health & Human Services. CMS explains in its rules that “Concerns have been raised about the fairness and transparency related to both the means by which these agreements are created and the fairness of the arbitration process themselves…” and many patients are transferred directly from hospitals in ill-health and are not in a position to engage in meaningful negotiation. Long term health facilities have often required the signing of these arbitration agreements before admittance. The Illinois Appellate Court on September 30th, 2022, in the case of Calusinski v. Alden-Poplar Creek Rehabilitation & Health Care Center, Inc., 2022 IL App (1st) 220508 weighed in on this issue when it affirmed a decision by a Cook County Circuit Court Judge finding that in a Cook County case, the arbitration agreement was not enforceable as a matter of law because it was substantively unconscionable. Ms. Calusinki’s son executed the paperwork under a power of attorney. She eventually died at the facility and a lawsuit was filed alleging Wrongful Death and a Survival Action based upon Negligence. The arbitration agreement required any claims or disputes brought by plaintiff arising out of his mother’s care at the nursing home to be resolved through mediation and/or arbitration. Yet, the agreement permitted the nursing home to litigate claims against plaintiff for nonpayment of nursing home costs in a court of law. The Circuit Court Judge ruled that the parties’ arbitration agreement was substantively unconscionable, and therefore unenforceable, because it waived plaintiff’s right to statutory attorney fees without adequate consideration. The Appellate Court agreed in a unanimous opinion, finding that “an arbitration agreement is substantively unconscionable, where as here, the contract terms are so one-sided that they oppress or unfairly surprise an innocent party and there is an overall imbalance in the obligations and rights imposed by the bargain, as well as significant cost-price disparity. If an arbitration agreement is unconscionable, it is unenforceable.” If you or a loved one has been abused or neglected at a Nursing Home, call Miller McGing Law today at (773) 467-8000 and speak with former Supervising Judge James M. McGing.

eR Supervisory Physician Could Owe a Duty to a Patient Never Personally Examined In a recent Illinois Appellate Court decision, a dismissal of a doctor from a medical negligence lawsuit was reversed as the issue is a factual one to be determined by a jury and there exists a genuine issue of material facts in the case. A patient was taken to a hospital emergency room complaining of a sore throat and difficulty breathing. A nurse practitioner (NP) examined the patient and diagnosed her. The NP prescribed Clindamycin for the symptoms and recommended the patient be discharged from the emergency room with instructions to follow up with her primary care physician. The NP documented this information in the medical chart. The Supervising Emergency Room Physician (SERP), who worked for a separate physician’s group that contracted with the hospital, reviewed the medical chart, including history of present illness, review of systems, physical examination, lab orders, and results. Based on the chart, the SERP opined that the medical care was “reasonably appropriate,” no further medical tests or imaging studies were required, and the discharge plan was appropriate. The SERP included an addendum to the medical chart stating, “I was the supervising physician for this patient and agree w/ plan.” The hospital discharged the patient at 2:45 a.m. At 4 a.m., the patient called 911 but she could not speak. The dispatcher sent the paramedics to her home. The paramedics found her unresponsively lying in her driveway and administered oxygen. An ambulance took her to a hospital where emergency measures restarted her heart, but she died on December 13, 2016 After a lawsuit was filed, the trial court by way of summary judgment, dismissed the Supervising Emergency Room Physician and the physician’s group, concluding, the SERP never had a physician-patient relationship which is a requirement for medical negligence liability. The trial court determined that there was no genuine issue of material fact as to that matter. The Appellate Court in a unanimous decision, reversed the decision. The Court determined that the SERP was employed by an independent physician’s group, retained by the hospital to staff the hospital’s emergency room with physicians, mid-level nurse practitioners, and physician assistants. Generally, the mid-level practitioners and physicians see patients independently. However, the physician’s group assigns physicians to work with mid-level practitioners. According to the SERP, the physician’s role is to respond to the mid-level practitioner’s request for assistance: “I’m there to provide any help if she needs it—he or she, whoever the mid-level would be. If they want me to come see the patient, examine the patient, talk to the patient, and help them make a disposition on the patient, I’m there to do that.” Due to billing purposes, a patient cannot be discharged unless the supervising physician approves it. The Appellate Court concluded that “the extent of the Supervising Emergency Room Physician’s responsibility and involvement in reviewing of the patient’s medical chart and approving her care and treatment demonstrates that, the SERP’s medical evaluation impacted the patient’s diagnosis and treatment. Therefore, we find that a genuine issue of material fact exists as to whether the Supervising Emergency Room Physician owed a duty of care to the [patient] and the circuit court erred by granting the motion for summary judgment in favor of the physician. By Hon. James M. McGing (ret.), Miller McGing Law (773) 467-8000. Call Today.

birth Injuries/Defects and Medical Negligence By Hon. James M. McGing (ret.) According to the National Institute of Health (NIH), the National Vital Statistics Report defines birth injury as "an impairment of the neonate's body function or structure due to an adverse event that occurred at birth." These injuries include a wide range of minor to major injuries due to various mechanical forces during labor and delivery. Birth injuries are different from birth defects or malformations and are often easily distinguishable from congenital defects by a focused clinical assessment. The risk factors associated with birth trauma can be grouped into those related to the fetus, pregnancy, mother, or iatrogenic factors (use of instrumentation during delivery) according to the NIH. The injuries can include head trauma, hemorrhages, skull fractures, nerve and spinal injuries, just to name a few. These injuries can be the result of medical negligence for a variety of reasons including misuse of medical tools and devices and failure to monitor the mother and baby before, during and after delivery, and can cause permanent injuries to a newborn or a mother. Birth defects on the other hand, occur during pregnancy, especially in the early stages. Although, many are often unavoidable, there are many situations where a birth defect is avoidable. One example is when a medication causes a birth defect, a doctor can be found negligent for prescribing the medication if they knew the risks and a drug manufacturer may also be held liable. Many genetic disorders or defects are treatable during pregnancy (in utero). If a treating physician does not properly diagnose a treatable condition, that failure to diagnose can be considered medical negligence. An Obstetrician (OB) or an OB-GYN, a physician qualified in Obstetrics and Gynecology is the physician in charge of care during pre-conception, pregnancy, childbirth, and immediately after delivery. These doctors review medical information including charts, lab tests, in-office examinations, risk factors and ultrasounds and make decisions accordingly. A birth defect can result if a crucial bit of information is missed by them with catastrophic injuries or even death. According to the NIH, some medications are associated with known birth defects while other defects can be caused by failure to assess, recognize certain risks and take action during situations such as when a baby is too large for the birth canal, a drop in heart rate or an umbilical cord impeding the baby. Doctors must recognize these and other risk factors and take the appropriate steps in accordance with the recognized medical standard of care. When they don’t, they can be held liable. Hon. James M. McGing (ret.) Former Supervising Judge, Law Division Miller McGing Law (773) 467-8000

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