Articles Posted in Medical Malpractice

There are many challenges in successfully pleading and prosecuting wrongful death lawsuits as a result of Covid-19 in Illinois.  The Nursing Home Care Act, 210 ILCS 45/3-602 et seq.,  does not permit a wrongful death action, for the benefit of the decedent’s next of kin to be commenced pursuant to the terms the Nursing Home Care Act (hereinafter “the Act”) 210 ILCS 45/3-603.  The Appellate court held in Pietrzk v. Oak Lawn Pavillion that:  “The Nursing Home Care Act seeks to compensate a resident not an heir of resident.”  329 Ill. App. 3d 1043, 1050 (2002).  Either an  administrator, executor, or special administrator cannot bring an action under the express terms of the Act for the benefit of the next of kin (heirs).

Nursing Homes in Illinois are classified as “skilled nursing and intermediate care facilities pursuant to 45 ILCS 1-113 and 77 Ill. Admin. Code Ch. 1 sec. 300.330.  Nursing homes are subject to the requirements of the Act and regulations promulgated by the Illinois Department of Public Health (hereinafter “IDPH”) pursuant to the terms of the Act.  These regulations can be found at 77 Ill. Admin. Code sec. 300.100 et seq.  Violations of the statutory provisions of the Act and the regulations developed by the IDPH should be plead in a complaint as specific allegations of negligence.  These same violations of the Act and the regulations set forth by IDPH can also be utilized in Ill. Pattern Jury Instruction Civil No. 60.01 which informs the jury that if it decides that the defendant violated the statute or regulations on the occasion in question, then it may consider that fact together with all the other facts in evidence in determining whether the defendant was negligent.

Governor Pritzker issued Executive Order 2020-19 on April 1, 2020, which immunized health care facilities which includes nursing homes from any civil liability for injury or death associated with providing health care services to patients infected with Covid-19 unless it involved gross negligence or wilful misconduct.  On May 13, 2020, Governor Pritzker issued Executive Order 2020-37 which amended Ex. Order 2020-19.  This amendment extended the qualified immunity granted to health care facilities, but only granted the immunity if the health care facility was “…providing health care consistent with the current guidance by IDPH.”  This is a significant amendment because only a nursing home that is providing care to residents consistent with IDPH guidelines are immunized.

In Carter v. SSC Odin Operating, 237 Ill. 2d 30 (2010), the Illinois Supreme Court held that the Federal Arbitration Act, 9 U.S.C. 2, preempted the the anti waiver provisions of the Nursing Home Care Act, 210 ILCS 45/3-606 and 3-607.  This meant that valid arbitration agreements could not be overridden by Illinois State law.

The Illinois Supreme Court clarified their 2010 decision in Carter v. SSC Odin Operating, 2012 IL 113204, 976 N.E. 2d 344 (2012).  In this decision the court held that arbitration agreements contained in contracts for nursing home care signed by a resident do not apply in wrongful death actions.  The Supreme Court stated:

A survival action allows for recovery of damages for injuries sustained by the deceased up to the time of death;

As an Illinois medical malpractice lawyer it is difficult to fathom a scenario where hospital administrators and physicians conspire to unnecessarily intubate patients and while intubated to overmedicate them so as to require a tracheotomy. This is precisely what transpired at Sacred Heart Hospital on Chicago’s west side according to federal charges brought this week against the hospital owner, an administrator, and four affiliated physicians.

According to Crain’s Chicago Business, 96.7% of Sacred heart’s revenue comes from Medicare and Medicaid. Sacred Heart’s reimbursement for tracheotomies was $160,000. per patient for a 28 day hospital stay. Some of the patient undergoing unnecessary procedures died or had serious medical complications. This is the worst form of medical malpractice.

Should you or a family member have been a patient at Sacred Heart Hospital and suspect unnecessary surgeries or treatment for you or a family member, feel free to call Edmund Scanlan 312-422-0343 for a free consulatation.

No Illinois court decisions currently interpret when the statute of limitations expires on De Puy Hip Replacements lawsuits, but there are decisions by both the Illinois Supreme and Appellate courts that provide guidance. Illinois products liability statute of limitations is found at 735 ILCS 5/13-213(d) which provides that: ” ...the plaintiff may bring an action within 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, of the existence of the personal injury, death…but in no event shall such action be brought more than 8 years after the date on which such personal injury, death…occurred.”

The Illinois Supreme Court has held: “...the statute starts to run when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused.” Knox v. Celotex, 88 Ill. 2d 407, 414-415, 430 N.E. 2d 976, 980 (1982). The Illinois high court has also stated that: “…an injured is not held to a standard of knowing the inherently unknowable…yet once it appear that an injury was wrongfully caused, the party may not slumber on his rights.” Nolan v. Johns-Mansville, 85 Ill. 2d 161, 171, 421 N.E. 2d 864,, 868 (1981).

On August 24, 2010, De Puy Orthopedics, Inc. instituted a recall of its ASR XL and ASR Hip Replacement Systems. These systems feature chromium and cobalt in its ball-and-socket design. In light of the Illinois decisions interpretting the “discovery rule” it appears that patients with De Puy hip replacements that have failed have 2 years from the date they noticed the failure to file suit (See Aug. 5, 2011 blog re: failures). A fair interpretation of Illinois law will lead to the conclusion that the recall of August 24, 2011, puts any person on notice at the time the failure is noticed that it was wrongfully caused by a design defect in the hip replacement system.

People injured in accidents in Illinois frequently hire an attorney recommended by a friend or who advertises on TV. The lawyer retained will sometimes have little or no jury trial experience-this question should always be asked before retaining the attorney. Oftentimes the client becomes unhappy with the lawyer-lack of communication, attorney lacks the required experience, lawyer referring case out to another lawyer, and many more. Whatever the reason you are entitled to consult with another attorney for a second opinion. I have successfully represented injured victims and their families in personal injury and wrongful death lawsuits in Illinois state courts and federal courts throughout the United States for over 30 years.

On the occasions that I have been contacted for a second opinion the most common questions posed are: Is it possible to change lawyers?-the answer is YES, What will it cost to change lawyers?-the answer is often NOTHING, and Will it hurt my ability to collect full compensation?-the answer normally is NO. Remember that if you suffered injuries as a result of the fault of another you will only get one opportunity to obtain full and fair compensation and unless you have a mutual relationship of trust and respect with your lawyer it is unlikely that your goals will be achieved. It is a fundamental right of every client to discharge his/her attorney and hire another attorney and this decision must be respected by the discharged attorney.

All cases present unique factual and legal issues and we offer free consultation to discuss your case. I take pride in guaranteeing that I will be present with you at all times during the lawsuit from initial consultation, depositions, pretrial conferences, the jury trial, and any appeals that may follow. You will not be referred to another lawyer or firm nor will a young associate handle your case. I remain with my clients all the way through the litigation process. This is important because I have numerous significant verdicts for my clients in personal injury and wrongful death actions including many multi million dollar verdicts. The insurance companies and their lawyers know this-and this significantly increases your opportunity to receive full compensation. Should you so choose feel free to contact Edmund Scanlan toll free at 877-494-1309 for a free telephone or office consultation.

Purchasing prescription drugs over the internet without a valid prescription is shockingly simple. An internet connection, a credit card and basic Google skills are all you need to have prescription drugs delivered to your front door.

The National Association of Boards of Pharmacy (NABP) issued a rare “public health alert” on July 28, 2011. Based on a recent study the NABP found that 96 percent of 8,000 rogue websites analyzed continue to operate out of compliance with U.S. pharmacy laws. In their alert the NABP warned: “The fake online pharmacy crisis has reached an epidemic level, they prey on prescription drug abusers, and the most vulnerable members of society…” Most of these sites will sell prescription drugs without a valid prescription. The National Center on Addiction and Substance Abuse (CAPA) at Colombia University in 2006 found that 9 out of 10 websites selling prescription drugs do not require a prescription.

According to research conducted by the Partnership for a found that 1 in 6 Americans purchase prescription drugs via the internet without a valid prescription. They also found that from 2000 to 2007 states with the fastest growth of Internet access also had the largest jump in hospital admissions for treatment of prescription drug abuse. The Journal of Health Affairs in May 2011 suggested that the growth of high speed internet access has fueled prescription drug abuse.

Illinois attorneys representing clients who have had recalled DePuy hip prosthesis implanted, should be aware that these lawsuits can be kept in the state courts. Care must be taken in drafting the complaint and attention should be paid to federal civil procedural deadlines regarding remanding a case back to the state court system.

First, the DePuy ASR XL Hip Acetabular System and the ASR Hip Replacement System that were recalled by DePuy Orthopedics in August 2010, were distributed by Premier Orthopedic Sales, Inc., an Illinois corporation (See blog of April 5, 2011). Premier needs to be joined as a defendant along with DePuy Orthopedics, Inc., an Indiana corporation, pursuant to 735 ILCS 5/2-621.

Second, in drafting the complaint against Premier, it is essential that you allege facts that preclude removal pursuant to 735 ILCS5/2-621(c)(1), (2), or (3), specifically:

The business of prescribing and shipping prescription medications over the internet has been used by physicians and pharmacists to ship medication out of state based solely on an online questionnaire. This can be and frequently is a violation of federal law, and if it is intentional it is a felony.

Many attorneys do not wish to get involved in cases where patients accidentally or intentionally overdose on these medications. There are several reasons for this reluctance. First, they frequently involve drug addicts whose personal physicians would never prescribe these medications. Second, the patient, physician, and pharmacist generally all live in different states and there are significant issues as to which states’ laws apply. These case can be and I have been bringing them in the federal courts with success.

These physicians, pharmacists and pharmacies are commonly committing felonies, namely the crime of misbranding, in violation of 21 U.S.C. 353(b), 21 U.S.C. 331(a) and (k). Pursuant to 21 U.S.C. 333(a)2 it is a felony if it is done with intent to defraud or mislead. Most of the websites state that the physicians and pharmacies are licensed in your local area. Few are licensed where the prescriptions are shipped.

Illinois product liability lawyers need to be aware of the August 2010 recall by DePuy Orthopedics of its defective metal-on-metal hip implant systems. The two hip implant systems recalled are the: (1) ASR XL Acetabular System, and (2) ASR Hip Replacement System, which first became available in 2003.

The most common problem with the ASR hip implant systems is that its components come loose. One of the design defects of these hip implant systems is that the cup-“acetabular prosthesis”-is too shallow causing it to: (1) dislocate, and (2) to shave cobalt and chromium off the metal-on-metal system and into the bloodstream when the joint’s ball strikes against the cup’s edge-“edge loading”.

According to figures released by DePuy, 93,000 patients were implanted with these hip implants. There are current estimates that indicate that as high as 90% of patients with these hip implant systems will require revision surgery.

Physicians who prescribe drugs over the internet without seeing the patient and the pharmacies that fill and ship the drugs have sought to evade criminal and civil liability by prescribing non controlled substances. The DEA enforces the Federal Controlled Substances Act (21 U.S.C. 80 et seq.) which explicitly prohibits the sale of controlled substances prescribed by physicians who have never seen the patient.

Non controlled prescription drugs are governed by the Food, Drug and Cosmetics Act (21 U.S.C. 301 et seq.) which does not explicitly address online prescriptions and consultations. Criminal and civil prosecutions are now being pursued against these online pharmacies and physicians who sell, ship, and prescribe non controlled prescription drugs to patients based solely on an online questionnaire and “without some sort of examination.” U.S. v. Smith, 573 F. 3d 639, 651 (8th Cir. 2009).

The legal theory behind these prosecutions is that online consultations with a physician is not the basis for a legitimate prescription, and therefore constitutes the crime of misbranding under the Food, Drug and Cosmetics Act (21 U.S.C. 353(b)(1), which is prohibited under 21 U.S.C. 331(a) and (k). The introduction or delivery into interstate commerce of a drug that is misbranded is punishable under 21 U.S.C. 333(a)(1), and as a felony under 21 U.S.C. 331(a)(2) if it is done with intent to defraud or mislead. The web pages of most online pharmacies that ship prescriptions without some sort of examination do both. Frequently neither the physician nor the pharmacy are licensed to prescibe or fill prescriptions in the state into which they are shipped.
In U.S. v. Smith, the Eighth Circuit stated: “A drug is misbranded unless dispensed upon “a prescription of a practictioner licensed by law to administer such drug.” 573 F. 3d 639, 650 (2009). The Smith court described a “prescription drug as misbranded if it dispensed other than through a valid prescription.” 573 F. 3d at 651. The Court defined “valid prescription” as “…a bona fide order-i.e. directions for the preparation and administration of a…drug for a real patient who actually needs it after some sort of examination…” 573 F. 3d at 651.
Continue reading

Contact Information