Articles Posted in Personal Injury

Illinois hospitals were granted immunity from disclosing confidential patient records by the Illinois Supreme Court. Bagent.v. Blessing Care, d/b/a Illini Hospital, 224 Ill. 2d 154, 862 N.E. 2d 985 (Jan. 19, 2007). An Illinois woman’s common law right of privacy claim against a hospital that her confidential medical records were divulged by an employee of the hospital was unanimously rejected by the high court last week. Defendant Mary Young was a phlebotomist employed by Illini Hospital. She had received confidentiality training from her employer regarding HIPAA, 110 Stat. 1936. Plaintiff Suzanne Bagent had a blood test with results being sent to Illini Hospital showing that she was pregnant.

Shortly thereafter defendant Mary Young visited a local tavern and shared the blood test results with plaintiff’s sister. Plaintiff complained to the hospital and thereafter filed a lawsuit against the phlebotomist and Illini Hospital under a doctrine of respondeat superior. The trial court dismissed Illini Hospital finding that disclosure of plaintiff’s medical records was “not made in the course of or within the scope of Young’s employment.”
Plaintiff appealed the dismissal to the Appellate Court which reversed holding that a jury should decide whether Young was acting within the scope of employment. Young v. Blessing Care, d/b/a Illini Hospital, 363 Ill. App. 3d 916, 844 N.E. 2d 469 (2006). The Illinois Supreme Court reversed the Appellate Court in Docket No. 102430.

The Illinois Supreme Court discussed the Restatement (Second) of Agency Sec. 228 which provides that: (1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master..

The Supreme Court held that all three criteria must be met to conclude that an employee was acting within the scope of employment. Plaintiff relied upon Section 229 of the Second Restatement which elaborates the first criteria of Section 228, including the admonition to consider such factors as whether the act is outside the enterprise of the employer and whether the employer has reason to expect that such an act will be done. Clearly disclosure of confidential medical information was not outside the enterprise of a hospital and the hospital had reason to be concerned that such an act would occur, why else provide training. The Court ignored these factors in its analysis.

In its unanimous opinion the Illinois Sup. Ct. strangely stated:
“.the ultimate question is whether or not the loss resulting from the employer’s acts should justly be considered as one of the normal risks to be borne by the employer.”
I agree with this statement of the Court but disagree with the analysis they use to immunize a hospital from liability for the release of confidential medical information of its patient by an employee of the hospital.

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An Illinois internet prescription malpractice case that I tried last year now has resulted in the indictment of the very doctors sued. The doctors were charged in the civil suit with: (1) prescribing Xanax and Ultram to a patient they had never seen or examined; (2) prescribing excessive dosages and; (3) practicing medicine in the state of Illinois without a license.

As reported in last months’ post on internet prescription malpractice, the plaintiff, a 30 year old husband and father ordered Xanax and Ultram over the internet. The plaintiff had previously successfully completed a drug rehabilitation program through Hazelton, and had been clean and sober for a long time. However, looking at his e-mails one day in May 2004 he succumbed and ordered the anti-anxiety drug Xanax and the pain killer Ultram via an internet questionnaire. As he testified before a jury in U.S. District Court in Chicago, he took these drugs partially for back pain and partially for recreation.

After consuming these drugs the next thing he recalls is waking up in a hospital in suburban Chicago three weeks later. The drugs repressed his breathing causing a hypoxic event that landed him in a coma. Neither Dr. Klinman. a Pennsylvania internist, whose name was on the bottle of Xanax nor Dr. Ahlawat, a New Jersey internist, whose name was on the bottle of Ultram, had ever seen plaintiff or spoken with him. All the information they had was contained on the online questionnaire that he filled out.
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An Illinois internet prescription malpractice case that I prosecuted beginning in 2004 opened my eyes to the widespread abuse of prescription drugs the internet facilitates. An unholy alliance has developed between physicians and the internet pharmacies that push drugs via spam e-mails and pay for click advertising. This is the first of what will become a continuing focus on the practice of physicians prescribing frequently abused drugs based solely on an on line questionnaire. This article is not meant to criticize or impede a patient with a lawful prescription from having it filled over the internet.

In April 2004, a 30 yr. old plastic salesman along with his newly pregnant wife had just moved into their new home in suburban Chicago. He was an active man who played golf and basketball regularly. He loved reading Dostoevsky and Hemmingway. His sales job required 70-hour work weeks and he drove over 60,000 miles per year servicing his customers. Stress was very high and his back was bothering him, but his family life and work prospects were promising.
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In a Chicago wrongful death action that asserted claims for underinsured motorist benefits, the Illinois Supreme Court interpreted whether the “per person” limits of liability or the “per occurrence” limits of liability applied to family members derivative claims. The Illinois Wrongful Death Act, 740 ILCS 180/2 states: “…every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person…” Illinois courts have defined “next of kin” as those blood relatives of the decedent who are in existence at the time of the decedent’s death who would take the decedent’s property if the decedent had died intestate. Provena v. St. Therese Medical Center, 334 Ill. App. 3d 581, 778 N.E. 2d 298 (2002).
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A Chicago product liability suit that I tried recently resulted in $1.8 million verdict to a 40 year old Chicago man whose leg was crushed on an assembly line. Many interesting legal issues arose including who should be placed on the jury verdict form regarding apportioning fault among defendants, third party defendants, and plaintiff (see previous post regarding this issue). In 2002 plaintiff was working on an assembly line that produced laminated boards for use as countertops and cabinets. At the end of the laminating line there was a scissors lift table which received the completed boards and which was operated by a foot switch.

While guiding boards onto the scissors lift plaintiff accidentally stepped on the foot switch causing the table to lower while his foot was underneath. The boards and table weighed over 1,500 lbs. and crushed his right leg. Plaintiff sustained fracture of tibial plateau, bimalleolar fracture of ankle requiring six surgeries and ultimately fusion of his knee. Plaintiff, a former drug user, complicated his medical condition by injecting Oxycontin into his right arm in an unsuccessful attempt to relieve pain, thus leading to osteomyelitis in his right leg.
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An Illinois wrongful death verdict arising out of a construction accident where a scaffold collapsed was reversed by the appellate court in Chicago. The Court did rule that the defendants had waived any right to challenge the award of $14,230,000. The issue as framed by the Appellate Court:

Is a defendant who settles with the plaintiff prior to trial still a “defendant sued by the plaintiff” within the meaning of section 2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1117)? If we answer this question in the affirmative, then all defendants sued by the plaintiff, including those who settled prior to trial, may be included on the jury verdict form so that the fact finder can assign each defendant their degree of fault, if any. If we answer this question in the negative, then only those defendants who remain when the case is submitted to the fact finder may be included on the verdict form.

Ready v. United, 367 Ill. App. 3d 272, 854 N.E. 758, 2006 WL 2434935 (2006).
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One Chicago medical malpractice case that did not involve either doctors or nurses was resolved too late to benefit the victim. In 1999 a Chicago area woman went to her gynecologist for her annual pap smear. Because she had been previously diagnosed with a sexually transmitted disease she was at a higher risk of developing cervical cancer, and therefore her doctor recommended annual pap smears. The pap smear was sent to a large national lab to be read. The results were communicated to the gynecologist as a normal pap smear. Approximately ten months later the patient contacted her gynecologist because she was having unusual discharges and she came in for an appointment. Upon physical examination the physician made a visual diagnosis of cervical cancer which was later confirmed by a biopsy.
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A libel action in suburban Chicago led to a $7 million award for Illinois Chief Justice Robert R. Thomas. A Kane County jury returned the verdict against the Kane County Chronicle and a former columnist on November 14, 2006. Justice Thomas, a former Chicago Bear and Notre Dame kicker, alleged that the columnist and the Chronicle defamed him by printing that he traded his vote in an attorney disciplinary case in exchange for a political favor to enable a candidate he favored to be elevated to the bench. Attorneys representing the defendants indicated that they will likely appeal, and that one of the issues they will raise will be that the jury should have been told that the columnist was a opinion columnist not a news reporter. The trial judge, Cook County Circuit Judge Donald J. O’Brien Jr., ruled

that there is no separate First Amendment privilege for statements of opinion and that a false assertion of fact can be libelous even though couched in terms of an opinion.

The basis of the ruling was a U.S. Supreme Court decision Milkovich v. Loraine Journal Co., 497 U.S. 1 (1990).
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