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Showing 10 posts in Medical Malpractice.

How a Recent Interpretation of the Wisconsin "Borrowing Statute" Will Affect Multi-State Healthcare Practices in Wisconsin

Wisconsin businesses, including physician groups, clinics, and hospitals, operating across state lines facing personal injury exposure should be aware of a recent Wisconsin Court of Appeals opinion defining a clear test to evaluate whether a claim is untimely: Paynter v. ProAssurance Ins. Co., No. 2017AP739 (Mar. 27, 2018). The newly defined test specifically affects medical malpractice claims alleging a misdiagnosis and others where the claimed injury becomes apparent only after the alleged negligent conduct. Even if the subject conduct occurred in Wisconsin, a Wisconsin court can "borrow" the statute of limitations from another state if such an injury occurs outside the State in certain instances. In this case, the court declared Wisconsin "borrows" another State's statute of limitations when the first instance of "greater harm," greater than that which existed at the time of the subject conduct, occurs outside of Wisconsin. More ›

What Medical Providers should know about "Custom and Habit" Testimony

"If it wasn't charted, it didn't happen." Most medical providers have heard the adage, but is it true? Due to the realities of practicing medicine, health care providers are occasionally unable to document each and every aspect of their care within the medical record. What's more, a medical provider's recollection of a given patient's care can fade by the time a lawsuit is filed. So how might a nurse, mid-level, or doctor handle an aggressive Plaintiff's attorney who questions how, in the absence of documentation and recollection, a provider can nevertheless testify that a certain type of care was provided? Some providers can rely on their "custom and habit" to explain how they treat similar patients under a specific set of circumstances. In other situations, like Szekeres v. Mary T. Riggs, however, "custom and habit" testimony can be inadmissible. More ›

Court Holds Alteration of Medical Record does not Create Inference of Falsification

Watson v. West Suburban Medical Center, 2018 IL App (1st) 162707

We're going to begin exploration of this recent Illinois decision, by referencing one of our favorite movies: The Verdict (1982) starring Paul Newman. In the movie, Newman's character, lawyer Frank Galvin, wins a medical malpractice trial on behalf of Deborah Anne Kaye against St. Catherine Leboure Hospital. During the trial, Galvin elicits testimony from Nurse Kaitlin Costello Price that the patient had eaten just one hour before a surgery during which she aspirated, resulting in her paralyzation and permanent vegetative state. On cross-examination from defense counsel for the Hospital, Nurse Kaye produces a photocopy of the original medical record which proves she had noted the time at which the patient last ate, as well as that the record had been altered by an anesthesiologist, Dr. Robert Towler, to conceal that fact. While the able defense attorney convinces the trial judge to suppress evidence of the altered record—as well as to issue an admonishing instruction to the jury to disregard all Nurse Price's testimony—the jury renders a guilty verdict, and even asks if it can increase the amount awarded to Mrs. Kaye's family.

With the advent of electronic medical records and audit trails, the ability of healthcare providers to deliberately alter medical records with the intention of concealing harmful information—all without being noticed—is limited at best. But what happens when a known alteration of a medical record calls into question the validity of a material fact? Is evidence of the alteration admissible? Does such evidence create an inference of falsification? These issues were addressed in Watson v. West Suburban Medical Center, 2018 IL App (1st) 162707. More ›

Reviewing Important Illinois Healthcare Court Rulings: Lack of Privileges to Perform Procedure Inadmissible to Prove Breach

We continue our look at recent Illinois court rulings impacting health care, with a review of Arient v. Alhaj-Hussein, 2017 IL App (1st) 162369.

In this case, plaintiffs sought damages from defendant physician and his employer after the patient became paraplegic following a celiac plexus block procedure. Plaintiff attempted to present evidence that defendant physician lacked privileges to perform a celiac plexus block and therefore breached the standard of care. The Court held that evidence of defendant physician’s lack of privileges was inadmissible as there was no statute requiring him to obtain privileges before performing such a procedure. Furthermore, whether defendant physician possessed privileges to perform the procedure was irrelevant as such evidence did not tend to make the allegation that he deviated from the standard of care more or less probable.

Reviewing Important Illinois Healthcare Court Rulings: Evidence of Malpractice Insurance Generally Inadmissible

In our second of a series of posts looking at the impact of several recent court rulings on healthcare law in Illinois, we look at The Private Bank v. Silver Cross Hospital and Medical Centers, 2017 IL App (1st) 161863. In this case, the plaintiff alleged that an emergency room physician breached the standard of care by negligently delaying to treat her fiancé, who suffered an anoxic brain injury while admitted to the ICU for pneumonia. Plaintiff sought damages including loss of consortium and loss of a chance to marry, which were dismissed as Illinois does not recognize claims for the loss of a chance to marry or loss of consortium on behalf of a patient’s fiancé.  More ›

Illinois Appellate Court Decision in Wrongful Death Case Creates Adverse New Precedent for Handling Discovery Requests in Med Mal Cases

In Illinois, the First District Appellate Court in the Fifth Division addressed the question of whether or not a self-insured hospital is exempt from producing its self-insurance documents during the course of discovery. The underlying wrongful death case was filed in Cook County, Illinois by the Administrator of the Estate of a hospital patient who had suffered a cardiopulmonary arrest and had died after undergoing medical procedures at the defendant hospital. More ›

Illinois Appeals Court Protects Hospital Counsel's Right to Speak with Former Agents of Hospital

For attorneys who represent hospitals in medical malpractice cases, dealing with nursing witnesses who have retired or relocated can be difficult. In addition to the practical issues of finding these witnesses, contacting them and communicating with them remotely, potential legal issues can further complicate circumstances. For example, opposing counsel may take issue with attempts to contact such witnesses under the broad prohibition against defense attorneys communicating with treating witnesses (known as the Petrillo doctrine). Opposing counsel may also seek the exact nature and content of such communication and challenge the existence of any privilege protecting it. While in most cases these issues can be resolved informally among the attorneys, hospital attorneys should keep the case of Caldwell vs. Advocate Condell Medical Center, 2017 IL App (2d) 160456 (Oct. 4, 2017) at ready reference in case they cannot. More ›

Common Mistakes Physician Extenders Make in Their Practices

First of all, for those who may be thinking “what is a physician extender,” a physician extender is a licensed health care provider (not a physician) that provides medical services typically performed by a physician. More ›

EMR and E-Discovery Part Two: On the Audit Trail

In part two of our series, EMR and E-Discovery, author David Levitt delves into audit trails, a type of metadata that creates a chronological record of access and changes to the data, and explains why an audit of metadata parameters could be a valuable risk management tool to healthcare institutions. More ›

EMR and E-Discovery Part One: Questions and More Questions

This may seem an odd way for an attorney to start a post, but while I know many of the questions, I do not have the answers. But the fact is that the intersection of Electronic Medical Records (EMR) and e-discovery is in the very early stages. More ›

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