Dr. Adajar had sought treatment for callouses and a chronic ulcer. Despite months of treatment, his condition did not improve. In June 2021, Dr. Baloga prescribed a total contact cast for Dr. Adajar. A day later, an infection flared up so severely that Dr. Adajar’s temperature spiked to over 102 degrees. This required an urgent visit to the emergency room. Dr. Adajar fell into septic shock and suffered numerous other health complications, resulting in an emergency surgical amputation of his right leg to save his life.

As a Chicago medical malpractice lawyer, infection cases come across my desk from time to time. In some cases, amputation led to amputation. It is rare, however, when the patient is also a doctor. As with any medical malpractice case, the plaintiff, or person filing the civil suit, will need to prove the defendant doctor deviated from the standard of care and that this deviation caused or contributed to the amputation.

A deviation from the standard of care generally means that the medical care that deviated from what is expected of a particular health profession under the same or similar circumstances.  In this case, the article did not specify exactly what is being alleged against the defendant, Dr. Baloga. However, broadly speaking, I’d expect there is an allegation that Defendant failed to properly manage the patient’s foot chronic ulcer, a type of sore, and failed to properly treat the condition. In this instance, part of the treatment included a total contact cast which is sometimes used to treat foot sores. This treatment may or may not have been the right decision. If it was the right decision, the cast may not have been placed properly or it may have been placed too late to be effective.

Another area that will likely be in dispute is causation. In particular, the defendant doctor will likely argue that the infection was due to the patient’s underlying, preexisting foot ulcer caused by vascular disease, or poor blood flow, most likely related to the patient’s underlying Type II diabetes.

Patients with Type II diabetes sometimes develop sores due to poor blood circulation. These vascular problems place patients at higher risk for developing skin sores or ulcers. These sores or ulcers can become infected, particularly if they are not managed properly, and can cause gangrene. In turn, gangrene causes tissue death from a lack of blood flow and can ultimately lead to amputation in order to save the person’s life.

Returning to this case, the defendant will likely argue that the patient’s amputation was inevitable due to patient’s chronic foot ulcer or sore and that contactless foot cast was the proper treatment. However, based on the timing of events, the severe infection leading to a fever seemed to occur within 24 hours or so of the cast being placed.

As a medical malpractice lawyer, I would be curious to know whether this patient should have been placed in a cast to begin with. If it the treatment plan was proper, I wonder if the cast should have been placed sooner or if it was simply placed improperly. The answer to any of these questions would require the use of a medical expert’s testimony. As a practical matter, the patient’s medical malpractice lawyer will probably need to a hire an expert in the defendant doctor’s expertise, podiatry in this case, and some sort of surgeon or vascular specialist to connect the deviation from the standard of care to the severe infection and resulting amputation. The defendant will undoubtably need to also hire one or more experts to refute the testimony of the plaintiff’s expert. How well each expert is able to explain their opinions and the basis of their opinions will go a long way in determining how a jury might decide the case if the case does not settle. The fact that the plaintiff in this case is a doctor, himself, and the fact his injury is the loss of his leg, makes this case unusual and compelling.

By: Jason Kroot of Kroot Law, LLC

Sources Used:

Richard, L (2022, February 2). Doctor sues fellow doctor for malpractice after infection leads to his leg being amputated. New York Post.

The practice of medical device and drug companies providing gifts and payments to physicians is nothing new. A recent study published by the New England Journal of Medicine found that over two-and-a-half years, physicians licensed in Massachusetts received over $76 million from those companies. This figure does not gifts of less than $50. Doctors received these payments for attending lectures, dinners, or conferences sponsored by companies hoping to promote their products, raising the question of conflict of interest. For example, if a patient sees two different doctors for a medical issue and one recommends surgery while the other opts for a wait-and-see approach, the patient might wonder if one doctor has some kind of relationship with the device and drug industries.

Currently a few states have laws requiring corporations to disclose payments to health providers. The Physician Payment Sunshine Act goes into effect in 2014, making corporate payment information available nationwide. Having this sort of transparency about financial influences on physicians will mean better options for patients. They will be able to seek out information when picking a doctor or making a decision about a medical procedure. Patients may also consider checking payment information when a doctor switches a long-time prescription medication from a generic to a name brand.

Even when a doctor believes he is not being influenced by an occasional lunch provided by a pharmaceutical representative, he may subconsciously develop positive feelings about a product as a result. Another common subconscious manipulation occurs when drug companies pay doctors consulting fees to listen to descriptions of new medications and evaluate their performance. The simple repetition of information can often be enough for the doctor to see the product in a favorable light and therefore prescribe it before a cheaper or generic drug.

While most doctors work diligently to provide the best possible care for their patients, the fact remains that corporations are willing to spend millions of dollars to sell their products. The more knowledge patients have about physicians’ relationships with drug companies, the better equipped they will be to make informed decisions about where to find the best care. This new transparency may also dissuade the small minority of unscrupulous doctors from recommending a drug or device that is not in the best interest of their patient.

Sources:

New York Times, Doctors’ Lucrative Industry Ties, 5-13-13

Setting aside whether an arbitrary cap on damages in all medical malpractice cases is fair (regardless of patient’ injury or the health professional’ misconduct), do caps actually work? That is, do caps on non-economic damages in medical malpractice achieve the goal of reducing malpractice insurance premiums or is there another solution? Based on the results in California, Texas, and other states, as well an independent study conducted by Duke University, the answer seems to be no.

Malpractice Premiums in States with Caps on Non-Economic Damages

The malpractice premiums in states with caps on non-economic damages are 12.4% higher than in states without caps. (Medical Liability Monitor, October 2005) In five states that recently enacted medical malpractice caps (Mississippi, Nevada, Ohio, Oklahoma, and Texas), premiums rose to nearly double the rates as states that do not have caps on damages. (Medical Liability Monitor, October 2004)

Malpractice Premiums in Texas after Caps on Non-Economic Damages

In 2003, Texas passed a cap on non-economic damages in medical malpractice cases at $250,000. The cap was enacted after an intense campaign in which the Insurance Commissioner of Texas claimed caps would reduce insurance rates by 19%. However, just two months later, major malpractice insurance carriers requested rate increases of 35 % for doctors and 65% for hospitals despite earlier promises that the caps would lower rates. (See “Mythbuster: Specific State Examples that ‘Caps’ Don’t Work!” Center for Justice & Democracy, June 13, 2005).

In a document filed by GE Medical Protective to the Texas Department of Insurance, obtained by the Foundation for Taxpayer Consumer Rights, the company admitted “capping non-economic damages will show a loss savings of 1.0%.” This document may be viewed at http://www.consumerwatchdog.org/malpractice/rp/2059.pdf, August 18, 2006.

Malpractice Premiums in California after Caps on Non-Economic Damages

About fifteen years ago, California passed their Medical Injury Compensation Reform Act capping non-economic damages at $250,000. Thereafter, malpractice premiums for physicians in California rose 450%. Rates did not fall until the 1988 passage of Proposition 103, an insurance reform initiative that lowered physicians’ premiums 20% in the first three years after enactment. (Press Release, “Third Time’ a Charm: Another Malpractice Insurer Admits Damage Caps Won’t Lower Doctors’ Premiums,” Foundation for Taxpayer and Consumer Rights, February 15, 2005.)

Duke University Study on Med Mal Caps in Illinois and Insurance Premiums

In 2005, Illinois passed its own cap on damages in medical malpractice cases (which is now being appealed). Like in Texas, proponents of the statute argued malpractice insurance premiums were so exorbitant because of runway jury verdicts and went on to claim doctors were fleeing the state as a result. However, these arguments were dispelled by an independent Duke University study conducted by Professor Neil Vidmar. (Duke Study)

The Duke study shows the number of doctors in Illinois had actually increased between 1993 and 2003, including specialties like obstetrics and gynecology which are vulnerable to larger verdicts.

The study found that “[t]he Illinois Tort System does not appear to be the cause of the undisputed fact that doctors’ liability insurance premiums showed dramatic rises.” Regarding a cap on non-economic damages, the Duke study concluded a $500,000 cap “would have resulted in a minimal reduction in overall payouts to plaintiffs and would be unlikely to affect doctors’ liability insurance premiums.”

Posted by Jason Kroot, Chicago Medical Malpractice Attorney of Kroot Law, LLC