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

A group of researchers from the Johns Hopkins School of Medicine examined the catastrophic payouts by U.S. doctors (through their insurance companies) between 2004 and 2010 listed in a government database of medical malpractice payments. These awards most commonly involved injury to or death of an infant, quadriplegia or brain damage resulting from a procedure, or an anesthesia problem. Their findings showed that though the high-profile cases attracted attention, the actual impact on the nation’s healthcare spending was negligible–the cases paid an average of $1.4 billion yearly, which works out to a mere five-hundredths of a percent (.05) of money spent on healthcare in the U.S.

According to the research team, the true financial drain on the healthcare system is the cost of unnecessary services, which can reach up to $60 billion a year. Study leader Marty Makary, an associate professor of surgery and health policy, says, “the real problem is that far too many tests and procedures are being performed in the name of defensive medicine, as physicians fear they could be sued if they don’t order them.” Makary believes this finding illustrates why efforts to create malpractice caps are misguided and will have little impact on overall healthcare spending. “It’s not the payouts that are bankrupting the system–it’s the fear of them,” Makary says.

Some legal observers believe that a stronger definition of “standard of care” (the conduct a medical professional would exercise in a similar situation) could ease the fears that lead doctors to order unnecessary tests. However, a lesser definition of the standard of care will only make it harder for actual victims of medical malpractice to recover–which is already less than 25%. Dr. Makary sees a need for further research to help prevent catastrophic payouts altogether. Like many in the medical profession, his goal is to improve patient safety while reducing costs–an ambition that should be popular with nearly everyone.

Sources:

Thomson Reuters News and Insight, Medical Malpractice Study Finds High Payouts Not a Huge Drain, 5-17-13

Health News Digest, “Catastrophic” Malpractice Payouts Add Little to Health Care’s Rising Costs, 4-30-13

Baby Boomers, those born between 1945 and 1965, make up nearly a quarter of the U.S. population and are particularly at risk. In 2012, the Centers for Disease Control and Prevention (CDC) recommended that all Baby Boomers be tested for HCV. In studies of HCV infections reported from 8 sites nationwide, the CDC found that 67% were from this age group. Additionally worrying is the fact that nearly three-quarters of deaths involving HCV infection occurred in this demographic group. In the past, HCV testing was reserved for those with known risk factors, like use of injection drugs, blood transfusions, or organ transplants, so it’s likely that many Boomers have never been tested.

Left untreated, a hepatitis C viral infection can be life-threatening, leading to serious liver damage. Liver cancer is the most rapidly increasing cause of cancer-related deaths in the U.S., and the number of deaths caused by HCV has risen to 15,000 per year, which is double the number from a decade ago. A physician fails timely diagnose and treat hepatitis C may be guilty of medical malpractice.

The CDC’s estimate that around 3 million adults in the U.S. are unknowingly infected with the hepatitis C virus reinforces the need for the follow-up test for Baby Boomers and others at risk. CDC Director Thomas Frieden recommends automatic systems for follow-up testing after a positive antibody test, as well as further care and treatment if necessary. He also cited a need for more efficient means of testing for HCV in physicians’ offices, rather than relying on more time-consuming laboratory results.

Sources:

Medscape, CDC Urges Second Test to Catch Hepatitis C Infection 5-7-13

Medscape, CDC Says All Baby Boomers Should Be Tested for HCV, 8-17-2012

Nolo explains that expert witness testimony plays an instrumental role in malpractice cases. In Illinois, a Chicago medical malpractice lawyer is usually required to attach an affidavit and report to the complaint verifying the a qualified expert has reviewed the case and feels it is meritorious. Without an expert the judge will likely dismiss the case due to the fact that the jury will need an expert witness to help them to better understand the complicated facts regarding medical malpractice.

According to Nolo it is a medical expert’ job to address the following two questions:

Did the doctor or medical facility follow the standard of care for doctors or facilities in the same position?

In addressing the question of standard of care the expert will testify about what a normal, competent doctor would have done in the situation at issue in the case and offer his or her expert opinion on whether or not the particular doctor involved in the lawsuit provided that standard of care.

Did the medical facility’ or doctor’s failure to follow the standard of care injure the patient?

An expert must also testify about whether the doctor’s failure to live up to the standard of care resulted in injury to the patient. The expert will have to explain to the jury how the doctor’ negligence or incompetence resulted in the injury.

Nolo adds that the plaintiffs in the case will have their own team of medical experts which is why it is important to retain your own expert before your case is brought to court. State regulations vary regarding who may testify as an expert and your lawyer can help you to locate an expert in Illinois that will be most beneficial to your particular malpractice case.

The article discusses hospital’ claims that they are concerned about the health and safety of the baby and mother and that they are also concerned about protecting the privacy of the medical staff in implementing these restrictions. According to the article, thanks to Facebook and Youtube more and more doctors and hospital staff members are raising concerns over their own privacy.

However, the media has pointed out that many of these photography and video bans are being enforced to protect hospitals from malpractice lawsuits. Their concerns come against a backdrop of medical malpractice suits in which video plays a key role. One of the most prominent cases at the forefront of this movement to ban delivery room photos and videos stems from a case settled in 2007 that involved a baby that was born at the University of Illinois Hospital and that suffered from shoulder complications and permanent injury. The Chicago medical malpractice lawyer representing the family used the video in a malpractice lawsuit that was taken by the father in the delivery room. This video allegedly showed the nurse-midwife using excessive force during delivery and it led to a payment to the family of $2.3 million dollars.

According to Mike Matray, editor of “The Medical Liability Monitor”, a newsletter circulated in Chicago, this issue has been getting more attention on many hospital agendas, “I have certainly heard this issue discussed more often than I ever have previously, and it’ certainly true that some risk managers in hospitals are advising doctors to stop allowing video in the delivery room.

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