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A Cook County judge has recently permitted a lawsuit brought by a former University of Chicago student proceed on a medical malpractice theory that the U of C’s student medical center was negligent in not doing a “rape kit” after a student was assaulted, denying her the ability to secure criminal charges against her attacker.  The University claims that the student refused the rape kit at the time of her examination.

The victim was raped at a party while she was a student at The U of C several years ago.  She was required by her student health insurance to seek treatment at the student health clinic.  The clinic failed to offer her a rape kit and because of its absence the victim alleges that the police and state’s attorney declined to prosecute her attacker.  She also sued her attacker in civil court and allegedly settled with him for an undisclosed sum.

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Alex Parker of the Chi-Town Daily News is reporting that according to the Illinois Department of Public Health, the University of Chicago Medical Center is guilty of violating a federal law by not giving an elderly patient who later died adequate medical treatment.  The University of Chicago’s own internal investigation demonstrated that its staff did not follow the U of C’s own policies and procedures when caring for the patient.

The Emergency Medical Treatment and Active Labor Act (EMTALA) is a federal law that requires every emergency room to offer stabilizing treatment to any patient who comes to the emergency room for treatment, regardless of ability to pay.

Anyone who meeds medical care at an emergency room is absolutely entitled to be triaged and monitored regardless of the circumstances.  EMTALA absolutely forbids hospitals from engaging in the practice of patient “dumping” including outright denials of treatment or a referral to another ER.  This practice often occurs when a low income or senior citizen appears at an ER facility and does not appear to be able to pay for care.

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The United States Department of Health And Human Services has offered the public some advice on how to protect themselves against unintended medical errors.  According to the Department of Health and Human Services medical errors are one of the nations leading causes of death.  Here are 20 tips to help avoid unintended medical consequences:

1. The single most important way you can help to prevent errors is to be an active member of your health care team.

That means taking part in every decision about your health care. Research shows that patients who are more involved with their care tend to get better results. Some specific tips, based on the latest scientific evidence about what works best, follow.

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The National Academy of Science is reporting that close to 100,000 people who die each year are the victim of preventable medical mistakes.  A medical mistake can mean a doctor chose the wrong type of care in response to a medical problem or provided the correct type of care but carried it out incorrectly.

church lady.jpgComedian Dana Carvey is one of the lucky ones.  Mr. Carvey believed he was having a double coronary artery bypass which would save his life.  Instead his doctors bypassed the wrong artery.  Luckily, he survived the mistake.  He has filed a $7.5 million lawsuit against the surgeon who made the mistake.

The sugeon claims he made an honest mistake, in part because Mr. Carvey had an unusual anatomic architecure.  Carvey doesn’t see it that way.  “It’s like removing the wrong kidney. It’s that big a mistake,” the entertainer told People magazine.

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MarineCorpsSeal.jpgShould an active member of the United States military be able to sue the United States Government for medical malpractice?  The answer according to the United States Supreme Court in Feres v. The United States, 24 U.S. 135 (1950) is no.  The Feres doctrine, as it is commonly know, prohibits an active member of the military and not on furlough from suing the United States for injuries caused by another member of the military.  This bar does not extend to family members of active military personnel.

A congressman from New York has introduced legislation in congress to reverse the Feres decision and make the military accountable for the medical malpractice of military doctors.  The Carmelo Rodriguez Military Medical Accountability Act of 2009 is the subject of hearings that are currently before the House Judiciary Subcommittee on Commercial and Administrative Law.  Carmelo Rodriguez was a Marine who died in 2007 after military doctors misdiagnosed a melanoma on his left buttock.  Motivated by his memory, Sgt. Rodriguez’s family has spearheaded this legislation.

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In what is being reported as a Chicago example of a growing trend nationwide, a 77 year old man south-side nursing home resident was killed by his 50 year-old mentally ill roommate.  Over the past several years nursing homes have become common places to put mentally ill adults who have nowhere else to go.  The unfortunate problem is that most nursing home facilities are not staffed with care givers who have the appropriate skill sets necessary to deal with mentally ill, and often violent, patients.

Illinois ranks first nationwide in the number of mentally ill patients under the age of 65 who live in nursing or assisted care facilities.

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When a nursing home assumes the care of an elderly or infirm patient they owe him or her the obligation to provide a safe and nurturing living environment.  We have seen an uptick in these types of cases in our own practice and are concerned that this is a growing trend that will effect Chicago’s elderly as the projected elderly population in america grows over the next many years.

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corruption.jpgJessica Fargen reported in today’s Boston Herald that a Boston Medical Malpractice defense attorney hired by one of the area’s largest malpractice insurance companies advised a doctor that he could avoid being served with a summons in a major medical malpractice lawsuit if he left the country.

Dr. Eran Bar-Mer finished his fellowship at Beth-Israel Deaconess Medical Center and was travelling cross-country with the intention to emmigrate to Israel.  Allegedly his insurance company appointed lawyer advised him that he was “lucky” to be leaving the country and the jurisdiction of the court.  He was ultimately served with the lawsuit when he returned to Boston on business two months later.

Legal proceedings are adversarial in nature.  Most lawyers believe in punching hard but punching fair.  When a member of the bar advises a defendant whom he represents to leave the jurisdiction of the court to avoid service things have gone a little too far.  Hopefully this lawyer has simply lost his way.  It is sad when the greed and corruption that has become pervasive in corporate america taints the legal profession.

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Our clients often ask us about damages in medical malpractice cases.  Sometimes they tell us that they aren’t interested in financial compensation and only want to do something to make sure that their doctor doesnt hurt anybody else.

The remedy in civil medical malpractice is financial.  When we proceed with a medical malpractice lawsuit we go to court seeking money damages.  What those damages will be is ultimately a decision that will be made by a jury after being presented with evidence of both economic and pecuniary loss. 

Some of our clients are happy to learn that each and every malpractice claim is reported to a national databank which is more or less a doctor’s permanent record.  Additionally, the Illinois Department of Professional Responsibility investigates every malpractice claim that goes to verdict or settles to determine if the doctor’s license ought to be affected.

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We like to take note of outstanding verdicts and settlements from around the country on our blog.  Today an Arizona jury awarded $11 million to the widow of a 36 year old victim of a traumatic brain injury that occured at an assisted living facility.

While a resident at the facility his caregivers force fed him plastic bags, catsup packets, paper towels and candy wrappers which caused an obstruction of his GI tract.  These foreign body obstructions directly caused the patients death.

Every patient at every facility deserves to be cared for in a humane and dignified way. 

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Yesterday 45 year-old actress Natasha Richardson died tragically after she sustained a brain injury in what has been reported as a minor fall on a Quebec ski slope.  It has been reported in some media outlets that her brain become swollen after she sustained a shearing injury caused by whiplash type forces during her fall down.

While her autopsy has not been made public and we have no direct knowledge of the facts surrounding her death, the fact that what at first seemed to be a relatively minor injury resulted in tragedy is not an unfamiliar circumstance.  We have represented many brain injured clients who have suffered their injuries as a result of what at first seemed like mundane every day trauma.

In 2005 Goldberg & Goldberg hired a world renowned expert on vestibular function to measure shearing forces on the brain and theorize on how they translate to brain injuries..  Our expert’s reseach compared the relatively mundane forces that the brain experiences daily during activities of normal living to excessive forces on the brain that occur in activities like roller coaster riding or piloting a jet fighter.  What we learned was extraordinary.  Force on the brain cannot be measured on a linear axis.  The head and brain moves rotationally on a 360 degress plane.  The body cannot compensate for some of these more unusual head movements that at first glance seem ordinary.  As a result tremendous shearing forces can injury the brain.  This research has really helped us learn and understand the mechanisms of head injuries. 

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