Recent Cases, Speeches and Articles
David Burtker and Kenneth Seale represented a urologist who performed cryoablation surgery on the plaintiff for Gleason Score 7 prostate cancer in August, 2006. Thereafter, the patient was seen by the defendant three times within the next 30 days, allegedly complaining of a swollen scrotum, pain in the tip of the penis, fever, swelling, and chills. Approximately five weeks post procedure, the patient presented to an emergency department, wherein he was found to have a prostatic abscess and to be in septic shock. The patient underwent treatment for the abscess, but developed a recurrent abscess three months thereafter, and at the time of trial has a permanent pubic tube for urination as a result of bladder dysfunction. During the course of the litigation, it was asserted that the number of cryoprobes used during the procedure was excessive, and that the defendant failed to follow up on the patient’s post-procedure complaints, which were indicative of post-surgical infection. The defendant, one of the very first urologists in the United States to perform cryoablation surgery for prostate cancer, starting in 1992, testified that the complaints that the patient presented were anticipated complications of cryoablation surgery and that the prostatic abscess found approximately five weeks post-procedure arose after the last post-operative visit.
After approximately six hours of deliberation, the jury returned a “not liable” verdict on behalf of the defendant. It is interesting to note that the plaintiff’s expert witness admitted he was not trained in, nor did he ever perform, cryotherapy ablation procedures for prostate cancer and that the defendant, and the defendant’s expert witness, had over 35 years of experience in performing this specific procedure for the treatment of prostate cancer. Lastly, there was testimony that the subsequent treatment on the part of the urologist, in failing to surgically drain the prostatic abscess found initially, was the sole proximate cause of the recurrent abscess, which purportedly resulted in bladder dysfunction, and the patient’s permanent pubic tube today.
In one of only a few cases brought under the Illinois Contribution Act over the past 20 years, David Burtker and Peter Strauss represented an independent-contracted nurse in a lawsuit by her contractee, Provena St. Joseph’s Hospital, for a claim of contribution once the hospital settled the underlying medical negligence case on behalf of the nurse and two other employed nurses at Provena St. Joseph’s Hospital. The underlying medical negligence claim asserted the failure to monitor, and properly respond to, complaints of intractable back pain during a 24-hour period, from an undiagnosed, unstable spinal fracture of T12, resulting in paraplegia on June 16, 2005. During the underlying medical negligence case, the hospital provided expert testimony on behalf of the first eight-hour shift nurse, on behalf of the independent contractor nurse if, in fact, she followed an order for flat bed rest earlier provided by the neurosurgeon, and did not support the conduct of the third shift nurse, since that nurse admittedly violated the flat bed rest order, in getting the patient up in a Hoyer lift and allowing the patient to sit upright for a period of four to six hours. The hospital provided neuroradiological expert testimony that there was no change in the patient’s diagnosed spinal fracture at T12 on June 15, 2005. Moreover, the hospital’s neuroradiology expert, upon reviewing the MRI performed around the end of the independent contractor nurse’s shift, did not show a hematoma. The hematoma subsequently seen on a film 12 hours later (June 16, 2005), was after the patient had been placed in the chair by the third shift nurse.
The jury returned a verdict that the plaintiff hospital was 100 percent liable for the $2.5 million settlement that was reached in the underlying medical negligence claim, and that the independent contractor nurse represented by Mr. Burtker and Mr. Strauss was zero percent liable.
It is interesting to note that the same set of attorneys that defended the hospital, and the first and third shift nurses in the underlying medical negligence case were the same attorneys that represented the hospital as plaintiff in the contribution action.
David Burtker and Allison Alban represented an emergency medicine physician in a two week trial in November, 2013 in Cook County, Chicago, Illinois. It was asserted that the patient, age 21, 20-1/7 weeks pregnant, and patient care technician working at the hospital in question was struck in the abdomen while assisting a patient and presented to the emergency department for assessment of abdominal trauma. The emergency department physician ordered a pelvic and obstetrical ultrasound for evaluation of abdominal trauma, and contacted the co-defendant on-call obstetrician for consultation. The obstetrical ultrasound was interpreted, off-site, and a report was returned showing no evidence of placental abruption, but an open internal os. By protocol by gestational age, the patient was sent to labor and delivery for fetal surveillance from the emergency department. On transfer, there was a dispute as to whether or not the radiological interpretation of open internal os was communicated between the emergency and labor and delivery departments, and directly between physicians. The co-defendant obstetrician denied ever receiving that information, and after 30 minutes of reassuring fetal surveillance, ordered the patient discharged via telephone. The patient, the following day, continued to complain of abdominal cramping, wherein she was admitted to a different hospital institution, found to have an open internal os, and delivered a child two days later who died of extreme prematurity. It was the allegation of the patient that if the open internal os had been recognized as a complication of pregnancy by any healthcare provider, that cerclage could have been instituted and the pregnancy held to 24 weeks/survivability. The jury returned a not guilty verdict as to the co-defendant, and after three days of deliberation, split six-to-six on the issue of liability as to the emergency department physician/group.
David Burtker and Allison Alban successfully defended an emergency room physician in a four-week trial in October, 2013 in Cook County, Chicago, Illinois. The emergency department physician, together with his fellow partner, a co-defendant, as well as the emergency room group, attended to a 38-year-old male who presented with signs of a viral/influenza illness. Upon discharging the patient from the emergency department by the co-defendant, absent receipt of a urinalysis test, the patient returned to an affiliated hospital 48 hours later appearing septic, eventually requiring ventilatory management, suffering four cardiac arrests, and died within 12 hours of admission. The patient left a minor son and a paraplegic spouse. On autopsy, it was found that the patient’s cause of death was secondary to Group-A betahemolytic streptococcus toxic shock syndrome, with bacteria found in blood and lung tissue. No focal site of infection could be located, including the throat, kidneys and bladder. It was the allegation of the estate that the defendants should have entertained and aggressively tested for a bacterial infection, failed to perform a rapid streptococcus test of the throat and admit the patient for further work-up of a differential diagnosis of strep pharyngitis.
All defendants asserted that the patient did have a viral illness on the initial presentation, and that the classic symptoms of a bacterial illness were present. Further, it was asserted that Centor Criteria endorsed by the CDC and American College of Physician, did not indicate that a bacterial etiology was present, nor need to be tested for based upon the absence of said criteria. Moreover, the defense asserted that the patient’s lab values were non-specific for kidney dysfunction and the urinalysis, if it had been secured, would not have changed, or overruled the initial assessment and treatment plan. Plaintiff’s counsel, from one of the preeminent law firms in the country, asked for $11.5 million from the jury. After seven hours of deliberation over two days, the jury entered a verdict in favor of Mr. Burtker and Ms. Alban’s client, and returned a liable verdict against the co-defendant in the amount of $1.5 million.
William Cunningham and Kathleen Cassata successfully defended two general surgeons and their practice group in a trial in October 2013 in DuPage County. The surgeons performed a low anterior colon resection on the then 56 year old female plaintiff at Edward Hospital on September 2, 2005 for stage III rectal cancer. Twelve days after surgery, the plaintiff developed a rectovaginal fistula and was referred to Rush University Medical Center for repair. A temporary ileostomy was placed while the plaintiff underwent radiation and chemotherapy. Then, in March 2006, an attempt was made by to repair the fistula. After it was determined that the repair did not work, the ileostomy was reversed and a colostomy was placed, which was presumed to be permanent. The plaintiff did not have any reoccurrence of cancer. The plaintiff contended the surgeons failed to protect or inspect the vagina leading to the injury. The defense contended that a rectovaginal fistula is a known complication that can happen in the best of hands and the defendant surgeons did everything required of them by the standard of care to protect and inspect the vagina to try and prevent this injury. Plaintiff’s expert literally wrote the book on surgical treatment of this condition. However, we retained one of the most premier colon and rectal surgeons as an expert defending the doctors’ care. Further, the defense pathologist refuted claims that vaginal tissue was found in he distal “donut” retrieved from the surgical instrument following surgery. Plaintiff asked for $3.5 million from the jury. A verdict was entered in favor of all of the defendants.
Cunningham Meyer & Vedrine is proud to announce that Chicago partner and shareholder Marni Slavick has been named to the 2013 Class of The Top 40 Attorneys Under 40 to Watch for the state of Illinois. Click here to view the article
Scott A. Herbert and Alex M. Turner successfully defended a company specializing in the performance of physical exams and blood draws for perspective employers against a lawsuit for medical malpractice. In that case, the plaintiff alleged that the standard of care required his client to be positioned in a reclined or supine position during a blood draw performed by the defendant as a prerequisite for employment with the Chicago Fire Department. Plaintiff contended that prior to the draw, he had informed the medical assistant tending to him that he had previously fainted while donating blood and that therefore, additional steps to safeguard his wellbeing were required. During the blood draw in question, the medical assistant noticed that plaintiff appeared faint. She then stopped the draw, stepped in front of him and attempted to prevent him from falling by placing her hands against his chest. Ultimately, plaintiff fell forward and struck his face on the floor resulting in a fractured nose and deviated septum. As a result, plaintiff required a septoplasty and closed reduction. For their part, the defense maintained that plaintiff had failed to notify the attending medical assistant that he had a history of prior fainting episodes while having his blood drawn. Absent notice, it was within the standard of care to perform the blood draw with the patient seated upright using a normal chair. The jury agreed and returned a defense verdict after deliberating for approximately 2½ hours.
David Burtker and Kipp Cornell were engaged on trial wherein the plaintiff, a 38-year-old surgical first assistant at Rush Medical Center, found a one cm. lump in her right breast in May, 2006. She presented to the Defendant, her obstetrician, on July 25, 2006, who allegedly told her that the lump was “fibrosis” and not a tumor. No diagnostic studies were ordered. The patient returned one year later, on July 19, 2007, complaining again of the lump, which purportedly was harder and larger. Plaintiff had been hospitalized in May, 2007 for gastritis without complaints of a breast mass. The Defendant ordered a mammogram and a 6cm x 4cm mass was identified. After needle biopsy confirmation, the patient underwent a lumpectomy on September 26, 2007 at Westlake Community Hospital. Thereafter, she has undergone chemotherapy and radiation therapy, and continues on Tamoxifen therapy today. Plaintiff alleged that the Defendant failed to assess, document and investigate the complaints of a right breast mass in June, 2006. As a consequence of a one-year delay in work-up and diagnosis, it was the Plaintiff’s assertion that she incurred a 20 percent increased risk of future recurrence versus a one-year earlier diagnosis. Plaintiff supported her allegations that she reported the breast mass to the Defendant by the history given to her original medical oncologist at Gottlieb Hospital on 10/07. The defense contended the Plaintiff did not have a palpable right breast mass in July, 2006, since the Defendant documented within her chart, “Breast; no masses bilaterally.” This documentation was corroborated by five subsequent treating physicians who charted the patient reported to each of them that the mass was first noted in January, 2007. The jury returned a not liable verdict within 4 hours.
William Cunningham and Scott A. Herbert successfully defended four neonatologists in a medical malpractice lawsuit in Cook County. The minor plaintiff was born at 26 weeks weighing 940 grams. On day 15 of life, he was diagnosed with E. Coli Sepsis. Due to complications related to sepsis, he eventually required a below the knee amputation of his right leg. Plaintiff alleged that the minor developed sepsis and blood clots in his right leg because an umbilical artery catheter was kept in for 13 days and that it should have been removed after 5 days. Plaintiff also alleged that the Defendants failed to timely recognize and treat sepsis. Plaintiff further claimed that the sepsis contributed to the minor’s brain injury and that he would need 24/7 care for the rest of his life. Plaintiffs asked the jury to award between $27,000,000 and $37,000,000. The defense contended that due to the minor’s worsening lung condition and a PDA that was not closing with medication, it was necessary to keep the umbilical artery catheter in place. Further, that the child’s sepsis was unrelated to the catheter and was timely diagnosed and treated. In addition, that any brain injury the minor had was due to prematurity and the fact that he needed resuscitation at birth. After a three week trial, the jury returned a verdict in favor of all defendants after deliberating for approximately 4.5 hours.
Kevin Vedrine and Christopher Solfa successfully defended a hospital and a physician in a medical negligence lawsuit in Grundy County. Plaintiff alleged that the hospital and the physician were negligent in the care and treatment of the plaintiff, in that they allegedly failed to diagnose and treat a pulmonary embolism. The defendants maintained that the plaintiff’s condition was appropriately worked up, treated, diagnosed and cared for. Plaintiff requested that the jury award $5.25 million. The jury returned a not guilty verdict in 34 minutes.
Marni Slavick and Kipp Cornell defended an Internal Medicine physician and her private practice clinic in a medical negligence case in Cook County, Illinois. The defendant-internist provided care to the plaintiff-decedent following a motor vehicle accident wherein the plaintiff-decedent sustained a subdural hematoma. The plaintiff alleged that the defendant-physician provided negligent outpatient care and this allowed for an undiagnosed expansion of the subdural hematoma. The plaintiff-decedent died one month after initial diagnosis. The plaintiff alleged that the death was a result of the undermanaged subdural hematoma. Co-defendants included a radiology physician and a hospital facility. Plaintiff requested over $4.5 million and after 3 hours of deliberation the jury found in favor of all Defendants.
David Burtker and Sarah Rodak represented an obstetrician/gynecologist in a medical legal litigation matter tried in the Circuit Court of Cook County, Chicago, Illinois, over a two week period of time. Plaintiff alleged that four days post hysterectomy surgery she presented to the defendant’s office for follow up, wherein a medical assistant, without a specific order from the obstetrician, removed surgical skin staples. It is alleged that upon the removal of the surgical skin staples, the skin, but not the fascia, opened for approximately 25% of the incision line. The defendant upon being notified of this fact simply packed the area, and used surgical strips to close same. The patient was sent home at that time. Two days later, the patient experienced an acute abruption of the entire suture line, together with the fascia, resulting in a re-admission to the hospital for a one week wound care treatment. The patient was transferred thereafter to a wound care facility for approximately two weeks. It was at that time that the patient developed an infection in the wound wherein it necessitated re-admission to the hospital, exploration and further surgical procedures. It was the defense of the defendant that removal of surgical skin staples four days postop was within the standard of care, and that the medical assistant had been trained, and was competent, to perform same on that date and in that specific manner. Moreover, a small percentage of skin opening after removal of the skin staples is not an unforeseeable event. Lastly, it was a defense at trial that there was a failure to appropriately and timely administer antibiotics by the wound care specialist, which was an intervening proximate cause, of the patient’s development of the infection and subsequent disability. After three days of jury deliberation, the jury remained deadlocked and a mistrial was ordered by the court.
Mike Slovis and Marni Slavick successfully defended a Chicago hospital and an OB/GYN in a medical malpractice case in Cook County, Illinois. The plaintiff-patient alleged that the OB/GYN had removed her cervix during a total abdominal hysterectomy when she had only contemplated that this would include the removal of her uterus and right ovary. The case went before a jury on one count of Medical Battery due to the unwanted “touching” or removal of the patient’s cervix. The plaintiff requested damages including loss of consortium and loss of sexual enjoyment. The defense denied all aspects of liability, causation and damages. The jury deliberated for less than 45 minutes and returned a verdict in favor of the OB/GYN physician and the hospital.
Robert Larsen and Kathleen Vece successfully defended a pathologist in a case in Kane County in November 2012. The plaintiff, a 63 year old woman who had a history of cancer in her right breast on two occasions went in for another biopsy of her right breast tissue in May 2007. The defendant pathologist was asked to do an intraoperative read of a frozen section of the tissue. The pathologist read the biopsy as having clean margins and being positive for adenocarcinoma. As a result of the read, based on a prior agreement with the patient that if the biopsy came back positive the breast would be removed, the surgeon performed a mastectomy. It was later determined that the biopsy was not, in fact, cancer. The defendant contended at trial that the plaintiff was at substantial risk for recurrent cancer in her right breast and this was told to plaintiff repeatedly by her oncologist. The defendant also argued that the read was reasonable and within the standard of care under the circumstances. Plaintiff’s expert did not show the jury any of the slides at issue, while the defendant and the defendant’s expert each went through each slide with the jury to explain why this was a difficult read. Further the defendant argued that if anyone were to blame in this case it was the surgeon who requested the intraoperative frozen section and failed to communicate the limitations of such a read to the plaintiff. At trial the plaintiff’s attorney asked for $1.1 million dollars for pain and suffering, disfigurement and loss of normal life. The jury was out for less than one hour and came back with a not guilty verdict.
David Burtker and Peter Strauss represented a vascular surgeon in a medical negligence litigation matter that was tried over a period of four weeks in the Circuit Court of Cook County, Chicago, Illinois. In this case, the patient, age 61, underwent a femoral popliteal bypass procedure on her right thigh for severe peripheral vascular disease. Three days later she complained of the absence of any motor strength in her lower extremities, and on physical examination was found not to be able to voluntarily move her legs. The defendant, as well as the family practice physician, who was named as a defendant, and the anesthesiologist, who was not a named defendant, entered orders for STAT radiographic studies and a neurology and neurosurgical consultations. At this time, this hospital did not have neurosurgery service on staff. As a consequence, there was a telephone consultation with a neurosurgeon on staff at a local tertiary care institution, who was provided information regarding the findings on the MRI report, as well as the patient’s clinical status. During that telephone consultation the neurosurgeon purportedly told the chief resident that the patient was “not a surgical candidate.” The same neurosurgeon was contacted the day after by the co-defendant family practice physician, who again confirmed that the patient’s paraparetic condition was not a surgical option. Twelve days later the patient was transferred to that same tertiary care institution, and came under the care of the consulting neurosurgeon. At that time there was a finding of blood through five levels of the thecal sac. Despite surgical intervention, the patient remained paralyzed from the waist down, and due to pre-existing conditions of hypertension, diabetes and COPD, was hospitalized at numerous institutions for extensive periods of time thereafter, resulting in documented medical and hospital specials of 2 million dollars. The plaintiff prior to trial underwent an above-the-knee amputation of the left leg in 2011 and above-the-knee amputation of the right leg in 2010. It was the defense of the vascular surgeon that a neurosurgical consultation was secured via telephone with the neurosurgeon, on two different occasions, with specific information and radiological findings. The neurosurgeon basically denied ever having such a “consultation” and further denied ever giving any type of “curbside opinions.” Plaintiff’s counsel asked the jury to return a verdict in the amount of $21 million. While the telephonic neurosurgical consultations continued to be in dispute, at closing all defense parties set forth that the original MRI findings did not report the extensive area of blood within the thecal space and thus, all physicians had been given improper diagnostic and radiographic information. After two days of deliberation, Mr. Burtker’s client, the vascular surgeon, as well as all other defense parties, were found not liable by the jury.
Robert Larsen and Kathleen Vece successfully defended an obstetrician and gynecologist in a case in Winnebago County in August 2012. The case alleged medical negligence against the defendant OB/GYN for failing to perform a prophylactic cerclage on a woman who had never been pregnant, but had a history of two LEEP procedures and one cone biopsy taken of her cervix. The plaintiff alleged that as a result of the defendant doctor’s failure to do the prophylactic cerclage the woman developed an incompetent cervix and lost her baby at 22 weeks. The defense argued that a 22 week fetus is not viable and, thus, there was survival claim. The defense also argued that it was not the standard of care to do a prophylactic cerclage on a primiparous patient. Just before trial, the emergency room doctor that saw the patient just as she started to bleed diagnosed her with a miscarriage and sent her home was dismissed on a motion for summary judgment, because the plaintiff did not retain an emergency medicine expert. Therefore, the defense utilized an empty chair defense at trial and pointed to the emergency room doctor as the last and best person to evaluate the patient and perform an emergency cerclage. The defense also argued that plaintiff’s expert’s theory that the cervix should have been measured every two weeks, even if had been done, would not have lead to the discovery of a cervix shortened enough to warrant a cerclage. The plaintiff’s attorney asked for $1.1 Million dollars for wrongful death of the baby. The jury was out for approximately two hours and returned a verdict of not guilty.
William Cunningham and Scott Herbert successfully defended an obstetrician in a medical malpractice lawsuit in DuPage County. The plaintiffs alleged that the defendant OB was professionally negligent for not performing a C-section when the fetal monitor strips showed evidence of fetal distress. In addition, the mother had a previous delivery complicated by shoulder dystocia. During the vaginal delivery, the defendant OB encountered a shoulder dystocia that required the use of multiple maneuvers to relieve it. Due to the prolonged dystocia, the newborn required extensive resuscitation after delivery. Plaintiffs alleged that as a result of the vaginal delivery, the minor sustained a permanent brachial plexus injury and a hypoxic brain injury that would require her to have specialized care for the rest of her life. The defense contended that there was nothing on the fetal monitor strips that required the defendant OB to abandon a vaginal trial of labor and proceed with a C-section. Further, that the plaintiff had an inherited learning disorder and did not have a hypoxic brain injury, as no imaging studies ever showed evidence of a brain injury. The Plaintiffs asked the jury to award $6,500,000 to $9,800,000.
William Cunningham and Scott Herbert successfully defended a general surgeon in a medical malpractice lawsuit in DuPage County. The plaintiff alleged that the defendant surgeon used an improper technique during a hernia repair surgery resulting in the development of an abdominal hematoma due to an injury to an artery. Following the development of the hematoma, plaintiff went into renal failure and required multiple hospitalizations. The defense contended that the hematoma was unrelated to the technique used by the surgeon and that it was due to a pre-existing bleeding disorder. After a two week trial, the jury only deliberated 1.5 hours before returning a verdict in favor of the defendant surgeon.
Kevin Vedrine and Christopher Solfa successfully defended two cardiologists in connection with a medical malpractice lawsuit filed in Kane County, Illinois. The plaintiff maintained that the decedent, a Jehovah’s Witness, suffered an “unequivocal spasm,” rather than an acute myocardial infarction. It was the theory of the plaintiff that the decedent most probably had coronary spasm triggered by a focal atherosclerotic lesion that had plaque rupture. To that end, it was the theory of the plaintiff that the procedures performed by the defendant cardiologists were not indicated and ultimately caused the death of the decedent. The defendants maintained that all of their care and treatment fell within the applicable standard of care, that coronary dissection was a very likely cause for the decedent’s presentation, and that it was within the standard of care to perform a balloon angioplasty with stent deployment. In closing argument, plaintiff’s counsel requested the jury award $5 million. The jury deliberated for less than one hour before returning a not guilty verdict.
David Burtker and Kenneth Seale represented an obstetrician in the Circuit Court of Kankakee County, Kankakee, Illinois, in a medical legal litigation matter spanning four weeks. This was a wrongful death claim brought on behalf of a 22 year old woman, who was 12 weeks pregnant, when presenting to a hospital with complaints of abdominal pain. The patient, who had sickle cell disease, was admitted under the care of a family practice physician, as well as under the care of the defendant obstetrician. Within approximately 24 hours, the patient developed deteriorating respiratory status leading to a diagnosis of acute chest syndrome. On contacting a tertiary care institution for transport of the patient, the patient’s respiratory status deteriorated to the point of respiratory arrest, cardiac arrest, and death. The Complaint was filed against the defendant under the Illinois Perinatal Health Care Code relative to issues of perinatal transport dependent upon the patient’s hemoglobinopathy status. Further, issues of whether an exchange transfusion, versus a simple transfusion that was performed prior to death, would have been life saving, were also contested during the course of the trial. Lastly, it was a defense of the obstetrician that the patient’s medical conditions, sickle cell crisis/acute chest syndrome, did not alter the usual obstetrical management of the patient, and thus was under the jurisdiction and management of the primary attending physician. Plaintiff’s counsel after four weeks of trial asked the jury to return a verdict in the amount of $7.8 million. This would have been a record verdict in a medical negligence case pending in the Circuit Court of Kankakee County. No offer was ever made during the pendency of this case. After six hours of deliberation, the jury returned a verdict in favor of the defendant obstetrician.
Robert Larsen and Kathleen Vece successfully defended an OB/GYN in Rockford, Winnebago County, Illinois. The defendant doctor delivered two of the plaintiff’s three children, in 2001 and 2006. At the time of the 2001 delivery the plaintiff advised the defendant doctor that she had a severe allergy to adhesive tape. Therefore, proper precautions were taken following the cesarian delivery to prevent an allergic reaction. In 2006, the defendant alleged that the plaintiff failed to advise him of her allergy again even though she had been asked on many occasions if she had any allergies. The plaintiff contended she did remind the doctor of her allergy in 2006 and also contended that the standard of care required the doctor to review his entire chart from the 2001 delivery for any allergies. Following the 2006 cesarean delivery, the defendant used adhesive tape over the incision, which caused the plaintiff to have a severe reaction of red, blistery skin. At trial, plaintiff contended her injuries were permanent and showed current photographs to the jury that revealed a faint hyperpigmentation around the area of the reaction. The defendant disputed the extent and permanency of the injury and also argued that the plaintiff had an independent duty to inform the doctor of her allergy in 2006. The defense demonstrated through other medical records that the plaintiff had failed in the past to inform other physicians of her tape allergy. The defense also called the nurse who admitted the plaintiff into the hospital for her 2006 delivery and presented testimony that refuted the plaintiff’s claim that she told the nurse prior to the surgery of the allergy. Further, since the hospital had settled prior to the trial, the defendant utilized an empty-chair defense and argued that the nurses had their own duty to inform the doctor of any allergies and were, therefore, the sole proximate cause of the plaintiff’s injury. The jury returned a verdict of not guilty in favor of the defendant.
Kevin Vedrine and Christopher Solfa successfully defended a physician in a medical negligence lawsuit in Grundy County, Illinois. Plaintiffs contended that the defendant anesthesiologist negligently treated the decedent, resulting in Fentanyl intoxication and death. The defense maintained that all of the care and treatment provided by the defendant anesthesiologist fell within the applicable standard of care, that the decedent’s clinical course was not in any way consistent with Fentanyl intoxication, and that the use of a heating source in this particular case (a forced air warming blanket) was not a proximate cause of the decedent’s death. Rather, it was the defendant’s position that the cause of death of the decedent was as a result of her underlying respiratory condition as opposed to any effect of increased Fentanyl uptake from the use of a forced air heating device. It was the position of the defense that the most likely source of the decedent’s death was severe advanced chronic obstructive pulmonary disease. Plaintiff’s counsel asked the jury to award $2.4 million. The jury deliberated for approximately four hours before returning a not guilty verdict.
Cunningham Meyer & Vedrine partners moderate panels at CBA Medical Litigation Summit 2011
Along with other leaders in the medical malpractice arena, CMV partners William F. Cunningham and Michael R. Slovis participated as moderators in the three-day educational program in Napa, California, September 11 -14, 2011. Bringing together insurers, judges, plaintiff counsel and defense attorneys at one summit conference under the mantle of the Chicago Bar Association, topics were timely and practical in their application to all attendees. William F. Cunningham was moderator a panel on Avoiding Expert Witness Traps at Trial. With both plaintiff and defense attorneys from notable Chicago firms and the Honorable Thomas Hogan as panelists, Mr. Cunningham had an opportunity to preside over a lively exchange of techniques and experiences. Michael R. Slovis moderated a panel on Handling the Effects of Popular Media and Social Media on a Jury. With Facebook, Twitter and other electronic media in the legal news daily, Mr. Slovis presided over a distinguished five person panel that includes a representative from the State’s Attorney’s Office and the Honorable Clare McWilliams along with a social media researcher and plaintiff and defense counsel. The sharing of ideas from five different facets of the topic was revealing to all.
Scott Herbert and Sarah Rodak successfully defended a hospital in a medical negligence lawsuit in Cook County. Plaintiff alleged that the hospital, through its nursing staff, was negligent in the care of her sacral pressure ulcer, allowing it to increase in size leading to pain and permanent disfigurement. After the plaintiff rested, the Judge granted a directed verdict in favor of the hospital.
William F. Cunningham spoke at ACI 10th Annual Advanced Forum on Obstetric Malpractice at the Union League in Philadelphia presented by the American Conference Institute Click for complete article
Mark Meyer and Michael Compton successfully defended a general surgeon and hospital in a medical negligence lawsuit in Lee County, Illinois. Plaintiff alleged that his wife’s death was a result of peritonitis and could have been avoided had a CT of the abdomen been performed following complaints of post-operative pain from a recent laparoscopic cholecystectomy. The defense presented evidence that the patient was thoroughly examined post-operatively and a CT was not necessary. The defense further contended there was no evidence of peritonitis on the post-mortem examination. The Plaintiff asked for $1.25 million dollars, after approximately 2 hours of deliberation the jury returned a verdict in favor of the defendants.
William Cunningham and Kathleen Vece successfully defended a general surgeon in a case in Kane County. The case involved a middle-aged woman who had a laproscopic hernia repair surgery in August 2004 after having undergone several prior abdominal surgeries. The hernia surgery required extensive lysis, or cutting, of adhesions. After the surgery, the plaintiff remained in the hospital. On the third post-operative day, CMV’s client and a partner of the initial surgeon took over the care of the plaintiff. Based on a few abnormal, but not alarming symptoms, he ordered labs, a CT scan of the abdomen and pelvis, a CT scan of the chest and a Doppler Ultrasound of the legs. The CT revealed no evidence of a bowel leak. The labs were unremarkable. The Doppler showed no DVT and the CT scan of the chest showed no evidence of pulmonary embolism. Two days after that, five days post-operatively, the defendant doctor ordered another CT scan of the abdomen, which revealed a definite leak in the bowel. The doctor immediately took the patient to surgery, watched her and performed several other surgeries over the next few weeks and eventually transferred her to Loyola University Medical Center for wound closure. It was argued at trial that the doctor’s persistence and good surgical judgment saved the plaintiff’s life. At trial, the plaintiff alleged the initial surgeon, also a defendant, caused a tear in the bowel that was half the circumference of the intestine. It was also alleged that the other follow-up physician, CMV’s client, was responsible for a two day delay in the diagnosis. There was a joint defense presented. By utilizing an I-Pad, the defense was able to show the CT scans from August 20th and August 22nd and clearly display to the jury that there was no leak until August 22nd when the plaintiff was taken back to surgery. The plaintiff asked for approximately $2.0 million at trial. After less than an hour deliberating, the jury returned a verdict in favor of both defendants.
David Burtker and Marni Slavick successfully defended an anesthesiologist in a wrongful death claim against one of the preeminent plaintiff’s law firms in the State of Illinois. Plaintiff’s allegation was that the patient postoperatively was prematurely extubated, resulting in an immediate decrease of oxygen saturation, cardiac arrest and death. It was the plaintiff’s contention that there was no documentation of any extubation criteria noted by the defendant in any hospital record, and that the outcome was evidence of failing to secure, or failing to recognize that appropriate extubation criteria had not been met by the patient. After plaintiff’s attorney asked the jury to award an amount in the millions of dollars, the jury after 4 hours of deliberation returned a verdict in favor of the defendant anesthesiologist.
Robert Larsen and Kathleen Vece successfully defended an orthopedic surgeon in Cook County. The case involved a teenage girl born with bilateral club feet and in need of a final corrective surgery on her right foot called a mid-foot osteotomy. The Defendants were the orthopedic surgeon that performed the osteotomy and the podiatrist that performed toe tendon lengthening during the procedure. Three days post-operatively, the Plaintiff had some duskiness at the tips of her three middle toes. The Defendants addressed this issue by removing two of the toe pins, applying heating packs to the Plaintiff’s foot and casting the right foot for stabilization. The Plaintiff was discharged home and seen four days later for follow up. At that time, the duskiness had moved up the Plaintiff’s three toes and began appearing on her first big toe. She was transferred to Loyola University Medical Center, but eventually had her first four toes and part of the ball of her foot amputated. At trial the Plaintiff’s liability expert opined that the Defendant orthopedic surgeon should have removed the pins placed in the mid-foot, because the surgery had corrected a cavus deformity that was stretching the lateral plantar artery and restricting blood flow to the Plaintiff’s toes. Through cross-examination it was shown that the plaintiff did not, in fact, have a cavus deformity and there was, therefore, no stretching of the plantar artery. Further, the Plaintiff’s expert admitted that he had never seen or read about any case where the mid-foot pins had been removed in a situation similar to this and the circulation to the toes was restored. The Plaintiff asked for approximately 3.8 million dollars in damages. The jury deliberated for approximately one hour before returning a verdict for the Defendants.
Mark Meyer and Michael Compton successfully defended a hospital and one of its nurses in a medical negligence lawsuit in Winnebago County, Illinois. Plaintiffs alleged that their child’s birth injuries and death were a result of a failure to timely diagnose an evolving placental abruption. After a two week trial, the jury deliberated for four hours before returning a verdict in favor of the Hospital, Nurse, and attending Obstetrician. The plaintiff asked for $6,750,000.
Michael Slovis and Kipp Cornell successfully defended an orthopedic surgeon in a three week trial in Markham, IL. Plaintiff alleged that the surgeon was negligent for failing to assess the diabetic patient’s perfusion issue which led to an inadequate amputation and revision of the foot. Plaintiff asked for in excess of $3 million at the close of the evidence.
Bill Cunningham and Barbara Prohaska obtained summary judgment and final dismissal of a sixteen count complaint on behalf of its clients that included a local Hospital, its CEO, and several individual members of its Medical Executive Committee. The sixteen count complaint was premised upon corporate liability and sought a declaratory judgment and monetary damages premised upon allegations of breach of contract, tortious interference of contract, interference with prospective economic advantage, negligence, libel, slander, defamation, and false light invasion of privacy, among others. The defenses raised by the Defendants based on the Health Care Quality Improvement Act, the Illinois Hospital Licensing Act, and Illinois statutes served as a basis for the Court’s ruling in favor of Defendants. CMV partners Bill Cunningham and Barbara Prohaska represent the Defendants in the pending appeal taken by the plaintiff.
Mark Meyer and Michael Compton successfully defended a family practitioner and his practice in a medical negligence lawsuit in DuPage County, Illinois. In February of 2006, plaintiff (age 37) developed a ganglion cyst on her right wrist. After discussing several treatment methods, Plaintiff elected to have the cyst aspirated followed by injection of a steroid. Approximately 30 minutes later Plaintiff developed numbness, followed by pain, in and around the hand, as well as a loss of color. Plaintiff was seen in the Emergency Room and evaluated by a hand surgeon and then had an angiogram performed, Plaintiff had developed severe clotting in the right hand and wrist. Plaintiff alleged that in addition to losing strength in her hand she experiences chronic pain, tingling in her fingers and cold sensitivity as a result of the complication. The treating physicians and Plaintiff’s retained experts opined that the physician injured the radial artery with the needle while performing the procedure. Additionally, Plaintiff’s internal medicine expert testified that it was a deviation from the standard of care for a family practitioner to perform a procedure of this nature. The defense of the case was complicated by that fact that treating physicians testified that the radial artery had been pierced by the needle. The defense presented an expert vascular surgeon, from Northwestern University who opined that the radial artery had not been pierced by the needle and that the injuries were due to vasospasm as a reaction to the steroid that was injected near the artery. Additionally, the defense presented an expert in family medicine who testified that this procedure was within the skill and training of a family practitioner and it was within the standard of care to perform such a procedure. After an eight day trial, the jury deliberated for seven hours before returning a verdict in favor of the defendant physician and his practice.
William Cunningham and Scott Herbert successfully defended two Obstetrician/Gynecologists and their practice in a medical negligence lawsuit in DuPage County, Illinois. In August of 2004, plaintiff, then age 30, delivered her third child. 12 days later, she began having heavy vaginal bleeding and was sent to the ER where she was evaluated by one of the Defendants. Based on his examination, as well as the results of an ultrasound, he thought that plaintiff’s post partum hemorrhage was likely due to retained products of conception (pieces of placental tissue still attached to the uterine wall). Therefore, he took her to the operating room for a suction dilatation and curettage (D&C). In addition, he treated her with two different medications that help the uterus contract in an effort to stop the bleeding. When the D&C and medications did not stop or slow the bleeding, he asked his senior partner for a second opinion. Both Defendants then performed exploratory surgery in an effort to identify the source of the bleeding. However, they found that there was not one source and that the bleeding in the uterus was diffuse. Based on the amount of blood plaintiff had already lost, approximately one third to one half of total blood volume, and the rate at which she was bleeding, the Defendants performed a total abdominal hysterectomy to stop the bleeding. Plaintiff alleged that in addition to being unable to have any more children, as a result of the hysterectomy, she experiences severe pelvic pain on a daily basis. Based on her complaints of pain, she was seen at the Mayo Clinic where she had surgery to remove scar tissue. The defense of the case was complicated by the fact that a subsequent treating Ob/Gyn from a prominent University Hospital in Chicago, who regularly appears in the media and on shows like Oprah Winfrey, testified that both Defendants deviated from the standard of care by not try other methods to save the uterus before performing a hysterectomy including, other medications, a uterine artery embolization, uterine packing, compression sutures or a uterine artery ligation and that any of these methods likely would have avoided the need to perform the hysterectomy. Her testimony and criticisms were almost identical to those of Plaintiff’s retained expert, an Ob/Gyn from Manhattan. Further, both experts opined that plaintiff’s chronic pelvic pain was likely due to scar tissue from the hysterectomy. The defense presented two experts, an Ob/Gyn from a University Hospital in Chicago, who opined that the Defendants acted appropriately in performing the hysterectomy when they did, as they saved the plaintiff’s life and an anesthesiologist, who testified that the plaintiff’s blood loss was significant and that she was at risk for going into shock or DIC when the hysterectomy was performed. After a two week trial, the jury deliberated for less than four hours before returning a verdict in favor of the Ob/Gyns and their practice. The plaintiff asked for $3,500,000.
Robert Larsen and Kathleen Vece defended an internal medicine physician in Cook County and successfully limited his exposure to within his policy limits and drastically lower than the plaintiff’s demand. The plaintiff demanded the policy limits of both individual doctors sued, which totalled $3 million dollars. The defendants were represented by the same insurance company, and a combined total of $1.5 million was offered on their behalf to settle, with an indication of up to $2 million. The plaintiff declined the defendants’ offer. The case was tried with less than ideal circumstances as the two doctors simply had conflicting recollections as to pertinent conversations. A united causation defense was presented by the defendants at trial effectively lowering the cost of the case, which involved the death of a 48 year old man. Nevertheless, the verdict came in against both doctors. The verdict against both doctors was $1,259,050, with $759,050 awarded for pecuniary damages and $500,000 awarded for loss of society to the surviving spouse. In his closing, plaintiff’s counsel asked for an award of $7 million for loss of society. Prior to the trial the defendant hospital settled out of the case for $650,000 creating an offset for the individual doctors. Therefore, after trying to settle the case for up to $2 million dollars and being refused, the defense was able to substantially reduce the exposure to only half of the $609,050.00 collectable verdict.
William Cunningham and Beth Szerlong successfully defended two pathologists in a medical negligence lawsuit in DuPage County, Illinois. The care and treatment at issue took place in July of 1999. The Plaintiff presented with a three month history of a non-healing tongue ulcer. She also had a history of smoking a pack per day for approximately 25 years. Her physician subsequently performed an excisional biopsy and one of the defendant pathologists interpreted a frozen section of the ulcer intraoperatively. After reviewing the frozen section the Defendant advised the physician that the diagnosis favored squamous cell carcinoma. However, after the biopsy was completed, the Defendant reviewed the complete sample that was submitted and found no evidence of cancer. He then had his colleague review the slides as a second opinion. Both pathologists agreed that there was evidence of squamous cell carcinoma on the frozen section slides and, therefore, they rendered a diagnosis of squamous cell carcinoma. Following this diagnosis, Plaintiff underwent radiation therapy and experienced side effects from that treatment. After the radiation therapy, one of the Plaintiff’s treating physicians sent out the pathology slides from the biopsy, for review by his own pathologist, at a local university hospital. That pathologist disagreed with the diagnosis of cancer made by the Defendants. The specimens were then sent to a specialist in oral pathology of the tongue, who also disagreed with the diagnosis of cancer. Plaintiff contented that due to the Defendants’ professional negligence, she underwent debilitating radiation therapy that left her with permanent injuries to her ability to taste, swallow and eat normally. In addition, she claimed a variety of other physical and psychological injuries. The Defense argued that the review and interpretation of the pathology slides by the Defendants was reasonable and that proper procedure was followed. Additionally, the defense contended that the diagnosis of cancer was the correct diagnosis. After a two week trial, the jury deliberated for approximately five hours before returning a verdict in favor of the defendant pathologists.
William Cunningham and Scott Herbert successfully defended two general surgeons in a wrongful death medical negligence lawsuit in DuPage County, Illinois. The care and treatment at issue took place in July of 1999. Plaintiff’s decedent was a 38 year old woman with a rare disease, Zollinger Ellison Syndrome, that caused ulcers in her dudodenum. After one of the ulcers healed, it caused a stricture in her small intestine that needed to be corrected surgically. Five days after the corrective surgery was performed by the defendant surgeons, Plaintiff’s decedent died from a massive pulmonary embolism (PE). Plaintiff’s expert testified that the PE was from a deep vein thrombosis (DVT) that broke off from the deep veins in one of her legs and traveled to her lungs. The surgeons ordered that SCDs (sequential compression device) and TED hose be used for 5 days post-operatively in order to prevent a DVT. They did not order anticoagulation medication, such as heparin, as it was contraindicated due to the fact that Plaintiff’s decedent had an epidural for post-operative pain management, as well as her history of ulcerative disease. Two days after surgery, a former partner of the defendant surgeons ordered that the SCDs should be discontinued. Although one of the defendant surgeons testified that he gave a verbal order to a nurse to follow his original order instead, no such verbal order was ever recorded in the chart. In addition, even though the surgeons had ordered that they wanted the patient to ambulate four times a day, the nurses’ charting showed that she was unable to ambulate at certain times post-operatively because her legs were numb from the epidural. Plaintiff’s expert, a pulmonologist and critical care specialist, opined that the surgeons were negligent for failing to write an order to keep the SCDs on after their partner discontinued them and for failing to have the epidural removed and start the patient on heparin on post-operative day two when she was having trouble ambulating. The defense presented three experts, a local general surgeon, an anesthesiologist/pain specialist and an OB/Gyn from the University of North Carolina, who has written extensively on the use of DVT prophylaxis, all of whom opined that the care and treatment was appropriate and within the standard of care and that whether to remove an epidural is a decision that is ultimately made by the pain specialists not the general surgeons. After a two week trial, the jury deliberated for four and a half hours before returning a verdict in favor of the defendant surgeons, as well as the co-defendant gastroenterologist.
Kevin Vedrine and Kathleen Vece successfully defended an otolaryngologist in a medical malpractice case in Grundy County, Illinois. The defendant otolaryngologist physician excised a cyst, called a mucocele, from the plaintiff’s lower left lip after the plaintiff complained about the cyst getting in the way when he would eat. Afterwards, the plaintiff made complaints that the lower left side of his lip, where the cyst was removed, sagged and liquids would escape from the corner of his mouth when he drank. The defendant recommended another surgery to repair the problem, but the plaintiff decided to see a different otolaryngologist and have a different procedure. After the second surgery the plaintiff still claimed to have a sag in his lower left lip, problems with drooling, numbness and pain. The plaintiff contended that the defendant took out too much tissue from the plaintiff’s lip during the first surgery. The defense refuted that too much tissue was taken out and contended that the deficits the plaintiff complained of were a natural and probable consequence of having a large mucocele removed. The trial lasted four days and resulted in a not guilty verdict. No offer was made on behalf of the defendant. At trial the plaintiff’s counsel requested $357,000.
Michael Slovis and Marni Slavick successfully defended an orthopedic hand surgeon in a medical negligence lawsuit in DuPage County. The Defendant surgeon provided care to the plaintiff after the plaintiff suffered a fracture of the scaphoid bone. Plaintiff alleged that the hand surgeon failed to immobilize the wrist post-operatively, failed to promptly recognize signs of a post-operative infection and failed to properly treat the post-operative complications; plaintiff alleged that this led to progression of an underlying bone infection. The defense contended that all of the care provided by the orthopedic surgeon was proper and that there was never a post-operative infection based on the negative cultures obtained once the wrist was re-explored six months after the surgery at issue. Moreover, the defense contended that the plaintiff simply suffered from tenosynovitis, a condition which the hand surgeon promptly diagnosed and properly treated throughout the post-operative period. The trial, which lasted seven court days, resulted in a verdict in favor of the orthopedic hand surgeon. No offer was made on behalf of the Defendant. The jury deliberated for less than two hours before returning a verdict.
Kevin Vedrine and Christopher Solfa successfully defended an emergency medicine physician in a medical negligence lawsuit in Grundy County, Illinois. The Defendant emergency medicine physician provided care to the plaintiff’s decedent for complaints of difficulty in breathing and pain upon inhalation. Plaintiff alleged that, due to the complaints of the decedent, the emergency medicine physician was negligent for failing to order a BMP, a CBC, for failing to perform an EKG and failing to follow a hospital policy as it relates to chest pain protocol. The plaintiff’s decedent passed away as a result of a myocardial infarction eight days later. The defense contended that at the time the plaintiff’s decedent was seen by the Defendant physician, his symptoms were not cardiac in origin and, instead, were pleuritic in nature. The pathologist who performed the autopsy testified that the myocardial infarction, that caused the plaintiff’s decedent’s death, occurred 24 to 72 hours prior to the decedent’s passing. The trial, which lasted six court days, resulted in a not guilty verdict. No offer was made on behalf of the emergency medicine physician. Plaintiff’s counsel requested an award of $1.2 million.
William Cunningham and Bethann Szerlong successfully defended a cardiologist in a medical negligence lawsuit in Kane County Illinois. The defendant cardiologist provided care to the plaintiff for complaints of chest pain after a referral from her primary care practitioner. Plaintiff alleged that due to her history of chest pain he was negligent in failing to evaluate her history, failing to perform an EKG and failing to admit the plaintiff for angiography. The plaintiff passed away as a result of a cardiac related condition 22 months later. The defense was supported by experts from Houston in cardiac imaging and cardiac pathology. The defense theory was that at the time she was seen by our cardiologist, her symptoms were not cardiac in origin based on a negative myoview image study and that the scars found in her heart tissue at autopsy were not present 22 months earlier when seen by our client. There were three other defendants. All were found not guilty as well. Our cardiologist was generally regarded as the target. The plaintiff had been offered close to $1 million to settle but would not give a demand. The trial, which lasted four weeks, resulted in a verdict in favor of all defendants. Plaintiff’s counsel requested an award of $10 million.
David Burtker and Peter Strauss secured a defense verdict in a obstetrical medical negligence matter heard in Cook County, Illinois involving the death of a 33 day old neonate born at 25 weeks gestation. Plaintiff alleged that during a routine office visit, she advised the Defendant obstetrician that she was having contractions and that the Defendant took no action to confirm whether the contractions were true labor. Instead, plaintiff was advised she was having Braxton Hicks contractions. The Defendant denied that the plaintiff ever complained of contractions during the office visit. The Plaintiff gave birth via caesarian section the morning after the office visit. The trial, which lasted 8 days, resulted in a verdict for the defendant obstetrician after only an hour and a half of deliberations. Plaintiff’s counsel asked the jury for $1,600,000. No offer was ever made by the defendant.
David Burtker and Allison Alban successfully defended an anesthesiologist in a medical negligence lawsuit in Cook County Illinois. The defendant anesthesiologist provided care to the 81 year old plaintiff both prior to and during cataract surgery. The plaintiff alleged that due to her history of a prior ischemic stroke, the defendant was negligent for failing to check certain blood tests within three days of the cataract surgery. Post-operatively, plaintiff sustained a central retinal artery occlusion as a result of a retrobulbar hemorrhage. After deliberating for approximately one hour, the jury returned a verdict in favor of both Mr. Burtker’s client, as well as the co-defendant ophthalmologist.
Scott Herbert achieved a not guilty verdict on behalf of an orthopedic surgeon and his group in DuPage County. The minor plaintiff, who was 7 years old at the time of the occurrence, alleged that she was permanently disfigured due to the surgeon’s negligent use of a cast saw during a closed reduction for a both bone forearm fracture. In addition, the plaintiff proceeded under a theory of res ipsa loquitur, that allows a jury to infer negligence if they find that, in the normal course of events, the injury sustained by the plaintiff does not ordinarily occur in the absence of negligence. The plaintiff asked for $140,000 to $180,000. The jury deliberated for 1 hour and 45 minutes during lunch before returning a verdict for the defense. This is the 3rd trial in which Mr. Herbert has successfully defended an orthopedic surgeon.
David Burtker and Marni Slavick successfully defended an obstetrician/gynecologist in a multi-party birth trauma medical negligence case spanning 4 weeks. Plaintiff alleged that the defendants were negligent in failing to recognize fetal distress and for failing to perform a timely a cesarean section, resulting in the child having severe spastic quadriplegia and cognitive deficits. After the plaintiff’s attorney asked the jury to award $40 million, the jury returned a verdict in the amount of $25 million against the co-defendant family practice physician’s improper use of operative vaginal delivery techniques. Mr. Burtker’s client, as well as the hospital, were found not liable in this complex, high profile litigation matter in Cook County, Illinois.