The Plain Truth About the Practice of Personal Injury Law

Sunday, October 9, 2011

Did the Doctor Commit Malpractice?

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As a Chicago malpractice injury attorney I am frequently contacted by potential clients requesting that I file a medical malpractice case on their behalf. During the initial interview I often quickly discover that the individual does not have a “compensable” case.

Most lay persons as well attorneys unfamiliar with medical malpractice litigation do not understand the difference between “technical malpractice” and what I refer to as “compensable malpractice”. The main difference between the two can best be explained by the following examples:
Client A has a pepperoni pizza for lunch. One hour later he suffers from terrible chest pain. He decides to visit a hospital emergency room. The physician takes a history from Client A, who tells him about the pizza and the resulting chest pain. The physician is quite busy with other patients. He does nothing more than a cursory examination and tells Client A that he is suffering from heartburn from the pizza. He prescribes over the counter “Tums’” or “Rolaids’s” and signs the discharge papers. Client A follows the instructions but the chest pains continue to intensify. Days later he returns to the emergency room and is given a full detailed examined by a second physician. The physician tells him that days before he had suffered a major heart attack but he will fully recover(and did recover) without complications.
Did the first physician commit medical malpractice when he failed to properly examine the patient and simply guessed that he suffered from heartburn as the victim of a pepperoni pizza? The short answer is probably yes but his actions only amounted to “technical malpractice” and not “compensable malpractice” The main distinction between the two is that Client A did not suffer any harm because of the first physicians malpractice. If on the other hand Client A suffered major additional permanent heart damage or died then the matter becomes a case of “compensable malpractice”. In other words malpractice without substantial permanent harm is effectively no malpractice at all. No experienced Chicago personal injury attorney would be willing to accept the case.
During the course of a given day “technical malpractice” occurs in most hospitals. Patients receive the wrong medications or diagnostic testing. Nurses may fail to promptly respond to call buttons, Doctors and staff may abandon their patients for long periods of time. Patients conditions are misdiagnosed and appropriate treatment withheld. They are often discharged too early and given the wrong instructions. Follow up appointments are not scheduled and the patient is not contacted by staff.
All of the foregoing acts constitute “technical malpractice” and only become “compensable malpractice” when substantial harm occurs. Potential clients' and referring attorneys" can certainly benefit by understanding this important distinction.

Rick Grossman

Friday, October 7, 2011

Can the Jury See Photographs of my Car?

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The use of vehicle photographs that show minor damage to the plaintiff’s car is convincing evidence that most jurors find persuasive on the issue of whether the plaintiff was injured in the accident. Chicago injury attorneys have therefore attempted to avoid the admissions of these photographs wherever possible. In days gone by vehicle photographs were usually admitted in minor impact cases without the need for any additional foundational testimony from an expert.

In 2003 the Illinois Supreme Court held that defendants must have expert testimony when they sought to admit evidence of light impact photographs of the plaintiff’s vehicle depicting little or no damage. Following that decision the Cook County Circuit Court held that, absent expert testimony, the evidence was not relevant, and therefore, inadmissible to show that a correlation existed between the amount of damage to plaintiff’s vehicle and the extent of the plaintiff’s injuries. In affirming the Circuit Court, the Appellate Court dismissed the concept that there was a bright line rule regarding the relevancy and admissibility of vehicle photos to show a person’s lack of injury.

The case encouraged plaintiff’s attorneys in their efforts to deny defendants the use of vehicle photos yet their success has been limited and the trend is to allow the use of photos without expert testimony. In short courts have held that a lay juror can readily assess their relationship, if any, without expert interpretation.What plaintiff’s attorneys overlooked was that keeping photos of slight impacts from the eyes of jurors did the same for photos of heavy impacts.

The common thread among all of the cases dealing with this issue is that the trial court maintains wide discretion in admitting these photographs. The standard that they will employ is the time honored standard for the admission of relevant evidence which is now codified in Illinois in Supreme Court Rule 401 which states:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. IRE 401.

In making this determination, the courts tend to focus on the particular issues in the case. For example, if a plaintiff testifies that the accident was severe and that they were thrown around the vehicle violently, but the photographs show only minor scrapes to that plaintiff’s back bumper, a trial court is more likely to allow this evidence to rebut the lay testimony of the plaintiff.

The simplest way to at least have the photographs admitted is to offer them for the purpose of contesting liability. In almost every case, the defendant driver’s version of how the accident took place will differ from the plaintiff’s. If there is any basis to contest liability, no matter how slight, this should be factored in as an additional theory of relevance for the photographs. If the photographs are admitted and the plaintiff still objects and seeks an instruction from the court to limit the use of the photographs by the jury only on the issue of liability, that plaintiff runs the risk of over emphasizing the overall importance of the photographs to all issues in the case. Similar to asking someone to close their eyes and not think about a white elephant.

Another strategy developed by defense counsel for the admission of the vehicle photographs without expert testimony is to use them to rebut the testimony of a plaintiff regarding how the accident took place.

Finally, if a defense attorney suspects that a trial court is against the use of photos without expert testimony to correlate the relevancy of the minor damage to the plaintiff’s injury, a defense attorney may attempt to utilize these photos in the plaintiff’s own treating physicians’ evidence deposition as a means to contradict the basis of that physician’s opinion. Often times plaintiffs will tell the same exaggerated version of the accident to their treating physician or chiropractor and that will be relied upon by the physician or chiropractor as a basis in formulating their causation opinions. Showing photographs to these physicians of the lack of damage to the vehicle may cause the physician to alter their causation opinions or at the very least, indicate that the photographs contradict the plaintiff’s version of the accident. 

 So the conundrum remains unchanged as Chicago injury attorneys continue in their efforts to manipulate the system

Rick Grossman