Articles Posted in Legislation

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A birth injury lawsuit is essentially a subset of medical malpractice lawsuits. In the majority of cases where another party is found liable for causing or contributing to the birth injury that party is a medical professional who did not provide a reasonable standard of care. Therefore when tort reform advocates argue for changes to the medical malpractice system, birth injury victim advocates should stand strong in opposition. It is important for advocates to be well versed in the debate to have logical points to rebut those who seek to mislead others about the need for changes to the tort system.

One good starting point is a comprehensive primer published by an author at the Cato Institute. An economist professor published the policy analysis asking the question, “Could Mandatory Caps on Medical Malpractice Damages Harm Consumers?” The author explains that a key argument of many tort reformers is that capping awards will lead to reduced medical costs. While this arguments works well in political debates, it is much more questionable when examined closely. Beyond that questionable claim, tort reformer also fail to take into account the effects that caps would have on the victims of medical malpractice. They also do not consider the effects of the lost incentives that lawsuits have to ensure high quality care.

The Cato Institute paper looks at all available data and finds that malpractice awards actually do track the extent of damages. In other words, in general the amount of damages awarded is usually reflected by the extent of injuries that the malpractice caused the victims. Settlement amounts and jury awards are not arbitrary numbers without connection to harm, as some critics maintain.

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When the nation’s Founding Fathers crafted our current governmental structure when drafting the Constitution, they took great care to create various branches of power, each with specific tasks. Of course, everyone learns in middle school that there are three branches of government: the executive, the legislative, and the judicial. Each is intended to balance against the others, to create an overall system of government that is effective, fair, and efficient.

The judicial branch is intended to be a co-equal body, the place where the laws are interpreted and applied. Our Illinois birth injury lawyers are proud to be a part of that legal tradition, representing local residents who have been hurt as they navigate this justice system. Through the years, however, the judiciary has been attacked, with some calling for legislative efforts to weaken the institutions that dispense justice. There are many different policy proposals, but at the heart of virtually all of them is a desire to remove from the judiciary the ability to make certain decisions when it comes to disputes between community members or interpretations of the actions of a legislature. Many of these efforts are blatantly unconstitutional. Others clearly go against the spirit of split bodies of government that has long been a cherished part of our national history. All of these efforts are unnecessary and harmful.

A story in the Denver Post demonstrates the folly of taking away the dispensation of justice from the body best suited for it: the judiciary. The story shares the tale of a 14-year old boy who wrote a letter to state house officials essentially pleading with them to allow him to actually receive the jury award that he was given nearly five years ago. The teen boy had severe brain damage inflicted as a result of a preventable birth injury. A few years after the injury, as his mother learned more about the circumstances surrounding the situation, a birth injury lawsuit was filed on his behalf. The lawsuit argued that the professionals involved in delivering him made crucial errors which led to his brain damage. The jury awarded the boy and his family roughly $30 million, a total it reached after carefully considering the total cost of the harm to the boy over the course of a lifetime as a result of the medical malpractice. The funds would allow the child to have the care he needed to maximize his quality of life.

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The Chicago birth injury lawyers at our firm are staunch opponents of tort reform measures, because we know the effect that it might have on many birth injury lawsuits. Most tort reform, measures target medical malpractice, and any experienced Chicago medical malpractice attorney can explain how mistakes made during childbirth are some of the costliest forms of medical negligence. Any changes to the justice system that limit the ability of these victims to receive the full value of their loss will have catastrophic effects. Victims lives will be made even worse and more mistakes will ultimately be made as an important incentives to maximize patient safety are removed.

Unfortunately, despite the clear danger, tort reform measures continued being proposed. Insurance companies are often at the heart of pushing these proposals, as they clearly have much to gain by not having to pay when their insured make mistakes. Public opinion is swayed by claims from insurance insiders that rising premiums are caused by lawsuits. Yet, as a new report from the Center for Justice and Democracy argued, the so-called “crisis” reported by the insurance companies are actually fabrications. In fact, the report argues that in 2012 insurance companies are set to invent yet another “crisis” in order to increase premiums, decrease services, and ultimately pad the industry profits.

The latest report, entitled “Repeat Offenders: How the Insurance Industry Manufactures Crises and Harms America,” outlines in persuasive detail how insurance companies are working to shift from a “soft” market to a “hard” one. A soft market-which we have been in since 2006-is one where companies actually compete to win customers and premiums remain stable. In contrast a “hard” market favors the insurance company, allowing them to increase premiums and decrease services. The companies are allowed to make the change if they can convince others that they are collectively having money problems. Therefore, depending on how they game their books, the industry can try to convince regulators that prices need to be collectively raised on individuals and businesses.

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Earlier this year our Chicago birth injury lawyers called on readers to take the time to watch the documentary “Hot Coffee.” The film was created by a personal injury lawyer who stopped practicing in order to create the documentary setting the record straight on many misguided beliefs about the civil justice system. The film was aired on HBO earlier this year, and has had a few repeated showings since. In addition, it is now available in a wide variety of other settings for those who have not yet had a chance to view it. This week a contributing article in the Digital Journal made another call urging everyone to take the time to watch the film. Of course those who currently believe that tort reform efforts are necessary may have their mind changed by the arguments laid out. But it is important for patient rights advocates to check out the film as well. It will help arm advocates with new information that may be helpful to share when having discussions about these topics with friends and family members.

The new article explains how the central story in the film is that of the well known McDonalds lawsuit where an elderly woman sued the company after suffering severe burns when coffee as hot as a car radiator spilled onto the lap. Her injuries were so severe that she ultimately required several skin grafts. Her life was never the same after the injury. The company was well aware of the risks posed by their hotter-than-normal coffee temperature, as hundreds of other patrons had also been injured. However, the company had not taken even simple steps to make the product safer. Eventually, the woman’s lawsuit resulted in punitive damages being awarded for the company’s failure to take reasonable steps in the face of a known risk. While the media portrayed the lawsuit as an example of something frivolous, the award amount was only in place to force the company to act reasonably.

Hot Coffee also shares other injury lawsuit stories, including one family that filed a birth injury lawsuit after one of their twins was injured as a result of their doctor’s negligence during the birth. The movie explains how the family hired a birth injury lawyer who took the case to trial. After the impartial jury heard all of the evidence in the case, they decided that the doctor was clearly negligent. They then heard even more evidence from both sides on the total award that the injury would cost the family over the life of the child. The jury awarded what they thought was a fair amount. However, unknown to the jury, a damage cap law in the state, reduced the award considerably. As a result the family has no idea how they will find the money to pay for the boy’s needed care. At the end of the day, it will likely be the taxpayers who are forced to provide the necessary care. This remains a hidden reality about damage caps. At the end of the day, the caps do not make it any less expensive for families to recover from the harm caused by the negligent party. The only thing that the caps do is make life tougher for the victims and shift costs away from the party who actually caused harm and onto the taxpayers.

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The Chicago birth injury attorneys at our firm have consistently reported on the so-called “tort reform” efforts by some policymakers at the federal and state levels. The vast majority of birth injury cases are actually medical malpractice suits against medical providers who made errors during pregnancy or birthing process. Therefore any changes to the legal system as it relates to victims of medical errors will have direct consequences on victims’ ability to recover following problems they experience during childbirth. Unfortunately the debate itself rarely goes beyond the same talking points that have been mentioned again and again.

Most of the time those involved in the debate simply claim that the other side is only interested in money. For our part, it is a genuine concern that the loudest medical malpractice reform advocates are medical interest groups and the insurance lobby who stand to directly gain financially by taking away rights from medical error victims. However, we realize that those on the other side just as quickly claim that medical malpractice attorneys are against the measures solely because we work in the industry and are paid to help these victims. We continue to argue, that there is a difference between our advocacy and those of insurance companies. It is those pushing “reforms” who have the burden of showing that their proposed changes are not being made for their own financial interests. We are not advocating any changes to the legal justice system, but instead are simply fending off those who wish to change it from the system enshrined in the Constitution at the nation’s founding.

What makes the situation even more disappointing is the fact that the lives of patients will actually be affected by these decisions; it goes well beyond disagreements about money. Many experts in a wide range of disciplines have shown that eliminating incentives to act responsibly has serious detrimental effects on the quality of care. This was the same point made last week by an economics professional in a Huffington Post editorial. The professor reminded those engaged in the debate that the incentive structures currently in place by medical liability insurers would likely disappear if damage caps or other changes were made to the system. It is often forgotten that insurer’s play a key role in incentivizing proper medical care. The insurers have oversight structures where particularly negligent physicians are monitored and ultimately required to pay more depending on their perceive error risk. That risk is based on the providers past track record of care. There are clear incentives for doctors, nurses, and other medical professionals to take extra care to protect the patient and themselves. Yet, medical malpractice damage caps would remove those crucial incentives-likely leading to increased instances of neglect and inadequate care. Those involved in the medical malpractice debate should not ignore or minimize this point.

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Our Illinois birth injury attorneys found it interesting that a Florida court decided to allow the family of a baby injured during childbirth to sue the doctor and the hospital personally, since the state has a statewide fund set up to compensate families for birth related injuries instead of allowing the injured party to sue the doctors and hospital. According to the American Medical Association, the baby was born nearly ten years ago after the mother was in a car accident, and the baby had no oxygen when it was first born but responded positively to resuscitation. The newborn suffered respiratory distress shortly after birth and was sent to an area of the hospital where she was to receive special care. However, while in this special care area, the baby suffered more health problems and at that point experienced a hemorrhage and actually stopped breathing again. During this time the baby girl suffered both permanent and severe brain injuries. The family believed the hospital staff were responsible, but because of the program implemented by the state, the family was not able to sue the doctor or the hospital individually until very recently.

The reason that the family was unable to sue the doctor and hospital initially is because the state has a statute that requires that any birth injury involving oxygen deprivation during the birthing process be compensated through a fund set up through the state for these types of injuries specifically. This means that the doctors and hospitals are protected and that the families of the injured babies cannot sue them personally for injuries that are caused by a lack of oxygen during child birth. This is not something that has been adopted by all states and in Illinois the family of a newborn who is injured during childbirth may sue the doctor responsible and the hospital responsible for the injury to the newborn. This is an example of how different states may handle personal injury lawsuits and the type of compensation available to the victims of certain types of personal injuries. The reason that this statute was created in this particular state was to try to help with a growing medical liability problem in the state and to try to make the medical world more stable. However, many victims are upset by this law because it often shields the person actually responsible for the injury from any type of liability.

The court in this lawsuit found that the family was able to sue the doctor and the hospital because the injury did not occur during the actual birthing process but rather in the days following the birth. Given the timing of the injury, the court held that the statute was intended to apply to birth related oxygen deprivation injuries only and therefore was not to be used in this particular instance, because the injury to the baby that resulted in the brain damage occurred days after the birth.
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Xzavier Hyman, a four year old child from Staten Island, was recently awarded $510,000 in a Medical Malpractice action against the obstetrician-gynecologist responsible for delivering him.

Xzavier’s mother, Ms. Spicer, was going through a difficult birth so Xzavier’s doctor, Dr. Paul Heltzer, ordered the use of Pitocin, a drug which helps speed up delivery by inducing contractions, to help her along in the birthing process. Pitocin is commonly used for women who are having difficulty delivering their child. However, Dr. Heltzer made the mistake of administering the drug for too long which put stress on Xzavier’s brain, causing three or four strokes and three seizures within 10 hours of his birth.

Xzavier’s attorney’s successfully argued that Ms. Spicer was kept too long on Petocin, and her relentless contractions stressed Xzavier. Additionally, they argued that a Caesarean operation should have been performed several hours before Ms. Spicer gave vaginal birth to Xzavier. If these steps were taken, Xzavier’s injuries could have been avoided.

The delivery, and subsequent stokes and seizures, left Xzavier with permanent injuries. Xzavier still suffers from some speech and fine motor skill deficiencies, the gap in IQ between him and his peers has continued to widen, and his life expectancy was cut approximately six years.

Both Xzavier’s mother and attorney expressed joy that the verdict came down in their favor, but disappointment that the award was not higher. Many birth injury malpractice cases award damages far greater than the $510,000 that Xzavier received. Much of this is based on the ongoing medical bills that a child will face as he ages because of the injury.
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Illinois birth injury victims may get access to treatment that was previously unavailable to them thanks to new legislation recently signed by Governor Pat Quinn. Children with cerebral palsy and other developmental disorders such as Down syndrome and autism will soon be able to get treatment thanks to a new law that requires insurance companies to pay for speech, physical and occupational therapies. Specifically, the law requires insurers to extend coverage to “habilitative treatments,” which are those intended to teach new skills and maximize functioning. The law takes effect January 1, 2010.

For more information on how this new law will help children with cerebral palsy, click here.

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Just 4 years ago, only a third of all infants born in the United States were required to undergo screening tests to determine whether they had acquired any of a multitude of conditions. Now, all states and the District of Columbia have enacted rules or regulations requiring newborn screening for at least 21 disorders including genetic, metabolic, hormonal and functional disorders. The screening is important to detect the presence of such birth defects and birth injuries because many have no visible symptoms until after permanent damage has developed. Early detection allows for timely treatment, which can prevent permanent injuries such as brain damage and mental retardation from occurring. If you are interested in learning more about newborn screening and the disorders that it can detect, the March of Dimes is an excellent resource.

Read more about the newborn screening requirements here.