Category Archives: Wrongful Death

Washington Post – Wrong Site Surgery Happens 40 Times a Week

Holy crap… that’s about all I can say about that. This article is amazing. You would think that wrong site/wrong person surgery could be prevented (and it can), but it still happens. A lot.

All sorts of problems still happen with regularity. Surgery based on test results given to the wrong person. Flipped x-rays (really? even in the digital age where all x-rays are on a computer?). Marking the wrong side of the body or the wrong vertebra.

Several years ago, the National Quality Forum coined the term “never events” to describe medical errors that are almost entirely preventable. These include:

  • wrong site/wrong patient surgeries,
  • medication errors,
  • wrong procedures,
  • retained objects after surgery (clamps, sponges, etc),
  • pressure ulcers or bedsores,
  • injury due to incompatible blood or blood products,
  • death or serious injury due to hypoglycemia
and several other very preventable but very serious errors. You can read more about them here.
The bottom line is that medical errors – even dumb ones – keep happening at a higher rate than they should. Even the staunch tort-reformers would have difficulty arguing that someone who is injured or the family of someone who dies from wrong site surgery or another one of these “never events” doesn’t deserve fair and full compensation. That’s where we come in.
(Howard Zimmerle is a medical malpractice and nursing home negligence lawyer practicing in Illinois and Iowa. He can be reached at hzimmerle [at] mjwlaw.com or 309-794-1660). 

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Filed under Medical Information, Medical Malpractice, Wrongful Death

Our Firm in the News

Here is an article about a dram shop case we filed last week. I won’t add much to what is in the article because the case is pending. It should be noted, though, that a bar only needs to be “a cause” not “the main cause” or “the biggest cause” of someone’s intoxication (although it has to be more than de minimis).

(Howard Zimmerle is a personal injury attorney in the Quad Cities who handles car accidents and dram shop cases, as well as many other injury matters. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com).

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Filed under Illinois Case Law, Illinois law, Our Firm, Quad Cities, Wrongful Death

The Defense Attorney Wants me to Sign a “HIPAA Protective Order.” Should I Do It?

I assume everyone in Illinois has seen a few purported “HIPAA Protective Orders.” (Especially if you practice in Peoria, for some reason). While I assume a lot of lawyers sign these rather blindly, is it a good idea? Is it necessary?

1. LOOK AT THE TERMS OF THE “AGREEMENT”

A lot of the time these agreements are too broad for us to feel comfortable signing. Many of them allow the defense to get all of the plaintiff or decedent’s medical records from birth to death without notice to the plaintiff’s counsel. Not every medical record should be automatically discoverable, and both HIPAA and the Illinois Subpoena procedure contemplate giving the plaintiff’s attorney the right to object.

Another place where these agreements are typically overbroad is in the area of redisclosure. Obviously a defense attorney and staff have to be able to look at the records – yet some propsed agreements allow redisclosure to “consultants”, “insurance companies” and “all others”. You need to reign this in – you don’t want your client’s medical information to end up in the wrong hands.

Finally, some of these go so far as to violate Petrillo. Do not let that happen.

2. A HIPAA PROTECTIVE ORDER IS NOT NECESSARY.

A health care provider needs one of two things before it can disclose records pursuant to a subpoena: either a qualified protective order, or a letter with certain information, as shown below. In other words, a qualified protective order is OK, but there is an easier way to get the job done.

  • A covered entity (health care provider) may disclose health care records pursuant to subpoena, but only if
    • it receives “satisfactory assurance” from the party seeking the information that the (person who the records are about) has been given notice of the request, OR
    • it receives “satisfactory assurance” from the party seeking the information that the party made reasonable efforts to secure a HIPAA qualified protective order. 45 CFR § 164.512(e)(1)(ii) 

So, in other words, a health care provider needs either a qualified protective order, or “satisfactory assurance” that notice was given. This satisfactory assurance means:

  • Written statement with accompanying documentation that:
    • The party requesting the subpoena made a food faith attempt to provide written notice to the (plaintiff);
    • The notice is sufficient to inform the (plaintiff) about the litigation and permit the plaintiff to raise an objection; and either
      • The time for objection has passed with no objection, or
      • A court ruled on any objections in favor of the party seeking the subpoena (45 CFR § 164.512(e)(1)(iii)) 

If a qualified protective order is sought instead, the only requirements are that the order:

  • Prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested. 45 CFR § 164.512(e)(1)(v)(A)
  • Requires the return to the covered entity (health care provider) or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding. 45 CFR § 164.512(e)(1)(v)(B) (not clear if both parties have to do that, or just the party requesting the records.)

Be very careful with these.

(Howard Zimmerle is a personal injury and medical malpractice attorney in the Quad Cities. You can contact him at hzimmerle [at] mjwlaw.com or 309-794-1660).

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Filed under Illinois Case Law, Illinois law, Medical Information, Medical Malpractice, Traps, Trial Practice, Wrongful Death

Nursing Homes are Better off if the Patient is Dead – Illinois Appellate Court Denies Punitive Damages in Nursing Home Cases

The Second District Appellate Court recently confirmed that punitive damages are not available in wrongful death cases based on the Illinois Nursing Home Care Act.

The case is Vincent v. Alden-Park Strathmoor, Inc., and it reaffirms one of the bizarre wrinkles in Illinois law – common law punitive damages may be available to a living person, but not to the Estate of a dead person. In other words, nursing homes that commit willful and wanton conduct (that’s essentially “really bad”, for you non-lawyers) might get off easier if that willful and wanton conduct kills their patient.

This isn’t the last word on the subject, but it is important to get the case out there.

(Howard Zimmerle is an attorney in Rock Island Illinois who handles nursing home neglect and abuse cases).

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Filed under Illinois Case Law, Illinois law, Trial Practice, Wrongful Death

Iowa’s work-related deaths mostly farmers, truckers

From an article in the Quad City paper today, 57% of Iowa’s work-related deaths were either farmers or truck drivers. This makes sense – those gear-jamming truck drivers put in a lot of miles, and often put in an insane amount of hours at a time. Trucking accidents are bound to happen.

Farmers use big machines, and are often all alone in the fields. If an accident happens, there might not be someone to call for help as quickly as in a factory setting.

 It all makes sense, but the study didn’t include heart attacks or disease. These cases are difficult to label as “work-related,” but many are. It would also be interesting to see how many other people died in the trucking accidents, and whether they were “working” at the time.

(Howard Zimmerle is an Iowa workers compensation and wrongful death lawyer practicing in the Quad Cities. You can contact him here.)

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Filed under Workers Compensation, Wrongful Death

The Value of Wrongful Death Cases

One of the biggest challenges facing wrongful death attorneys and juries is to put a value on the life that was lost. Medical bills, lost wages, etc is the easy part – there’s a number for that. Things like pain and suffering (not usually recoverable in wrongful death cases), and loss of society or consortium can be very difficult to put a value on.

Now there’s a study in the UK courtesy of Scientific American that purports to put a price of losing a loved one. I’d be very interested to see the actual research, but the numbers they apparently came up with were as follows:

Loss of a spouse: $220,000 annually;
Loss of a child: $118,000 annually;
Loss of a parent: $28,000 annually;
Loss of a friend: $16,000 annually; and
Loss of a sibling: $2,000 annually.

This obviously raises a lot of questions… but it’s still worth a look.

(Howard Zimmerle is a personal injury attorney in Rock Island, Illinois)

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Filed under Juries, Legal News, Negotiations, Settlements, Trial Practice, Wrongful Death

Apparently losing an 11 year old girl is worth nothing

How much would a reasonable jury award for the wrongful death of an 11 year old girl?

 Apparently in Polk County, Iowa, the proper measure of damages is medical expenses plus interest on burial.

The Iowa Court of Appeals affirmed a Polk County judge’s denial of a new trial in Phelan-Ruden v. Suddreth. In the case, an 11 year old girl died in a skiing accident. The jury found the defendants 100% liable for the child’s death (I’m not sure what the cause of action was exactly…. failure to properly supervise maybe?) but awarded only $2,433.95 in medical expenses and $10,545 in interest on burial costs. That’s it. Nothing else.

In Iowa, the measure of damages for the death of a child is the present value of the minor’s estate – which the jury instructions define as “The present value of additional amounts the minor would reasonably be expected to have accumulated as a result of her own effort from the date she would have reached age eighteen until she had lived out the terms of her life” Iowa Jury Instruction 200.27. The parents are also allowed to recover for the value of lost services/companionship the parents would have received between the child’s death and when the child turned 18, minus the expenses of raising the child.

In this new case, the jury apparently found that the cost of raising the child outweighed any benefit the parents would have gotten from the child’s life. Does anyone believe that? Would any decent parent, after having lost their 11 year old daughter say “Man am I glad I won’t have to spend so much to raise that kid. This is great! Think of all the money I’m saving! What a good trade-off.” Of course not!

The jury also bought into the argument that the child wouldn’t accumulate any money over the course of her life… the opinion makes it look like the defense’s argument was essentially “Look at the child’s family. They never amounted to anything, so the child wouldn’t have either.” That’s a callous, ballsy argument to make to a jury, and I think much of the time the argument would backfire.

The jury essentially determined that, as the court put it, “the value of any lost services – economic, emotional or otherwise – did not exceed the cost to raise Jessica to adulthood.” Wow. Were there any parents on that jury?

I’m surprised. I can’t say that this was wrong, as I haven’t seen or heard all of the evidence. This is really just a knee-jerk reaction to the case. I’m also pretty surprised that the Court of Appeals affirmed the judge’s decision not to grant a new trial. One appellate judge, Judge Baker, dissented, and I think rightfully so.

Interestingly enough, the Court of Appeals affirmed the grant of a new trial in this case in February where a woman suffered some damages, the defendant admitted fault, and the jury did not award any damages. Isn’t that a similar situation?

My thinking is that the difference in the two opinions probably stems from the “abuse of discretion” standard used in reviewing a trial judge’s decision to grant/deny a new trial. For those non-lawyers, the abuse of discretion standard essentially means “a standard of review that allows trial courts to make whatever mistakes they like,” according to the Curmudgeon’s Guide to Practicing Law.

Oh well. Like I said, there’s probably something I’m missing… and the Court of Appeals probably did the right thing. I’m just surprised that a jury of 12 people in Des Moines decided that this award would do justice to a family who lost an 11 year old girl.

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Filed under Iowa Case Law, Juries, Wrongful Death