MEDICAL MALPRACTICE – DELAY IN DIAGNOSING LUNG CANCER

Negligent delays in diagnosing lung cancer are a common form of medical malpractice, which almost always cause pain, suffering, disability, and often death. A timely lawsuit can provide necessary medical treatment, which may prolong the patient’s life and provide compensation to the victims. Medical malpractice is an epidemic with between 200,000 and 400,000 Americans dying annually from carelessness and negligence. The single most effective way that this epidemic of medical negligence can be controlled is by exposing this negligence, by holding the health care providers and corporations accountable, and forcing them to pay for the unnecessary injuries and deaths which result. Forcing careless hospitals and doctors to be accountable and to pay for the injuries they cause improve how other patients are treated and prevent similar injuries.

The Law Office of Kenneth C. Chessick, MD has been privileged to represent victims of medical negligence, to obtain well-deserved compensation, and to improve treatment provided. When the diagnosis of lung cancer is negligently delayed, the victim is deprived of being cured, and results in their suffering, disability, and sometimes death.  Two real life cases of negligent delays in diagnosing and treating lung cancer illustrate the legal process which provides compensation to the victims, accountability and closure, and justice. In both cases, the symptoms of lung cancer were ignored, in one for eight months and the other for two years before the lung cancer was diagnosed and finally treated.  In one case, a radiologist carelessly issued a report that the man with lung cancer’s chest x-ray was normal, when the radiologist and hospital confused him with a normal chest x-ray of a woman. A simple checklist procedure to prevent this confusion would have saved this man’s life. In the other case, the doctor’s simply taking the time to listen to his patient would have save the lady’s life.

CASE #1: CHEST X-RAY MISREAD, COUGHING UP BLOOD IGNORED

When I was a teenager, my mother taught me the importance of a simple checklist, a grocery list, when she sent me shopping for groceries to prevent my forgetting something. Medical negligence is the careless failure to act by the doctor in a reasonably careful manner which results in an injury. A doctor’s using the wrong patient’s name when reporting on an x-ray is an inexcusable negligent act. Not identifying the correct patient’s name makes that report unavailable to the patient who needs it. This sloppy, careless act can only occurs because doctor is not paying attention to his job and because the hospital does not have a simple checklist procedure to prevent or catch the negligent act.

My client, Mr. Keith, suffered and died because of this inexcusable negligence. A 55 year old male smoker, Mr. Keith complained to his family doctor, Dr. FP, whom he trusted, that he was coughing up blood.  Coughing up blood by a smoker is always a serious issue and must be treated as “cancer until proven otherwise.” Dr. FP ordered a chest x-ray at his hospital. The chest x-ray was negligently reported by the hospital radiologist, Dr. HR, as “a normal chest x-ray,” despite his actual x-ray which showed a highly curable lung cancer. Dr. HR was busy, rushed, or distracted when he interpreted Mr. Keith’s chest x-ray. Dr. HR and his hospital had no checklist system to ensure that Dr. HR correctly identified that x-ray he was reading belonged to the same patient. Dr. FP, upon receiving the “ normal chest x-ray” report, did nothing further to determine the cause of Mr. Keith’s coughing up blood, did not view Mr. Keith’s x-ray film himself, and did not discuss the chest x-ray with Dr. HR.  Dr. FP falsely reassured Mr. Keith that he had nothing about which to be worried and his repeated concerns over the next eight months were unfounded. Dr. FP prescribed cough medicine over the next eight months, which Mr. Keith’s coughing up blood continued unabated. Dr. FP chided Mr. Keith for being an alarmist, but upon Mr. Keith’s insistence, Dr. FP finally ordered a CT Scan of the chest, which showed Mr. Keith’s Stage IV lung cancer, which had now advanced, spread to his bone, and became incurable.

In reviewing the prior chest x-ray done eight months earlier, Dr. HR discovered that he carelessly dictated a woman’s normal chest x-ray using Mr. Keith’s name. Dr. HR had multiple clues to that he was not dictating Mr. Keith’s chest x-ray, including that the chest x-ray was of a woman with easily visible breasts, and moderately obese, while Mr. Keith, a male, was tall and slim. Neither Dr. HR, nor his hospital, had any procedural safeguards to prevent mixing up patient’s names. They trained their personnel poorly and had no quality control procedures to detect identity errors. A simple checklist procedure to confirm the patient’s identity, similar to that used by nurses in operating room at that same hospital, and no more complex than a grocery shopping list, would have avoided this careless neglect and would have prevented Mr. Keith’s suffering, disability, and painful death.  Mr. Keith lived for another two years with severe bone pain, anguish, and disability.  He is survived by his wife of 35 years and his children, who suffered with him.

The Lawsuit: Mr. Keith vs Dr. HR, Dr. FP, and Hospital

Following his death, Mr. Keith’s wife contacted me, and we filed the case, which was defended vigorously by the defendants and their insurance companies, as virtually every medical malpractice case is defended. The three defendants (Dr. HR, Dr. HP, and the Hospital) all denied that they were negligent. We retained multiple expert witnesses to prove our case.  A family practice doctor expert testified that Dr. FP was negligent because Mr. Keith’s coughing up blood is always abnormal and required intensive investigation, particularly because of his history of smoking. The cause of Mr. Keith’s coughing up blood must be determined, and stopping after a negative chest x-ray report is not reasonable.  Other tests, including an examination of what he was coughing and a CT scan of the chest, were required and negligently not done.  Our radiologist expert witness testified that Dr. HR was negligent in dictating a report on Mr. Keith while describing the findings on another, normal, female patient, and that Dr. HR and the Hospital negligently did not have a checklist to prevent confusing patients and to identify when such carelessness occurs.  An oncologist expert testified that during the eight month window, the cancer grew unabated and the likelihood of cure diminished. Each defendant retained expert witnesses to disagree with every opinion of our experts. On the eve of trial four years later as we picked a jury, the case settled for an amount in excess of $2 million, which provided much needed compensation to Mr. Keith’s struggling wife and children and avoided further legal wrangling and delay, which would likely include an appeal.

CASE #2: PERSISTENT COUGHING IGNORED

While I was a sophomore in medical school in 1965, I was taught, “Listen to the patient; she will tell you the diagnosis,” and “90% of diagnoses are made by taking a careful history and doing a thorough examination.”  In delay in diagnosis of lung cancer cases, the negligence is usually the doctor’s ignoring serious symptoms, sometimes present for years. Lung cancer is a disease which afflicts both men and women. 63 year old Mrs. Beth was treated for three years with repeated episodes each year of a productive cough and fever. Mrs. Beth, a non-smoker, lived for years with her husband who smoked, and she was exposed to “second-hand smoke.” Dr. INT, her internist, negligently treated each episode as if the other episodes did not occur, never questioned why she had twelve office visit in three years just for her persistent, unrelenting cough, and ignored her high risk status for lung cancer.  He did not review Mrs. Beth’s medical chart and did not listen to her complaints of repeated, unexplained episodes severe enough to require a visit to Dr. INT.  He chose to not order any tests to investigate possible lung cancer. For the next three years, Dr. INT negligently chose to not order a chest x-ray, CT scan, or even  a sample of what she had been coughing up to see if cancer cells might be present. On the tenth office visit and after insistence by Mrs. Beth, Dr. INT finally ordered a chest x-ray and then a CT scan of the chest.  Advanced, Stage IIIA lung cancer was diagnosed and treatment begun.  Mrs. Beth underwent a major surgical operation which removed the lung cancer and received postoperative chemotherapy.  Because of its advanced stage, the anticipated cure rate for similarly advanced cancers dropped from 90% to less than 15%.

Mrs. Beth vs Dr. INT

Mrs. Beth, a charismatic, intelligent woman, consulted me, and we filed a lawsuit against the internist, Dr. INT, which was again vigorously defended by the doctor and his insurance company.  Our expert witness internist testified that Mrs. Beth’s repeated episodes of productive coughing within such a short period was abnormal and required intensive investigation by Dr. INT, particularly because of her history of exposure to second-hand smoke. Our expert oncologist testified that simple testing with a chest x-ray and examination of the material she coughed up would have diagnosed the lung cancer years earlier.  The cancer had been present for at least four years prior to causing symptoms, and had it been treated years earlier, the likelihood of cure would have been in the 90% range, instead of the 15% now present.  At the time of the trial, Mrs. Beth had no obvious evidence of recurrence.

Dr. INT and his insurance company retained expert witnesses to disagree with every opinion of our expert. According to the Dr. INT’s experts, no investigation of her symptoms was warranted, and Mrs. Beth’s lung cancer either was always incurable, or conversely, she was cured with no evidence of recurrence. The defense experts had no difficulty testifying under oath that Mrs. Beth was either cured or was always incurable. Time was obviously precious for Mrs. Beth, and we sought and were granted an expedited trial. During the three week trial when it became obvious to the insurance company that the jury did not believe Dr. INT’s experts and their inconsistent, contradictory testimony, Mrs. Beth’ case settled for $1.5 million.  Mrs. Beth enjoyed the remaining two years of her life until her death from metastatic lung cancer. Mrs. Beth had the satisfaction of financially providing for her two daughters after her death and holding Dr. INT accountable for his negligent failure to “listen to the patient; she will tell you the diagnosis.”

JUSTICE CAN BE ELUSIVE WHEN SUING A DOCTOR

Holding a doctor or corporation liable for the consequences of its negligence is always difficult. The potential jury pool, which includes almost all of us, is inundated with propaganda from corporations and insurance companies which falsely suggest that the victims of medical negligence lawsuits are the defendants, not the ordinary, trusting people injured. The reality is that under the law, doctors are treated as a “special class,” to the detriment of their victims. Special laws exist for holding doctors responsible for the injuries caused by their negligence, which create hurdles and obstacles not present for holding ordinary people liable for their negligence. These laws make filing and prosecuting medical malpractice cases more difficult and more expensive to hold negligent doctors accountable than in other personal injury cases. In Illinois and many states, to even file a lawsuit against a doctor or medical corporation, the injured patient must attach a letter from a doctor who has reviewed the records and who attests that medical malpractice which caused the injuries or death occurred. Such a review is expensive, often costing $1,500 or more. These requirements do not exist when suing a careless driver, even if that driver was the same doctor. Doctors get special treatment under the law.

The hundreds of millions of dollars spent by corporations and insurance companies on propaganda to influence potential jurors have had their effect, and jurors are sympathetic to doctor defendants. We need our doctors, and jurors sometimes identify with the defendant doctors, particularly if the juror has a doctor he/she likes.  Acknowledgment of a physician’s carelessness is threatening to us all, and some jurors distance themselves from the medical malpractice by denying its occurrence. Achieving justice for victims of medical malpractice requires understanding this dynamic is often at work during a trial. In my experience, when a jury finds a doctor liable, the evidence is usually overwhelming.

JUSTICE REQUIRES STRICT PROOF

In order to prevail in a medical malpractice lawsuit, the victim must prove that the doctor or corporation breached the standard of care, that he/she was injured, and that the breach in the standard of care was a proximate, contributing cause of the injury.  In Mr. Keith’s case, all three defendants were negligent, including the Dr. FP, family doctor, Dr. HR, the radiologist, and the Hospital.  Dr. HR, the radiologist who switched the names of patients on the report, breached the standard of care and did not act like a reasonably careful radiologist. The Hospital defendant breached the standard of care by not having systems and procedures to prevent confusing patient names. The Hospital defendant was responsible for the actions of Dr, RAD, who was an apparent agent of the Hospital defendant.  Finally, Dr. FP, the family practice doctor, was negligent in not repeating the chest x-ray, not ordering a CT scan, in not consulting with a specialist for Mr. Keith in a timely fashion, and for ignoring Mr. Keith’s pleas for help.  The negligent acts and omissions caused a long delay in the treatment of Mr. Keith’s cancer, during which time the cancer became incurable.

In Mrs. Beth’s case, Dr. INT, the internist, was negligent for ignoring Mrs. Beth’s persistent, recurrent symptoms for more than three years without simple diagnostic tests, including ordering a chest x-ray, collecting and microscopically examining the coughed up sputum, or consulting with a specialist.  Simply prescribing antibiotics without determining the cause of Mrs. Beth’ symptoms, a lady who was at increased risk for lung cancer because of her exposure to second-hand smoke, was not what a reasonably careful internist would do in these circumstances. The unnecessary delays in treatment robbed both Mr. Keith and Mrs. Beth of their chance to be cured of their lung cancers, and as a result, the cancers grew untreated and both died from the defendants’ negligence.

DOCTORS AND INSURANCE COMPANIES ALWAYS DEFEND VIGOROUSLY

Delays in paying for the death of the patient due to negligence always benefit the negligent doctor and his insurance company.  Juries almost always award more compensation to the alive victim, who can personally benefit from the award than to the victim’s heirs. Defendant doctors, hospitals, and insurance companies always vigorously defend “failure to diagnose lung cancer” cases and delay settlement for as long as possible. Regardless of how egregious the doctor’s conduct, defendant doctors and their insurance companies virtually always find an expert doctor who support their defense. Some defense doctor experts will defend almost any careless conduct. Only a doctor can testify in court as to what a reasonably careful doctor should do in the same or similar circumstances, otherwise known as the “standard of care.”  No matter how obvious, a layman is not permitted to testify to the standard of care of a doctor, even something so evident, as in Mr. Keith’s case.  Dr. HR, the hospital radiologist, admitted dictating that the report that Mr. Keith’s chest x-ray was normal even though Mr. Keith’s original chest x-ray showed the cancer, yet he testified under oath that he complied with the standard of care, because “mistakes can happen.”  The law required Mr. Keith and us to retain an expert radiologist witness to testify to the obvious: a reasonably careful radiologist should dictate the correct report on the correct patient.  Only a doctor is permitted to testify that a delay of diagnosis and treatment for eight months or three years reduced the chance of Mr. Keith or Mrs. Beth of being cured.

“BLAME THE VICTIM”

A favorite tactic in defense of the negligent doctor is to “blame the victim,” even though doctors are in the business of treating people who have disease. In lung cancer cases where a history of smoking is often present, the “blame the victim” defense tactic is frequently employed, even though the law instructs the jury, the experts, and the attorneys that lifestyle choices are not a defense to a doctor’s negligence. The negligence is not that the doctor caused the cancer, but that he prevented the cancer from being cured.  The doctor’s negligence always occurs after the lung cancer has developed. A history of smoking can never cause a negligent delay in the diagnosis and treatment of the lung cancer. Only the negligence of the doctor or corporation can cause the delay.

Notwithstanding the law, some defense attorneys insinuate that the victim is really at fault, especially in lung cancer cases.  Some defense attorneys use the same “blame the victim” tactic when the victim has other health issues, including obesity, diabetes, high blood pressure, or a family history of heart attack or cancer. Sometimes the “blame the victim” tactic is used when the victim is of color, foreign born, or other religion and appeal to conscious or unconscious prejudices.

THE “SO WHAT” DEFENSE

Another favorite defense in failure to diagnose lung cancer cases is a defense expert’s testimony that the delay was harmless; “so what” if the doctor was negligent.  This “so what” defense was asserted in Mr. Keith’s and Mrs. Beth’s cases. The defendant doctors and their insurance companies defended by alleging that the lung cancer had already become metastatic and therefore, even if the defendant breached the standard of care, the cancer was already incurable. In Mr. Keith’s case, the delay between the negligence and the lung cancer diagnosis was eight months, during which time no treatment given to cure the cancer.  In Mrs. Beth’s case, the delay in the window of treatment was more than two years.  During these delays, their untreated cancers grew in size and shed cancer cells which lodged in other areas of their body. In most states, negligent conduct which deprives the patient of the chance of cure is an injury which deserves compensation by the doctor. This legal defense is not recognized in the actual practice of medicine.  Even when the treatment is likelihood to achieve a cure is less than 50%, doctors virtually always recommend treatment, because saving the lives of even less than 50% of the patients with cancer is a worthwhile goal.

JUSTICE CAN PREVAIL

Recovering compensation in a failure to diagnose lung cancer case is always a difficult challenge. We have successfully represented many victims of this medical malpractice and obtained justice for many. I practiced as a general and thoracic surgeon for forty years and am certified by the American Board of Surgery. I have treated and cured many patients with lung cancer. As a trial lawyer since 1984, we have obtained many record verdicts and settlements for my clients in medical malpractice cases. Because of my intimate knowledge of both the law and medicine, we have been privileged to achieve justice to many victims of failure to diagnose cancer and other medical malpractice.

If you were a victim of medical malpractice, particularly involving a “failure to diagnose lung cancer,” no matter where it occurred, call me.  If we take your case, you may recover substantial compensation for your injuries and those to your family. We never charge a fee unless we recover on your behalf.  Email me, Kenneth C. Chessick, MD, JD, at KCC@Cliffordlaw.com or call me at 847-843-8044 to discuss your case.

Note: This blog is written to educate people on the principles of medical malpractice litigation. Names, dates, and facts were changes for reasons of privacy.  Every statement is an opinion based on the experience of Kenneth C. Chessick, MD, JD. Every case is different and must be evaluated on its own facts.  No guarantees are implied or made.  Copyright 2014

Whistleblowers Get Paid Well – You Can Too!

Ordinary people who report doctors or corporations which commit fraud can be paid very well for their efforts. In 2013 alone, $3.8 BILLION was recovered by the U.S. government, and the PEOPLE WHO REPORTED FRAUD WERE PAID $345 million. $2.6 BILLION recovered in 2013 was from healthcare fraud. Ordinary Americans reported unscrupulous doctors and corporations which charged for medical services and products which were never delivered.  Some who reported fraud were health care workers, including physicians, nurses, and technicians. Some were patients. This fraud on our government affects us all. I am privileged to have represented some of those patriotic Americans reported fraud and were paid well.

In one example, the fraud involved different doctors in different states who charged for services which they did not perform amounting to tens of millions of dollars.  “Dr. A” owned ten Varicose Vein clinics in Illinois, California, Massachusetts, and New York, which had slick advertisements on television, in magazines, and on the internet, promising to eliminate ugly varicose veins. Treatments and medical procedures done in doctor’s office, like procedures to treat varicose veins of the legs, are rarely scrutinized, overseen, or regulated by state agencies.  Dr. A hired other doctors and nurses to work in his ten different clinics, many of whom had little or no experience in performing the procedures in which a tube is inserted into the varicose vein under local anesthesia. A laser or similar device is then activated, which causes scarring and obliteration of the varicose vein.

Dr. A charged tens of millions of dollars for personally performing these procedures. This were fraudulent charges, because his employees, doctors and nurses, some of whom were not even licensed to practice medicine, actually did these procedures. Dr. A was not even in the state when they were performed. Medicare and insurance companies paid Dr. A millions of dollars for procedures not done at all. Most were not done by Dr. A. Not surprisingly, in many cases the procedures were negligently done, and the patients burned and injured.

The person who reported this fraud by Dr. A, known as the “whistleblower” or the “relator,” was a technician, who worked in one of Dr. A’s offices.  This courageous American contacted me, and we collected evidence of the fraud.  We filed a lawsuit and turned it over to the U.S. Attorney. The FBI investigated Dr. A’s fraud, office computers were seized, and the case successfully prosecuted, earning my client a handsome award.

In California, the whistleblower who reported the fraud to us was himself a doctor.  Over a period of years, Dr. B defrauded Medicare and insurance companies for fraudulently charging for procedures he did not do.  The whistleblower learned of the fraud because he treated the injuries caused by Dr. B.  The whistleblower learned that Dr. B was charging for procedures he did not perform.  Dr. B performed a less expensive procedure, but charged for the more expensive one. B charged for a procedure known as RF Ablation, or radio-frequency ablation, in which the Vein Clinic operator is paid approximately $300 more than if the procedure is done with a laser. The whistleblower doctor learned that Dr. B was charging for a procedure which required an device Dr. B did not possess.  The whistleblower learned of the fraud when he reviewed the insurance benefits statement of patients of Dr. B, who came to the whistleblower for treatment of Dr. B’s complications.  He verified with a manufacturer’s representative that Dr. B did not own the more expensive RF device, which was confirmed when he hired two of Dr. B’s former employees.  Over a period of years, Dr. B was paid millions of dollars for procedures he never performed. This courageous doctor contacted me. We interviewed witnesses and collected convincing evidence of the fraud. We filed a whistleblower lawsuit, and U.S. Attorney took the case. The FBI investigated Dr. B’s fraud. The case earned my client a handsome award.

The Patient Protection and Affordable Care Act of 2010 (“Affordable Care Act”), also known as ObamaCare, provides amends the False Claims Act (“FCA”) and makes it easier for whistleblowers to be paid for reporting fraud against our government.  The FCA provides that a person or corporation which knowingly submits a false claim to the government may be held liable for triple damages. Private whistleblowers, known as “relators,” may bring a suit on behalf of the government pursuant to the FCA, called a “qui tam” suit, and, if successful, share in the recovery. The relator’s portion of the recovery varies based upon the Department of Justice’s involvement in the case.  In the 2013, FCA settlements and judgments totaled $3.8 billion.  Healthcare fraud was the main source of recovery for qui tam claims, totaling $2.6 billion.

If you have knowledge of a person or corporation systematically defrauding the government, call us.  If we take your case, you may recover millions of dollars, help prevent fraud, and save the government millions of dollars.  Contact Kenneth C. Chessick, MD, JD at KCC@Cliffordlaw.com or 847-843-8044.

Can a Doctor Ethically Have Sex with His Patient?

Sexual relations between a doctor and his patient is fraught with hazards to both the patient and to the doctor, one which is created by every state which grants a license to practice medicine to selected individuals. Only a select group of men and women are licensed by the state and are given the power to prescribe medications and perform surgical operations, which enables the doctor to exert enormous control on every patient. Significant responsibilities attach to those privileges, which are sometimes abused by a minority of physicians, who become sexual predators. Such violations by the doctor are always negligent, and the physician may be liable for compensation to the innocent victim. Sexual predatory and immoral physicians are subject to disciplinary action, which may include loss of his medical license, fines, and even criminal sanctions. The following scenario is a composite of several cases upon which I represented a party, which demonstrates these points. Dr. D was one such sexual predator with an MD degree after his name who sexually and psychologically abused his patient, Ms. P.

Ms. P vs Dr. D

Ms. P was a 28 year old woman who was referred for counseling to a psychiatrist for issues of depression and low self-esteem. Prior to her encounter with Dr. D, Ms. P never was so depressed that she considered suicide. Dr. D was a well-respected, well-qualified, board certified psychiatrist, a fellow of the American Psychiatric Association., tall, and good-looking Ms. P, an attractive brunette, had a history of promiscuous sexual behavior, due in part to her emotional problems. An intelligent and articulate woman, she recognized that she needed help emotionally, because of her need to seek personal validation using her sexuality. Dr. D, fully aware of her vulnerability, gained her trust during his course of treatment. Ms. P became dependent on Dr. D and developed great affection for him, a process known as transference. Dr. D abused her trust and had sexual relations with Ms. P on multiple occasions in his office.

Dr. D’s conduct was exposed when Dr. D sent invoices to Ms. P for these office visits which included their sexual trysts. Ms. P refused to pay her doctor’s bill, and Dr. D sued Ms. P. Ms. P, tearfully clutching the legal complaint she received, making her a defendant in this lawsuit, sought legal representation. She objected to being forced to pay for Dr. D’s “medical services” which included their sexual acts. Ms. P was advised to not pay Dr. D’s bill, and a Counterclaim within the same lawsuit was filed against Dr. D. Dr. D’s insurance company assigned an attorney to defend Ms. P’s Counter Claim against Dr. D. Over the next three years, Dr. D’s attorney and insurance company vigorously presented their legal defense.

Legal Elements of Medical Negligence

Ms. P’s suing Dr. D for medical malpractice is a complex, difficult, expensive, and tedious process which requires significant legal and medical expertise and dedication. In order to prevail in a lawsuit against a physician in Illinois and in most states, Ms. P must overcome a series of procedural hurdles which are often not required in other kinds of lawsuits, including retaining numerous medical experts. Expensive medical experts are virtually always required to obtain a favorable verdict a medical negligence lawsuit, even as a Counter Claim. To file a medical negligence lawsuit, Ms. P had her medical and other records of the case reviewed by another physician, who provided a written report attesting that a “meritorious basis exists” for filing the medical negligence lawsuit and a detailed factual explanation as to the basis of the reviewing doctors’ opinion; this report was attached to the Complaint filed by Ms. P, the injured victim, even though in this case, she was a defendant in the first lawsuit. The cost for the reviewing physician’s review and report alone is expensive and can typically range from $1,000 to $2,500. In my experience, most victims of medical malpractice, cannot afford the expensive costs of litigation, which include expert fees, deposition costs, exhibits, and trial costs, and we generally advance those substantial costs, which are repaid when money is recovered for the client.

The law treats doctor and hospitals very differently than other negligent actors, and provides them with defenses and procedural barriers which do not apply to cases other than medical negligence. This makes suing a doctor more difficult, expensive, and complex. For example, Ms. P was required to file an affidavit attesting that the attorney had consulted with a physician who is qualified to opine on the subject. The failure to file the report and the attorney affidavit would be grounds to dismiss the lawsuit “with prejudice,” which means that the case is dead and cannot be revived. Reviewing physician reports and attorney affidavits are not required for filing a lawsuit against other classes of defendants in other types of cases, such as automobile accidents, home premises injuries, or breach of contract cases outside of the provision of medical or hospital services.

Ms. P’s Litigation Process

Dr. D’s attorney challenged the adequacy of the report with a “Motion to Dismiss.” Court hearings were held after written documents were filed by both sides, and Dr. D’s attempt to escape accountability based upon alleged inadequacy of the physician’s report were defeated, and his first Motion to Dismiss was denied. Dr. D’s attorneys filed more Motions to Dismiss during the next three years until resolution.

In my more than 30 years’ experience, every medical negligence lawsuit is vigorously defended, regardless of how obvious the negligence, and Ms. P’s case was no exception. In order to prove a medical negligence lawsuit, Ms. P had the burden of proving four elements: a) Dr. D had a duty to Ms. P; b) Dr. D breached his duty to Ms. P; c) Ms. P was injured; and d) Dr. D’s breach of his duty was a contributing cause to Ms. P’s injuries. Dr. D’s attorneys vigorously defended the case on b), c), and d). Dr. D’s attorneys did not dispute that sexual acts occurred while Dr. D was treating Ms. P. Ms. P was advised that regardless of how obvious the misconduct and negligence of Dr. D, his attorneys would do everything possible to drag out the process and attempt to find some technicality to avoid Dr. D’s being held responsible. Settlement or winning at trial are never a sure thing, no matter how egregious the conduct.

Written questions and answers were exchanged and depositions (live questioning under oath before a court reporter) of Ms. P and Dr. D were taken, and Dr. D’s attorney filed its second Motion to Dismiss. This attempt to escape accountability by Dr. D was based upon their claim that Ms. P was not injured. Dr. D, under oath, opined that Ms. P actually benefitted from his sexual encounters with Dr. D. Ms. P., they claimed, had emotional problems before she met Dr. D, during her treatment with Dr. D, and she had emotional problems afterwards. Dr. D’s attorneys claimed that Ms. P was therefore not injured by Dr. D’s predatory conduct.

Dr. D unabashedly testified under oath to these claims in his discovery deposition (in which verbal questions are posed and sworn answers are given), that he was not negligent, and that in his professional opinion, Dr. D provided Ms. P with the affection, touching, hugging, and reassurance she needed. Dr. D’s claimed that his having sexual relations with Ms. P was simply part of his therapeutic treatment plan. Dr. D admitted that following his treatment, Ms. P was severely depressed, despondent, and unable to form satisfactory relationships with others, which led her to a sense of isolation. He further acknowledged that she now had suicidal ideation which were not present prior to his sexual acts. Dr. D further testified that Ms. P willingly consented to the sexual relations and that he had obtained her informed consent. In Dr. D’s distorted and self-serving view, Ms. P enjoyed their sexual encounters and benefitted from his physical attention and sexual prowess. Because Ms. P benefitted, he appropriately billed her for his services and sued her when she objected and refused to pay his bills. Finally, Dr. D claimed that any injury that Ms. P suffered, including loss of trust in physicians, suicidal thoughts, and being victimized and abused, was impossible to define and could not be reduced to monetary damages. To refute these defenses by Dr. D, Ms. P was required to retain the services of a retained, board certified psychiatrist.

Illinois Medical Practice Act

Statutes exist in all states which grant the exclusive right to holders of a license to practice medicine in all of its branches. The Illinois Medical Practice Act of 1987, Professions and Occupations, 225 ILCS 60 governs the conduct of physicians. This law details just what a physician may do and chronicles very specific prohibitions as to what the physician cannot do. The list of prohibited acts is long and includes practicing medicine without a license, splitting fees with another physician, grossly overcharging a patient, fraud, advertising that health insurance deductibles will be waived, and having sex with a patient. Every transgression of the Illinois Medical Practice Act is punishable by a fine of up to $10,000 per occurrence, but may also subject the physician to suspension, revocation, and refusal to renew the physician’s license. Some transgressions of the Medical Practice Act are Class A Misdemeanors and some are even felonies. Having sex with a patient does not carry criminal sanctions.

The Illinois Medical Practice Act recognizes that Dr. D and Ms. P, are not equal in their relationship and that patients, like Ms. P, place their trust in a physician, who is often treated as an icon more than as a person. As patients, we are always disadvantaged when dealing with the doctor because of our powerful need to trust and believe the doctor. We imbue our physicians with wide ranging, and sometimes magical powers, including the ability to make a diagnosis, to provide treatment, to relieve pain, suffering, and disability, and sometimes even to prolong a life. We tell their doctor personal and sensitive information about ourselves, while not knowing much, if anything, about our doctor. We permit our doctor, a virtual stranger, to touch, probe, and fondle us, and even to put fingers and instruments in the most private bodily areas without objection. We allows our surgeon to invade our body with sharp scalpels, needles, and other traumatic instruments. After answering our doctor’s questions and his physical examination, we routinely empower our physician, while knowing little about our doctor himself. To each of us, our doctor is more a symbol of healing than a person with personal needs and foibles.

Given this imbalance of power, knowledge, and need, the law recognizes that when it comes to sexual conduct, our physician cannot obtain truly informed consent from us. We may be suffering and in pain; her cognition and judgement may be impaired by her disease process, by fear, and by medications. We may have urgent or emergent needs, which preclude obtaining second opinions. We are rarely capable of assessing physician results, complication rates, and mortality rates, since such data is neither published or otherwise available. Because the playing field is so unequal, the Illinois Medical Practice Act lists highly specific prohibitions regarding the physician’s conduct.

The Illinois Medical Practice Act (225 ILCS 60/9) mandates that the physician must be of “good moral character” and that he not engage in “conduct or activities which would constitute grounds for discipline.” The physician specifically is prohibited from engaging in “immoral conduct in the commission of any act including, but not limited to, commission of an act of sexual misconduct related to the licensee’s practice.” The penalty for such conduct is that the State of Illinois may revoke, suspend, place on probation, reprimand, refuse to issue or renew, or any other action deemed proper, including imposing fines not to exceed $10,000 for each violation. A physician who violates the Illinois Medical Practice Act has also acted negligently and has not acted like a reasonably careful doctor would act in the same or similar circumstances.

The Legal System Worked

In my experience, the major reason that a defendant doctor and his insurance company settle a case is because they fear a jury’s verdict. Dr. D repeatedly abused his position of trust and committed multiple violations of both the Illinois Medical Practice Act and the standard of care for a doctor. After forcing Mrs. P to present her witnesses, including a retained expert psychiatrist who strongly condemned the conduct of Dr. D, negotiations proceeded to a fair settlement.

Dr. D’s insurance company recognized that a jury would likely find against Dr. D, despite the fact that juries generally have been lead to believe by endless propaganda that frivolous lawsuits make doctors the defendants, an often-repeated but well publicized lie. In our experience, the history of the Law Office of Kenneth C. Chessick’s selecting meritorious cases and achieving many record verdicts and settlements in medical negligence cases, most defendants and their insurance companies conclude that going to trial against us is too risky, and most cases settle for substantial amount of money. Dr. D’s insurance company finally offered an amount of money which Mrs. P felt was acceptable and permitted her to get the psychiatric treatment she needed initially.

Illinois law required that Dr. D’s settlement be reported to the State of Illinois and disciplinary action was undertaken, so that future injuries to patients would be prevented. The settlement was also reported to the federal National Data Bank, so that if Dr. D applied for a medical license or hospital privileges in another state, this settlement and his conduct is on his record and follows him. Dr. D was sanctioned and expelled by the American Psychiatric Association. This lawsuit achieved the multiple goals of medical negligence litigation: a) Ms. P, the innocent, injured victim, received monetary compensation; b) Ms. P got the satisfaction of justice having been done, Dr. D’s outrageous conduct exposed and recognized, and emotional closure obtained; and c) future injuries to other patients were likely prevented. The legal system worked, although the process was arduous, slow, and expensive. As a result of this litigation, the world was made a safer place.

Can a doctor ethically have sexual relations with his patient? The answer is a resounding No!

If you think you have been the victim of medical malpractice, we will review your case at no cost, regardless of where you live. We only charge a fee if we recover for you. Contact the Law Office of Kenneth C. Chessick, MD at 847-843-8044 or KCC@CliffordLaw.com.