Hughes, Tenney & Postlewait, L.L.C.
A Short Listing of Representative Cases
Rheumatology - Bloomington, McLean County, Illinois
The firm defended one of Illinois' premier rheumatologists, a Chicago-land "Top Doc" and his corporation against wrongful death and survival claims brought by the widower of a 25 year old woman on behalf of her estate including her minor son. The decedent, who selected our client as her rheumatologist, treated with him for lupus like symptoms and complaints of cramping in her mid-back, calf and right foot, fatigue, rash and generalized puritis and neck pain. Over the next several months, her neck pain resolved, she developed a cough, which improved within one month and finally presented with neck swelling, which appeared to be a swollen lymph node. The rheumatologist referred her for a complete work-up of the swollen lymph node resulting in a diagnosis of Hodgkin's lymphoma for which she underwent harsh chemotherapy (Bleomycin) and radiation therapy with a top tier oncology program in Chicago. Ultimately, the decedent succumbed to Bleomycin toxicity and radiation pneumonitis. Plaintiff claimed that the alleged failure to timely diagnose the Hodgkin's lymphoma decreased the decedent's chance of survival.
Following the presentation of Plaintiff's case, the defense team moved for and secured a directed verdict based upon the Plaintiff's expert failing to testify to a reasonable degree of medical certainty as to the decedent's chance of survival had the diagnosis been made earlier. The line of case law discussing the lost chance doctrine in Illinois helped secure a defense victory. As several Illinois courts continue to grapple with plaintiffs' burden of proving proximate cause, the law continues to evolve; albeit, a plaintiff must still prove to a reasonable degree of medical certainty the element of proximate cause.
Radiology - Springfield, Sangamon County, Illinois
The firm represented a radiologist against allegations of exacerbation of hemochromatosis due to alleged failure to diagnose on a CT of the abdomen iron deposits in the liver. The patient alleged that he had unnecessarily gone through electric shock treatment and that his hemochromatosis progressively worsened because of the failure to timely diagnose the condition.
The trial in this matter took a total of three weeks given the complexities of the medical issues and all of the subsequent care and treatment that had been provided to the patient. The defendant physician, a radiologist, had interpreted the CT of the abdomen. The defense presented testimony that the liver density on the CT was no different than the spleen, thus there was no reason to question any increase iron uptake leading to the diagnosis of hemochromatosis.
The case was tried against an experienced plaintiff attorney from Chicago. After several hours, the defense verdict was obtained. The demand in the case was $5 million, and a co-defendant had settled prior to trial for $2 million.
Urology - Peoria, Peoria County, Illinois
The firm defended a well-known urologist against alleged wrongful death due to mistreatment of a lower ureteral stone. The patient was treated with shockwave lithotripsy and thereafter developed a pulmonary embolism leading to the patient's death. The complaint specifically alleged that the treatment given to the patient was contraindicated by the manufacturer of the shockwave lithotripter, and that this misuse of the device led to the patient's death.
The case was defended based on the standard of care, as well as on causation. With respect to the standard of care, two of the top urologists in the country testified, one on behalf of the plaintiff, and one on behalf of the defendant. Their testimony demonstrated that the treatment accorded was "state of the art," or an advanced treatment. Even though the procedure had been contraindicated by the manufacturer in FDA publication, modern urological treatment embraced this use of the machine. Testimony was also presented with respect to the import of FDA Regulations, which limited use of the device.
Trial lasted three weeks, and a total of nine expert witnesses testified on a variety of issues. The case also involved a local treating physician who testified on behalf of the plaintiff and attempted to cast blame on the treating defendant urologist.
The plaintiff asked the jury for $4 million as its verdict. The decedent was a 42 year old father of three and a well-known policeman in the local community. The jury returned a not guilty verdict.
Family Practice - Decatur, Macon County, Illinois
In representation of a family practitioner, Plaintiff alleged a brachial plexus injury for failure to not strongly recommend a cesarean section since a prior delivery shoulder dystocia was encountered. The prenatal care of the mother was essentially unremarkable short of marginally elevated blood glucose levels by Accu-Chek. The blood sugars were monitored thereafter. The mother was admitted for induction of labor. It was felt that the fetus may be large but not over the eight to nine pound range. The defendant family practitioner obtained a consult with an obstetrician/gynecologist. Thus, the mother was examined by a local obstetrician-gynecologist. The obstetrician felt that the mother may be large for dates but felt this was due to an increase in amniotic fluid. During the delivery, maneuvers were utilized to expedite delivery but shoulder dystocia was encountered. The baby was born with right arm weakness.
The case was complicated by lack of documentation of the maneuvers utilized during the delivery and unfavorable testimony from the baby's treating surgeon that he believes the injuries were caused by excessive traction applied by the defendant physician during the delivery.
The plaintiff's expert has testified in numerous shoulder dystocia cases. In this particular case, he testified that even though the defendant physician had referred the mother to an OB, the OB had not been given enough information otherwise she would have undoubtedly cautioned the mother regarding the risk of a vaginal delivery.
The case resulted in trial with a defense verdict.
Internal Medicine - Danville, Vermilion County, Illinois
The complaint in this case alleged wrongful death due to improper prescription of OxyContin. The defendant physician had allegedly failed to decrease the amount of Oxycotin prescribed to the decedent for back pain management. The complaint alleged that the decedent had available excessive amounts of OxyContin, which were prescribed by the physician preoperatively thus allowing the patient the opportunity to take excessive OxyContin. An overdose resulted lead to death from respiratory and cardiac depression from high concentrations of OxyContin.
The defense contended that the defendant physician's prescription of Oxycotin was appropriate in that the physician was attempting to control the patient's unrelenting back pain. Once the decedent's back pain symptoms became unbearable, surgery was performed. After surgery, the decedent did not fill the prescription that had been written by the neurosurgeon but instead consumed numerous OxyContin tablets.
The decedent's estate was represented by a very experienced and well respected Chicago litigator. After a two-week trial and several hours of deliberation, the jury returned a verdict for the defense.
Ophthalmology - Bloomington, McLean County, Illinois
The firm defended an ophthalmologist against the alleged failure to diagnose and treat a retinal detachment. The patient was a 22 year old college student who suffered a visual field loss approximately 24 hours before she went to see the defendant. At the time of that visit, the defendant performed a full examination but was unable to determine the cause of the visual field loss. Suspecting a neurovascular injury, the physician requested an MRI. The MRI was then interpreted as negative for either cerebral vascular accident or for structural damage in the eye. The patient was then referred to another neuro-ophthalmologist who detected the presence of a retinal detachment. The detachment was repaired within 24 hours of its detection.
We defended this case on both compliance with the standard of care and lack of causation. The testimony presented on behalf of the defendant, by both treating physicians and experts, suggested that a low lying retinal detachment or one which was close to the back of the globe could be very difficult to detect on examination. It was not a breach of the standard of care to fail to detect that condition. Secondly, there was significant evidence that the time of repair in this type of detachment was not of significance in outcome. The jury returned a verdict in favor of the defendant after brief deliberation.
Internal Medicine - Carrollton, Greene County, Illinois
This case involves the allegation of failure to perform a complete physical assessment including an EKG and cardiac panel when the 58 year old male patient presented with complaints of shortness of breath. In addition, there were allegations regarding the alleged failure to obtain a cardiac consultation when a chest x-ray demonstrated an increase in cardiac prominence and the development of congested heart failure.
The patient had been treating with the defendant internist for an extended period of time and usually presented with acute-type complaints. The patient's complaints close to the time of the patient's demise dealt with symptoms that were consistent with an upper respiratory infection. A chest x-ray ordered by another physician demonstrated acute interstitial infiltrates in the right lung base and pneumonia could not be excluded. The patient presented again to the defendant internist approximately a month after being diagnosed with an upper respiratory infection. It was felt that the patient continued to have signs consistent with an upper respiratory infection so another antibiotic was prescribed. A week later, the patient was examined by the defendant internist and a subsequent chest x-ray was ordered which showed a slight interval cardiac prominence with increase in interstitial markings suspicious for the development of mild congestive heart failure. The patient was scheduled for a CT of the chest but expired before it could be performed.
An autopsy demonstrated a healing MI involving the left ventricle. There were features of both recent infarction and healing infarction of four to six weeks duration. Total occlusion of the right coronary artery was noted. An almost total obstruction of the anterior descending branch contained thrombus and severe atherosclerosis. There was total occlusion of the circumflex branch.
After two weeks of trial and five experts, three on behalf of the plaintiff and two on behalf of the defense, the jury returned a verdict in favor of the sole defendant internist.
OB/GYN - Peoria, Peoria County, Illinois
On behalf of a deceased infant, the estate brought suit against our client, an OB/GYN, for the alleged failure to properly monitor the labor of the mother after her admission to the hospital; properly review and interpret fetal monitoring strips during the labor; diagnose and treat fetal distress; and timely perform a cesarean section. The defendant obstetrician-gynecologist treated the diabetic mother throughout the pregnancy as well as referred her to maternal-fetal medicine specialist for monitoring and treatment of the diabetes.
Prior to the time of trial, the hospital who had been a co-defendant reached a settlement with the plaintiff. The case was defended on the fact that the nursing staff at the hospital had relayed the mother's condition to the defendant obstetrician. Moreover, the events leading to the newborn's demise were precipitous and as the consequence may not have been preventable.
After eight days of trial, the jury returned a verdict in favor of the defendant obstetrician.
General Surgery - Decatur, Macon County, Illinois
This case involved an alleged failure to diagnose a ruptured diaphragm. The complaint alleged that the defendant surgeon, as well co-defendant radiologists, had failed to adequately test for or diagnose a ruptured diaphragm in an automobile accident victim. The failure to diagnose that condition allegedly resulted in the death of the patient.
This case involved the surgical defendant as well as three radiological defendants. We represented the surgeon. The patient was brought to the hospital following an automobile accident. The patient was given immediate tests for internal injuries at the emergency room and then watched for a period of time. Due to the presence of chest injuries the patient was given serial chest x-rays. It was apparent from the x-rays that the patient had an elevated left hemi-diaphragm. It was not apparent from the x-rays whether or not the patient's bowel had herniated through the diaphragm.
The case was defended based upon a compliance with the standard of care and lack of causation. Specifically, the defense contended that it had provided all reasonable tests to rule out the condition, but was simply unable to do so due to the patient's condition and the nature of the injury. In addition, it was contended that the patient's overall condition was caused by the automobile accident, and not by anything done or not done by the medical team caring for the patient. Throughout the course of the medical care, the possibility of the existence of a condition of ruptured diaphragm was recognized. There simply was no objective evidence that the condition existed. The surgeon elected to treat conservatively in the absence of proof that the diaphragm was ruptured. The patient was subsequently transferred to the Mayo Clinic where the condition was diagnosed and operated upon. The patient, however, died at the Mayo Clinic.
In this case, the plaintiff had both surgical and radiological experts. At the time of trial, however, the plaintiff radiological expert recanted causation testimony and therefore the radiologists were given a directed verdict at the close of the plaintiff's case. The plaintiff's surgical expert testified against the surgeon and that case proceeded to verdict.
After ten days of testimony, the jury returned a verdict in favor of the defendant surgeon, after one hour of deliberation. The trial of the case was complicated by the fact that the decedent's daughter was a registered nurse, who throughout the trial attempted to interject testimony with respect to what she perceived to be the standard of care. While this testimony was consistently barred by the court, it was also consistently interjected by the daughter.
Plaintiff's counsel was one of the most experienced trial attorneys in downstate Illinois.
Statute of repose
We represent an anesthesiologist and his medical group who were named as respondents in discovery in a medical malpractice action filed in 2005 stemming from the 2003 death of an infant shortly after her birth. This case involves a unique issue as to whether the parents or estate of a deceased minor, suing for medical malpractice under the Wrongful Death Act and Survivor Act, is entitled to rely on the eight-year statute of repose which would normally apply to the minor if she had survived (735 ILCS 13-212(b)).
Plaintiff, as the administrator of the estate of the decedent, filed an addendum to the Complaint in January 2008, over four and a half years after the injury, wherein Plaintiffs named for the first time our clients as respondents in discovery, despite the fact that Plaintiffs had named other respondents in discovery when the case was originally filed in 2005. The trial court terminated the status of the newly named respondents in discovery finding the applicable statute of limitations had expired. The estate appealed with the issue of whether the trial court properly granted the respondent's motion to terminate their status because the statute of limitations and statute of repose as it relates to the administrator of an estate, an adult, had expired. On appeal, the estate presumed that it is entitled to rely on the tolling provisions applicable to the infant decedent as if she had lived. However, the case did not involve any claim brought by or on behalf of a minor. The Fourth District Appellate Court found the estate was not entitled to rely upon the same tolling provisions applicable to the decedent infant as if she had lived.
This is an issue of first impression in Illinois. The decision provides substantial analysis, explanation and clarification regarding the interplay between the Wrongful Death Act, Survival Act, and statutes of repose applicable to claims involving deceased minors. The ruling will provide substantial benefit to litigants and practitioners and may eliminate the need for future appeals and lawsuits. The estate has filed a petition for leave to appeal in the Illinois Supreme Court.
Certificate of Merit
The firm represented a hematologist/oncologist physician upon whom a complaint was served without the requisite physician's certificate of merit. The plaintiff was entitled to an additional 90 days after filing to obtain and file the certificate of merit. When he failed to do so, we moved to dismiss his complaint. At the hearing on that motion, plaintiff presented an unsigned certificate of merit and argued that the applicable procedural rule did not require identification of the physician certifying the meritoriousness of his complaint. We challenged that position and, in time, the judge required plaintiff to identify the physician upon whose report he was relying. We then investigated the qualifications of the certifying physician and learned that he had lost his medical license due to malfeasance. We presented that evidence to the court and the judge dismissed plaintiff's complaint with prejudice. Plaintiff appealed that ruling. The appellate court affirmed. Plaintiff petitioned for leave to appeal to the Illinois Supreme Court, which remanded the case back to the appellate court with instruction to reconsider its decision in light of an interim decision the Illinois Supreme Court had issued. Once again, the appellate court has affirmed the trial court's dismissal of Plaintiff's complaint. Plaintiff has again petitioned the Illinois Supreme Court for review.
PHYSICIAN PRACTICE ISSUES
We defended a leading central Illinois vascular surgeon against a community hospital's adverse action of suspension of privileges for allegedly abandoning a patient where the vascular surgeon had actually transferred care to a multidisciplinary care team qualified to handle the patient who suffered from an right superficial femoral artery occlusion and an ischemic right lower leg. Following two internal quality assurance meetings, the adverse action was taken. Although the suspension did not meet the 30 day requirement for reporting, a panel of our client's peers overturned the hospital's suspension, clearing the physician's record following a hearing in which we represented the physician against the hospital.
Privileges issues play an intricate role in a physician's career. Rather than reporting a minor suspension when applying for privileges or self-reporting to a professional databank, the physician preserves his clean record by defending himself against allegations of inconsistent and poor quality care.
An anesthesia group was defended against a claim brought before the Illinois Department of Human Rights alleging national origin and religious discrimination as well as retaliatory discharge. Following an evidentiary hearing before an administrative law judge, which stretched over the course of several days and included the testimony of numerous witnesses, a recommended order and decision was prepared by the administrative Law Judge finding in favor of our medical group client on all claims. The Illinois Human Rights Commission approved the Administrative Law Judge's ruling and the petitioner chose not to pursue an appeal of that decision. This was a significant victory for our client in that their former employee was not only seeking a significant amount of damages, but perhaps more importantly, we were able to vindicate the position of the medical group that the petitioner's claims were initially made in an effort to gain leverage in contract negotiations. Then, when the group called his bluff and terminated his employment rather than give in to his baseless threats, our client counted on us to defend their position. Their employees national origin and religious beliefs in no way influenced their decisions and played no part in their decision to terminate this employee when he persisted in his demands and threats in an effort to obtain favorable partnership terms.
In defending this case and refusing to give in to the petitioner's demands, we were able to show our client that the system does indeed work and that by sticking to their guns and refusing to buckle to the pressures brought to bear by claims of this nature, a fair and just result can be obtained in the end.
As part of our health care law practice, we represent physicians and their practices as the Department of Justice has launched sweeping investigations of physicians, medical groups and hospitals concerning possible false or otherwise improper claims to Medicare and/or Medicaid and possible violations of the Anti-Kickback Law (42 U.S.C. Section 1328(a)-7(b)). These actions may involve a qui tam suit in which a private citizen in the name of the U.S. Government alleges fraud against the defendants. As soon as the suit is filed, it is sealed such that the defendant may not read it. These are called whistle blower actions. We provide legal counsel to physicians and their practices when they become subject to these investigations. By extending these services, we protect physicians and their practices and aide them in responding to the attorney general's inquiries.
Dissolution of Practice:
Our expanding health care law practice includes representation of physicians in corporate litigation including but not limited to corporate dissolution and claims of breach of fiduciary duty, contract breach and actions for accounting. As with any corporation's dissolution, there is an increasing risk in cost associated with commercial litigation. We advise our clients on topics such as case evaluation, litigation avoidance and prevention, techniques for expediting and streamlining litigation and litigation management by corporations and physician shareholders to obtain the most favorable outcome for our clients effectively and efficiently.
Protecting the Integrity of Physician Licenses
The firm provides legal counsel for physicians on a range of issues including reporting requirements to the Illinois Department of Professional Regulation and the Drug Enforcement Agency in the event of abuse of the physician's controlled substance license and medical license. Several conditions may be affecting the possibility of abuse of a physician's licenses by his agents or employees including a depressed economy wherein drugs are self-prescribed under a physician's license and sold on the street for profit and the issue of drug abuse by health care professionals. With the guidance of legal counsel, physicians protect the integrity of their licenses when this abuse occurs, and we guide them through not only the reporting process but the ramifications for the agents and employees.
The Illinois legislature passed Public Act 94-677, better known as tort reform, in response to the medical malpractice crisis in Illinois. Limitations on how long a plaintiff has to file a lawsuit, caps on non-economic damages and tightening expert witness standards were the legislature's way of responding to the increase in medical malpractice litigation. Public Act 94-677 is the legislature's careful and constitutional solution to preserving access to health care in the face of rising medical liability costs. While tort reform is pending before the Illinois Supreme Court, Public Act 94-677, effective August 25, 2005, it remains in effect to the benefit of our clients.
Based upon the current requirements plaintiffs must satisfy to file a medical malpractice lawsuit, we secured the dismissal of a board certified pulmonologist based upon a deficient health care report attached to the Complaint and authored by a board certified gastroenterologist. Although both physicians are board certified internists, the Court held that the author of the certificate of merit failed to demonstrate the author's familiarity with the subject matter of the underlying litigation and how it applied to our client. Our client has been dismissed.
LONG TERM CARE
As part of our health care law practice, we represent nursing homes, most recently defending one against claims of neglect and abuse of a resident and a consulting company, which the plaintiff included as a party based on a claim of direct participant liability, even though the corporation maintained that it was not a management company and only provided consulting services to the nursing home. The subject of the claim was a 69 year old who slipped into a coma from which he never recovered while on a fluid restriction and aggressive diuretic regimen. The physician who prescribed that treatment settled with the plaintiff prior to trial. Significantly, we obtained a pre-trial ruling preventing the plaintiff from seeking punitive damages from the jury. This ruling clearly minimized the exposure his clients faced at the time of trial. Still, the plaintiff maintained that he possessed claims meriting an award of multi millions dollars. During trial, we obtained a dismissal of the corporation against whom the plaintiff claimed was a management company directing and controlling the operation of the nursing home. The jury ultimately returned a conservative award against the nursing home.
Outside the health care arena, we provide services in several other areas of law including that of trustees of a multi-million dollar trust with many national charitable beneficiaries in complex representation. This case involves the requests of a national charitable organization in administration of the trust by the trustees. By developing and implementing an innovative mechanism to regulate the demands by the beneficiaries, we protect our clients from potential liability for their actions in administration of the trust as trustees. This prevents costly and risky public litigation for all parties involved and promotes effective and efficient administration and liquidation of the trust with the beneficiaries receiving the maximum value of the trust assets.