It’s no secret that Illinois is a plaintiff-friendly state. While true in several types of litigation, it is especially true for medical malpractice plaintiffs. 

One indicator of the volume of malpractice litigation in the state can be found in Medscape’s 2021 Malpractice Report. The online health information giant surveyed 4,300 physicians nationwide between May and August 2021, asking if they’d been sued for malpractice in the prior year. 

The report ranked Illinois fourth in the country for the prevalence of its doctors which reported being sued for malpractice. The top spot went to its next-door neighbor, Indiana, which was followed by New York and Pennsylvania.

Medscape noted that the prevalence of medical malpractice litigation in a state is tied to the extent of tort reforms, the number of doctors in the state, patient demographics, and legislatures’ efforts to cut down on frivolous litigation.

Illinois’ legislature and governor have been panned by groups that support tort reform, which would make it more difficult for injured parties to sue doctors and health systems, among other parties. 

In December, the American Tort Reform Foundation, ranked Cook, Madison and St. Clair Counties in fifth place on its 2021-2022 Judicial Hellholes list, a jump from 8th place the prior year. 

The group, which advocates for tort reform nationwide, places jurisdictions on the Judicial Hellholes list which it says are known for allowing innovative lawsuits, welcoming litigation tourism and expanding civil liability.

While the counties were largely listed for asbestos litigation and Illinois Biometric Information Privacy Act lawsuits, the group took swings at the Illinois General Assembly, which it deemed “one of the most plaintiff-friendly legislatures in the country” and Gov. J.B. Pritzker, whom the group asserted “supports a liability-expanding agenda to the detriment of Illinois citizens and small businesses.” 

The group also marked the 20th anniversary of the Judicial Hellholes report by compiling an Everlasting Judicial Hellholes list of repeat offenders, including Illinois on the list.  

In its rationale, it said that a jurisdiction from the state has been on each report since its inception and added that the Illinois plaintiffs’ bar is one of the most powerful in the country in terms of political influence, giving millions of dollars to lawmakers and office seekers. 

One recent example of plaintiff-friendly legislation went into effect last summer after Gov. J.B. Pritzker signed into law a bill allowing plaintiffs to collect six percent prejudgment interest on judgments they receive for their personal injury and wrongful death lawsuits. 

The law, Senate Bill 72, took effect July 1, 2021. Previously, Illinois law only allowed plaintiffs to receive nine percent interest post-judgment.

Proponents of the law, including the Illinois Trial Lawyers Association, said the law would incentivize earlier resolution of cases through settlement. 

In a column for the Chicago Daily Law Bulletin, ILTA President J. Matthew Dudley explained that under the new law, defendants are provided a set off on prejudgment interest if they make a plaintiff a written settlement offer within the first 12 months that the case is pending. If the plaintiff rejects the offer, the set off will only accrue on the difference between the highest written offer and the case’s final judgment. 

For the defense bar in Illinois, it will be key for health care clients to come to the negotiating table early. Early claims investigation is vital to that effort, including assessing the standard of care, causation and damages. 

Our team at Med Law Advisory Partners has the necessary expertise to conduct thorough medical record reviews. Our consulting nurse experts draw on their skills and experience to research the standard of care and identify any deviations from  it in the care a patient received. 

If deviations exist, the legal nurse consultant determines whether they are relevant to the facts of the case and offers defense counsel an informed opinion on it. 

Once the legal nurse consultant has weighed in on the standard of care, he or she, along with the team, investigates whether the elements of negligence have been met. Consulting nurse experts can be instrumental in proving or disproving whether any breach caused the injury claimed and the extent of any damages.

Specifically, he or she can determine the proximate cause, the result that directly produced an event that would not have otherwise occurred. In medical cases, the event is usually a physical injury or harm. The legal nurse consultant identifies the factors that directly contributed to the injury or harm from the record and other evidence.

Early claims assessment can dramatically impact the expenses in a medical negligence/malpractice case. With the new prejudgment interest law in place in Illinois, it only benefits defendants to get your ducks in a row early. 

Contact us today to learn more about how we can help in your medical malpractice matter.

It’s no secret that Illinois is a plaintiff-friendly state. While true in several types of litigation, it is especially true for medical malpractice plaintiffs. 

One indicator of the volume of malpractice litigation in the state can be found in Medscape’s 2021 Malpractice Report. The online health information giant surveyed 4,300 physicians nationwide between May and August 2021, asking if they’d been sued for malpractice in the prior year. 

The report ranked Illinois fourth in the country for the prevalence of its doctors which reported being sued for malpractice. The top spot went to its next-door neighbor, Indiana, which was followed by New York and Pennsylvania.

Medscape noted that the prevalence of medical malpractice litigation in a state is tied to the extent of tort reforms, the number of doctors in the state, patient demographics, and legislatures’ efforts to cut down on frivolous litigation.

Illinois’ legislature and governor have been panned by groups that support tort reform, which would make it more difficult for injured parties to sue doctors and health systems, among other parties. 

In December, the American Tort Reform Foundation, ranked Cook, Madison and St. Clair Counties in fifth place on its 2021-2022 Judicial Hellholes list, a jump from 8th place the prior year. 

The group, which advocates for tort reform nationwide, places jurisdictions on the Judicial Hellholes list which it says are known for allowing innovative lawsuits, welcoming litigation tourism and expanding civil liability.

While the counties were largely listed for asbestos litigation and Illinois Biometric Information Privacy Act lawsuits, the group took swings at the Illinois General Assembly, which it deemed “one of the most plaintiff-friendly legislatures in the country” and Gov. J.B. Pritzker, whom the group asserted “supports a liability-expanding agenda to the detriment of Illinois citizens and small businesses.” 

The group also marked the 20th anniversary of the Judicial Hellholes report by compiling an Everlasting Judicial Hellholes list of repeat offenders, including Illinois on the list.  

In its rationale, it said that a jurisdiction from the state has been on each report since its inception and added that the Illinois plaintiffs’ bar is one of the most powerful in the country in terms of political influence, giving millions of dollars to lawmakers and office seekers. 

One recent example of plaintiff-friendly legislation went into effect last summer after Gov. Pritzker signed into law a bill allowing plaintiffs to collect six percent prejudgment interest on judgments they receive for their personal injury and wrongful death lawsuits. 

The law, Senate Bill 72, took effect July 1, 2021. Previously, Illinois law only allowed plaintiffs to receive nine percent interest post-judgment, meaning the interest accrued following the date their judgment was entered. 

Proponents of the law, including the Illinois Trial Lawyers Association, said the law would incentivize earlier resolution of cases.  

In a column for the Chicago Daily Law Bulletin, ILTA President J. Matthew Dudley explained that under the new law, defendants are provided a set off on prejudgment interest if they make a plaintiff a written settlement offer within the first 12 months that the case is pending. If the plaintiff rejects the offer, the set off will only accrue on the difference between the highest written offer and the case’s final judgment. 

Med Law Advisory Partners works with Illinois plaintiffs on their medical malpractice matters. One way we can assist plaintiffs is through helping them verify that their claims have merit. 

Under Illinois law, plaintiffs are required to submit an affidavit with their complaint declaring that the affiant (typically, their attorney) has consulted with a healthcare professional whom they reasonably believe: 

• Is knowledgeable about the relevant issues involved in the particular action;
• Who currently or in the last six years has practiced or taught in the same area of health care or medicine that is at issue in the particular action; and
• is qualified by experience or demonstrated competence in the subject of the case.

There are several advantages to engaging Med Law Advisory Partners early in your litigation. 

First, because our consulting nurse experts offer their knowledge and talents at a cost-effective rate substantially lower than a testifying expert rate, engaging Med Law can help minimize unnecessary expenses at the beginning of the case, which is particularly important when a case is found to have little or no merit.

Our consulting nurse experts have decades of clinical experience in a wide variety of specialties and established practice in managing the nuances of medical-legal claims. 

They’re able to partner with the legal team early to quickly assess the strengths and weaknesses of a claim and inform litigation strategy — a skill not found in many testifying experts. Consulting nurse experts use data-driven processes, standard of care evaluation, and clinical judgment to identify the issues that truly matter and help the legal team determine the best path to claim resolution. 

If, and when needed, our team also can help plaintiffs work with a testifying expert who supports the established theories of liability. 

Additionally, we can help plaintiffs’ counsel pinpoint important issues in a case quickly, including assessing the extent of the plaintiff’s injuries, their level of recovery, and their overall damages. The result is a savings in time and expense for the client. 

Contact us for more information on how we help Illinois plaintiffs in their medical malpractice matters.

Ringing in the new year brings opportunities to reflect upon the past year and make resolutions to better ourselves in the new one.

In 2022, healthcare systems facing medical malpractice claims should consider adding a new resolution to their list: committing to investing in early-stage claim assessments so that they may be resolved quickly and in a cost-effective manner.

For each medical malpractice claim they face, it is crucial early on in a case to assess the standard of care, causation, and damages.

It’s not uncommon for defendants and their counsel to experience regret at the conclusion of the case for not more thoroughly evaluating these three measures at the outset. Each is important for equipping counsel with the information needed to make decisions about the case.

For example, no defendant wants to settle claims for more than they’re worth, to try a case that should never have reached a courtroom or settle when a case should be tried. For each of these scenarios, early investigation is key.

At Med Law Advisory Partners, our team has the expertise needed to conduct thorough medical record reviews. Our consulting nurse experts use their skills to research the standard of care and identify any deviations from it in the delivery of patient care.

If deviations exist, the legal nurse consultant determines whether those deviations are relevant to the facts of the case and offers counsel an informed opinion on it.

Once the legal nurse consultant has weighed in on the standard of care, he or she, along with the team, investigates whether the elements of negligence have been met. Consulting nurse experts can be instrumental in proving or disproving whether any breach caused the injury claimed and the extent of any damages.

Specifically, he or she can determine the proximate cause, the result that directly produced an event that would not have otherwise occurred. In medical cases, the event is usually a physical injury or harm. The legal nurse consultant identifies the factors that directly contributed to the injury or harm from the record and other evidence.

Early valuation of a claim can dramatically impact the expenses in a medical negligence/malpractice case. Legal nurse consultants play a key role in assessing the extent of any damages and helping value the claim, which in turn can help determine whether the parties want to settle early or proceed to trial. Early settlement often saves money for all parties involved.

In addition to claims assessments, our team may also be engaged to develop strategy on possible outcomes of a claim and provide executive consulting to the healthcare team to help minimize risk for future similar claims.

Contact us today to learn more about how early engagement can work to your benefit in your medical malpractice matter.

Pressure injuries acquired in healthcare settings are among the most common types of preventable injury, yet they remain a persistent and costly problem for providers. 

This month, officials and healthcare workers worldwide are observing the 2021 World Wide Pressure Injury Day on Nov. 18. The day’s purpose is to spotlight pressure injury prevention and educate the public about pressure injuries. 

According to the Agency for Healthcare Research and Quality, more than 2.5 million people in the U.S. develop pressure injuries each year. Of that, approximately 60,000 deaths a year are directly attributed to pressure injuries. The AHRQ estimates the cost of these injuries between $9.1 to $11.6 billion each year. 

Pressure injuries are also a major source of litigation. According to the AHRQ, more than 17,000 lawsuits are related to pressure injuries annually. It’s the second-most common claim after wrongful death, and pressure injury claims are more numerous than falls or emotional distress claims. Additionally, settlement amounts for pressure injuries are on the rise in many markets. 

Arguably, hospitals are the most frequently targeted object of healthcare litigation. As the public’s utilization of healthcare increased exponentially during the pandemic, the issue of pressure injuries has become even more acute in this setting.

Med Law Advisory works with our healthcare partners to manage more medical malpractice claims involving pressure injuries in-house. Our unique partnership helps identify areas to improve the delivery of care upstream, reducing incidents of pressure injuries within the health system, providing savings on both litigation and health care costs.

On the claim support side, our consulting nurse experts provide early assessments of pressure injury matters, enabling our health system clients to quickly value and aggressively manage claims based on merit. Our team brings unique medical-legal expertise that is highly cost-effective and cost-saving in an era where quality of care and financial stewardship are critical priorities.

In instances where it is necessary to engage outside counsel in a pressure injury claim, the legal team can hit the ground running with the early work completed by Med Law, including indexed medical records and reports, an initial opinion of liability, and areas of strategic focus. 

Med Law also provides executive consulting services to healthcare organizations. Through partnering with Med Law to manage litigation, healthcare systems can leverage the work already being completed by our consulting nurse experts to proactively identify and respond to areas of concern and integrate insights with their quality and patient safety agenda.

Med Law has the expertise to capture vital information derived from extensive data collection, discern trends, identify system defects, and advise strategic options. Additionally, our staff can partner with yours to provide staff education on litigation insights to improve patient care and defensive documentation techniques to help mitigate litigation risk. 

Contact us for more information on how we can help you respond to pressure injury-based medical malpractice claims and partner with your organization to reduce incidents of pressure injuries.

In more than half of the United States, before plaintiffs can bring a medical malpractice lawsuit, they are first required to obtain certification from a medical professional that their claims have merit.

The name of the filing varies from state to state: Some states call it a certificate of merit, while others call it an affidavit of merit, or an offer of proof. This procedural step is an outgrowth of tort reform efforts, in which state legislatures across the country have sought to limit what they deem as frivolous lawsuits.

According to the National Conference of State Legislatures, currently 28 states require the filing of a certificate of merit or its equivalent before a medical malpractice claim can proceed.

Generally, a certificate of merit must contain an opinion from a qualified medical professional stating that the professional has reviewed the plaintiff’s medical records and that, in their opinion, the defendants were more likely than not negligent in treating the plaintiff.

Who qualifies as a healthcare provider also varies from jurisdiction to jurisdiction, but in several states, nurses may complete certificates of merit. In such jurisdictions, plaintiffs’ counsel can rely on Med Law Advisory Partners’ consulting nurse experts to review and provide their opinions on the merits of a case.  

The advantages to engaging Med Law’s team at the outset of your medical malpractice litigation are numerous.

First, because our consulting nurse experts offer their knowledge and talents at a cost-effective rate substantially lower than a testifying expert rate, engaging Med Law can help minimize unnecessary expenses at the beginning of the case, which is particularly important when a case is found to have little or no merit.

Our consulting nurse experts have decades of clinical experience in a wide variety of specialties and established practice in managing the nuances of medical-legal claims.

They’re able to partner with the legal team early on to quickly assess the strengths and weaknesses of a claim and inform litigation strategy – a skill not found in many testifying experts. Consulting nurse experts use data-driven processes, standard of care evaluation, and clinical judgment to identify the issues that truly matter and help the legal team determine the best path to claim resolution.

If and when needed, they also facilitate work with a testifying expert who supports the established theories of liability.

Engaging the Med Law team early can help plaintiffs’ counsel pinpoint important issues in a case quickly, including assessing the extent of the plaintiff’s injuries, their level of recovery, and their overall damages. The result is a savings in time and expense for the client. 

While plaintiffs may view certificates of merit as an obstacle to litigation, completing the process with a consulting nurse expert is a strategic, cost-effective way to provide more clarity at an early stage about the value of the case and whether they have a likelihood of success.

Contact us for more information on how we can partner with you to assess your cases for merit and support you through the litigation process.

Most healthcare lawsuits involve a deviation from an established standard of care. To some extent, all medical centers and care facilities have policies in place to prevent the spread of infection. But are their guidelines up to date in light of recent public health issues?  Is a provider’s infection control program making all reasonable efforts to guard against pandemics or contagious diseases that are either rare or unheard of? Are processes streamlined to ensure safety when a health professional is cut with “sharps” or splashed with body fluid?

In examining a case, legal teams search for evidence that a facility has – or has not – followed the most current health guidelines to protect staff, patients, and the community at large from infectious disease. Two similar terms pop up in legal research: Universal Precautions and Standard Precautions.

To understand both these terms, attorneys and paralegals must first consider the two main types of pathogen transmission: bloodborne and airborne.

Universal Precautions

In 1983, Centers for Disease Control (CDC) published the Guideline for Isolation Precautions in Hospitals. One section, “Blood and Body Fluid Precautions,” encouraged in-hospital healthcare workers to adhere to these precautions when a patient was known or suspected to be infected with a bloodborne pathogen like HIV or Hepatitis B.

The CDC followed up with Recommendations for Prevention of HIV Transmission in Health-Care Settings in August 1987.  These 1987 recommendations encouraged the use of blood and body fluid precautions for all patients regardless of their infection status.

The extension of precautions to all patients was referred to as Universal Precautions. Under these guidelines, blood and body fluids of all patients were considered potentially infectious. Universal Precautions specified the use of gloves and face shields and avoiding exposure with needles and other instruments after use when the potential for contact with blood and bodily fluids was anticipated. The importance of frequent handwashing was at the core of these recommendations.

By 1987, a set of rules known as Body Substance Isolation (BSI) was added. It expanded the concept of personal protective equipment to include plastic aprons and covers for hair and shoes to keep all moist body substances off hair, skin, clothes, and mucous membranes. BSI went beyond simply discarding needles in puncture-resistant containers to placing them in puncture-proof containers. Hands were to be thoroughly washed before as well as after patient care and wearing gloves. Body Substance Isolation utilized hospital gowns, medical gloves, shoe covers, safety goggles, and surgical masks or N95 respirators. However, there was not a consistent interpretation or use in either BSI or universal precautions.

Standard Precautions

Times have changed since Universal Precautions were first set in place. The 21st century has seen devastating illness from Ebola virus, avian flu, West Nile virus, SARS, Zika virus and biological warfare as well as the pandemic flu from previous generations. Gloves alone do not completely protect a health professional or patient. Even diseases usually transmitted by contact can be aerosolized by saliva and respiratory secretions. Irrigating a wound can risk a splash back of fluid. Respirator masks can be contaminated. Today, public health officials must prepare against contact and airborne transmission as well as bloodborne risks.

In 1996, the Centers for Disease Control and Prevention established the term Standard Precautions. This broadened the focus on prevention, applying the principles to all patients regardless of diagnosis or presumed infection status.  These guidelines consider the risk of transmission of illness from both recognized and unrecognized sources.

In the very simplest terms, Standard Precautions involve washing hands before and after patient contact, whether or not gloves are worn. They involve wearing clean gloves when touching blood, body fluids, and contaminated items, as well as a clean, non-sterile gown and a mask, eye protection or face shield in the likely event of splashes or sprays. Soiled equipment and linen are carefully handled to prevent injuries from used equipment.

These measures are the minimum infection prevention practice applying to all patient care, regardless of the healthcare setting or whether a patient is known or suspected to carry disease.

Transmission-Based Precautions

Transmission-Based Precautions are the second tier of basic infection control and are to be used in addition to Standard Precautions for patients who may be infected or colonized with certain infections, including the virus that causes COVID-19, for which additional precautions are needed to prevent infection transmission.  Those include Contact Precautions, Droplet Precautions, and Airborne Precautions.  Each have specific guidelines and applications which must be addressed in policy and followed by staff to avoid legal ramifications.

Universal Precautions vs. Standard Precautions

In summary, universal precautions involve precautions taken with all patients, regardless of suspicion of infection, to prevent the spread of bloodborne pathogens. In an inevitable evolution, standard precautions, in contrast, are steps taken to encompass fighting the spread of airborne pathogens in situations where providers come into contact with any form of body fluid. Transmission-Based precautions are more specific and used in addition to standard precautions when certain infections are present.  The type of precaution applied in a facility is essential to most medical malpractice and healthcare-related claims. Understanding the difference is key both for healthcare providers and legal teams.

The presence or absence of a “safety culture” (also known as a safety climate) promoting appropriate infection precautions is a key component in any medical malpractice case.  Med Law’s team of nurse consultants can help pinpoint whether a provider has been in compliance and can be a strong partner in pursuing or defending a medical malpractice suit. We’d love to chat with you – contact us today to schedule a conversation.

Med Law Advisory Partner’s team of medical-legal consultants can help you pinpoint whether a provider has been in compliance and be your best foot forward in pursuing or defending a medical malpractice suit. We’d love to chat with you – contact us today to schedule a conversation. 

Founded by Alicia Davis, RN, LNCC, Med Law Advisory Partners (formerly ALN Consulting) provides resources and expertise in the areas of health care litigation and health systems improvement. Med Law Advisory Partners’ team has had the privilege of working with national and regional healthcare systems, legal firms, insurers, and senior-living operators for nearly 20 years, providing medical-legal case investigation.

Originally published July 29, 2016. Post last reviewed and updated Feb. 18, 2021.