Child Receives $6.5 Million Settlement for Birth Injury

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1 Spring 2011 Levin & Perconti: Attorneys seeking justice for victims of injury and wrongful death since 1992 PARTNERS Steven M. Levin Co-founder in 1992, lawyer since 1976 John J. Perconti Co-founder in 1992, lawyer since 1982 Susan L. Novosad Lawyer since 1986 Jeffrey E. Martin Lawyer since 1982 ASSOCIATES Michael F. Bonamarte IV Patricia L. Gifford Jordan S. Powell Margaret P. Battersby Scott J. Richard Jason E. Hammond Tina H. Dave EDITOR Jenna Bosco COPY EDITOR Marci Kayne Stock photography by Jill Carlson Representing clients who have suffered serious or catastrophic injuries. Child Receives $6.5 Million Settlement for Birth Injury Attorneys John Perconti and Patricia Gifford reached a $6.5 million settlement with Advocate Lutheran General Hospital (ALGH) in Park Ridge, Ill., and a family practitioner for a young girl who suffered serious brain damage at birth. As a result of her injury, Yadira Oceguera, now 10, lives with debilitating cerebral palsy and moderate mental retardation. On Sept. 26, 2000, around 3:30 a.m., Denice Cisneros, formerly of Chicago, went to ALGH in labor after an uncomplicated pregnancy. It was her first pregnancy and she expected a normal delivery based upon what her physician told her. Her labor and delivery was managed by a family practitioner who was covering for Denice s regular family doctor. During the second stage of labor, this physician and a nurse assisting in Denice s labor and delivery both failed to determine why the baby was not descending despite adequate contractions and good pushing efforts. The physician failed to determine the position of the baby s head, or consider cephalopelvic disproportion, a condition where a baby s head will not fit through its mother s birth canal. The physician and nurse also misread fetal monitoring strips and administered Pitocin, a medication used to induce labor, although Denice s contractions were normal. During the four-hour second stage of labor, Yadira did not descend, so an obstetrician was consulted. This obstetrician witnessed decelerations on the fetal heart rate monitoring strips. Decelerations are temporary slowings of an unborn baby s heart, and can indicate that the child is not getting enough oxygen. Despite these findings, the obstetrician did not order an emergency Cesarean section. For 30 minutes, Yadira had several more decelerations before experiencing a substantial slowing of her heart rate for over 15 minutes. When the obstetrician returned from performing another delivery, he 325 North LaSalle Street, Suite 450 Chicago, Illinois Yadira (back right) and her siblings recognized the problem and ordered an immediate Cesarean. However, the anesthesiologist on duty administered the wrong kind of anesthesia and Denice was not properly anesthetized for emergent surgery. As a result, staff resorted to holding Denice s arms and legs down as she struggled in pain while the first incisions were made. Yadira was delivered by Cesarean section, but suffered brain damage as a result of being oxygen deprived for over 15 minutes. This damage caused cerebral palsy, a condition that can lead to cognitive and visual impairments, motor skill deficits, learning disabilities and difficulties communicating. Today, Yadira has difficulty walking independently because cells were damaged in the area of her brain that controls her muscle movement. Her family uses an oversized stroller when taking her out, and she will most likely need a wheeled assistive device when she gets older. She also needs assistance with activities of daily living. Due to Yadira s condition, she has a difficult time learning, but nonetheless makes the effort to do well in school, said Denice. She shows the same determination in activities outside of school, too. She can t run or play ball like a normal child, and though she struggles, she still tries her hardest. (312) FAX (312) Toll free (877) Continued on page 2

2 Yadira s birth injury also affected the lives of her parents and siblings, but the family remains close and everyone pitches in to help. We stand united because of Yadira s disability, said Denice. We never want her to feel as though she is left out or is not accepted by society. Yadira s family expected to have a healthy baby girl, said John Perconti. Unfortunately, the failures of an inexperienced family practitioner practicing obstetrics and an inexperienced nurse caused a relatively common labor abnormality to go unrecognized, untreated and undiagnosed until it was too late. Perconti added, The baby was not going to deliver vaginally given a complete arrest of descent for almost five hours. Denice s caregivers should have recognized this and performed a Cesarean section long before Yadira became oxygen deprived. If so, she would be a healthy little girl today. The settlement was reached during mediation and approved in the Circuit Court of Cook County by the Honorable Judge Elizabeth Budzinski. The compensation awarded to the family will allow them to provide Yadira with ongoing care and medical treatment throughout her lifetime. When a child is injured at birth, the outcomes are often life-altering. Many victims of birth injury cannot live independently, and need assistance with everyday tasks. Due to learning disabilities, they require specialized education and often do not enter the workplace. For these reasons, families seek compensation for medical mistakes made at birth. Birth injuries are costly, and without the help of the civil justice system, it is often impossible for families to provide their injured loved one with the medical care and caretaking they need and deserve. My husband and I are grateful for the work that John and Patricia did for our family, said Denice. We are happy that Yadira s settlement will allow her to receive the necessary physical and occupational therapy to function at her highest potential. $750,000 Settlement for Wrongful Death of 20-month-old Girl 2 In December 2010, Jeffrey Martin helped an Illinois mother obtain a $750,000 settlement for the death of her daughter. The victim was just 20 months old when she died at a central Illinois hospital. Our client s daughter was born with congenital muscular dystrophy, a disorder that causes deterioration of the muscles and can lead to muscle atrophy, weakness, deformity and disability. After her birth, our client s daughter endured a number of hospital stays until she was released home on a ventilator with a tracheostomy, a tube to help keep her airway open. Because she was on a ventilator, she required a pulse monitor and an apnea monitor to detect pauses in her breathing. Her mother was the girl s primary caregiver, but her extended family also played a large part in her care. Attorney Jeffrey Martin On August 22, 2006, the child was admitted into the hospital s intensive care unit (ICU). She had recently begun a ventilator weaning schedule and over a few days, staff weaned her off the ventilator for several hours at a time. Despite this progress, a nurse caring for our client s daughter documented that the child still required frequent suctioning because her tracheostomy tube had a tendency to plug up with mucous. Our client s family witnessed ICU nursing staff occasionally removing her daughter s monitoring leads, stating that it was difficult to keep them in their proper position because she was so active. The child s grandfather prophetically warned the staff that you need to keep the monitors on because you never know. On August 26, a nurse asked one of the child s physicians if she could discontinue the electronic monitoring because she was concerned that the child could get tangled in her telemetry cords. In response to the nurse s request, the physician issued an order to discontinue electronic monitoring, with orders to closely monitor the child s oxygen saturation, respiration rate and vital signs. On the afternoon of August 27, our client visited her daughter and was excited to see her sitting up in a highchair for the first time, but later that evening, the family s worst fears were realized. A nurse found our client s daughter unresponsive in her hospital bed, and her skin was blue. Staff attempted to resuscitate her, but she did not regain consciousness. A mucous plug cut off oxygen to her brain, and she died several days later from severe brain damage. The family s lawsuit alleged that the staff took our client s daughter off all appropriate electronic monitoring equipment and failed to monitor her oxygen levels or heart rate. Staff also failed to adequately clean and suction her tracheostomy tube, causing the blockage that led to her death. Our client s daughter likely experienced the mucous plug and suffered respiratory failure several minutes before anyone was aware of the situation, explained Jeffrey. This would not have occurred if her monitors were connected and alarmed properly." This young girl may not have had the life expectancy of a healthy 20-month-old, but her life was undeniably cut short by the mistakes of the ICU staff, Jeffrey continued. Our client devoted her life to caring for her daughter, and gave her the most normal life she could under the circumstances, only to lose her daughter to the careless errors of her hospital caregivers. What made this even more egregious was the fact that these mistakes occurred in an ICU where the care was supposed to be intensive. Read more about the medical malpractice cases we handle on our website: or visit our Illinois Medical Malpractice Blog for daily news updates: medicalmalpractice.levinperconti.com

3 'Know Before You Go' When Signing Nursing Home Admission Contracts Our attorneys review many contracts between nursing homes and prospective residents. Susan Novosad advises clients, friends and fellow attorneys to read these contracts carefully. Generally, a nursing home admission contract sets forth a resident s rights, the responsibilities of the nursing home, payments and grievance processes, explained Susan. These contracts may include clauses where residents agree to give up their right to file a lawsuit against the nursing home. If a resident is injured, the contract may limit what he or she may recover with regard to damages or in what county a lawsuit must be filed. Finding a nursing home for a loved one can be an emotional process, but it is important not to let your emotions cloud your judgment, advised Susan. An unknowing consumer who does not carefully review a nursing home contract risks potentially waiving some of his or her legal rights. We urge nursing home residents, their family members and loved ones to carefully review nursing home admission documents. If you have any questions about a portion of the agreement, do not sign it until you have spoken with an attorney. Attorney Susan Novosad Bureau County Medical Malpractice Case Settled for $500,000 Steven Levin and Michael Bonamarte settled a medical malpractice case against two Bureau County physicians for $500,000 on behalf of a Princeton, Ill. woman. Our client s doctors failed to diagnose and properly treat her peripheral vascular disease (PVD). PVD, or hardening of the arteries, is a condition that decreases blood flow to a person s legs and feet. In April 2005, our client went to a local emergency room complaining of a serious blister on her third left toe. The toe was necrotic and needed to be amputated. Having no good explanation for the problem, her doctors should have performed simple tests to determine if circulatory problems were the cause, particularly because our client was a long-time smoker who had a family history of PVD. Seven months later, our client returned to the emergency room and three more of her toes required amputation. Finally, the surgeon ordered tests that revealed our client had PVD and there was little blood flow in her legs. As a result of the delay in diagnosis, our client s left leg was amputated. The physicians who cared for our client failed to address her symptoms, and her disease went untreated for seven months, said Steven Levin. We believe that if her PVD had been diagnosed earlier, she would have had surgery, made lifestyle changes to combat the effects of the disease, and kept her left leg. An attorney in central Illinois referred this case to Levin & Perconti. Our attorneys filed the lawsuit in 2007 in Bureau County, and reached a $500,000 settlement in Follow us on Facebook and Twitter! Facebook.com/levinperconti Twitter.com/Illinoisinjury 3 Founding partners Steven Levin and John Perconti

4 Taking on Nursing Homes with Inadequate Liability Insurance Did you know that nursing homes in Illinois are not required by law to carry any or sufficient liability insurance? Throughout our practice, we have handled cases against facilities with inadequate Marie Johnson coverage and those operating with no liability insurance. Our attorneys recently settled three separate nursing home pressure sore cases against Claremont Rehab and Living Center in Buffalo Grove, Ill. During the course of these lawsuits, we learned that the facility had an inadequate insurance policy that was slowly dwindling. Armed with this knowledge, we worked diligently to resolve these cases for fair amounts before the insurance policy ran out. Our clients lived at Claremont during a nine-month period from December 2006 to August Substandard care was prevalent, and each client developed serious pressure sores during their stays. Irving*, 89, was admitted to Claremont for short-term rehabilitation after undergoing elective hip replacement surgery in December Upon admission, his family expected him to make a full recovery. He went into Claremont for therapy after his surgery, recalled Irving s son. His doctors anticipated his recovery would last four to five weeks and then he could return home. He was admitted to Claremont with a stage II sacral pressure sore, but nursing staff never developed a care plan to address Irving s risk for further skin breakdown. Irving s pressure sore grew, but staff did not follow his physician s orders to treat the sore. One of us was there to visit every day, and my father was always in his wheelchair, said his son. We never saw them reposition him. He often complained that his back hurt, but we never saw them examine him, so we assumed it was muscular pain. Irving s pressure sore progressed to a stage IV wound and he was hospitalized on Feb. 20, In the following months, he endured more hospitalizations and several surgeries. However, his condition worsened and he passed away on July 3, The nursing home was later cited by the Illinois Department of Public Health. John Perconti and Patricia Gifford resolved Irving s case for $500,000. In April, Marie Johnson, 78, was also admitted to Claremont for rehabilitation. She suffered from paraplegia that made her at high risk for pressure sores because she could not reposition herself in bed or in a wheelchair. Throughout her three-month stay, Marie developed a pressure sore, but staff did not notify her physician or develop a care plan for Marie, causing her sore to rapidly worsen. She was 4 discharged from Claremont on July 25, 2007 with a deep and infected stage IV pressure sore. The infection also spread to Marie s bones and blood. The sore was surgically repaired, but took over four months to heal. Steven Levin and Jordan Powell settled Marie s case for $400,000. During the same time period, Beyla Rubinshteyn, 89, entered Claremont in June 2007 for continued dialysis treatment after a stay at Northwest Community Hospital. Prior to her stay, Beyla lived at home with her son Boris Rubinstein. When she was admitted, staff did not create a plan to address skin integrity. Every day I visited and found her lying in bed in the same position, recalled Beyla s son Victor Rubinstein. They never turned her unless we demanded it. The hospital gave her heel protectors to prevent pressure sores, but the nursing home never used them until weeks after she was admitted, and only after we insisted. Beyla began to show signs of skin breakdown on July 17 and was later assessed with a stage II pressure sore on her tailbone, along with sores on both heels. Even after she developed pressure sores, the staff did nothing to treat them, said Victor. When my mother died, her attending doctor told me that she ordered wound care and medications to treat my mother s pressure sores, but the facility never responded or carried out these orders. Staff also neglected to notify Beyla s physician when her wounds worsened, and her sore on her coccyx became infected. On August 20, she was transferred to a local hospital. The infection from her pressure sores had spread throughout her body, and she died 13 hours later as a result of this blood infection. Her family filed a lawsuit against Claremont in late 2008, and Steven Levin and Jordan Powell settled their case for $200,000. Clearly, there were issues at Claremont during the time period that Irving, Marie and Beyla lived there, said partner John Perconti. Despite our clients risks for developing pressure sores, the facility failed to follow the standard of care to prevent them from developing devastating wounds. Despite patterns of substandard care, the nursing home did not have an adequate insurance policy to compensate victims. Through the discovery process, our attorneys learned that the nursing home had an insurance policy with a $3 million aggregate. This meant that the total amount of available insurance coverage for a 15-month period was $3 million. Beyla Rubinshteyn We also found out that there were 10 pending claims against the nursing home during the applicable time period and that the insurance company had already resolved five claims for a total of $835,000, said attorney Jordan Powell. This left just $2.165 million to cover 10 outstanding claims. Levin & Perconti successfully recovered a total of $1.1 million, or over a third of the aggregate policy, for our three clients, proving that even in difficult situations our attorneys maximize results for our clients. It takes experience to understand how to properly handle cases against nursing homes with little or no insurance, said partner Steve Levin. "In each of these cases, we recovered fair compensation for our clients despite being faced with a depleting insurance policy." Our clients families were devastated because of the nursing home s inexcusable negligence. These were not isolated incidents of neglect, but rather reveal a pattern of substandard care, said John Perconti. Judging from the fact that Claremont had other pending lawsuits against it, our clients were not the only residents to suffer. Many nursing home owners take the easy way out and choose inadequate liability insurance coverage to increase their profits, Steve explained. Or, their compliance history is so bad that they cannot afford to adequately cover their facilities because their insurance rates are too high. Without insurance, these facilities cannot be held accountable when residents are injured or die because of substandard care. Said Marie Johnson s daughter Kim Stahulak, When my mother was ready to leave the hospital, we had limited time to choose a nursing home. We were naïve and did not know what to look for or what questions to ask when we chose Claremont. Families should educate themselves ahead of time so they are prepared in the event that a loved one needs to enter a nursing home. *Client s last name omitted at the family s request What can you do to protect yourself and your loved ones? We encourage you to write your Illinois lawmakers to ask them to introduce legislation that would require facilities in Illinois to carry adequate liability insurance. Until then, always ask about a facility s insurance coverage when researching long-term care options. When you visit a nursing home, ask the administrator or a long-term care ombudsman for this information. Taking action early can help to ensure that you will be able to seek justice in the event that a loved one is injured or killed as a result of abuse or neglect.

5 Recent Settlements J.A. for M.T. v. an Undisclosed Nursing Home $450,000 nursing home neglect settlement for a 93-year-old client who suffered a fall due to the facility s negligence and sustained a hip fracture, which required surgery. Although our client was immobile and at risk for pressure sores, staff allowed him to develop several pressure sores that deteriorated. Our client suffered significant pain from the hip fracture and pressure sores, and died from pneumonia soon after his decline. L.C. v. Undisclosed Village $225,000 premises liability settlement on behalf of our 79-year-old client who tripped and fell on an uneven sidewalk, suffering a shoulder fracture, which necessitated the surgical insertion of a shoulder prosthesis. Prior to our client s fall, other residents had asked the defendant municipality to repair the sidewalk and nearby sidewalks in the subdivision, but the village failed to make the repairs to this sidewalk. L.T. v. a Chicago-area Hospital $200,000 medical malpractice settlement on behalf of a 68-year-old client who suffered a pelvic fracture in a fall at the hospital despite her known risk for falls. No surgery was needed. Recent Filings H.K. v. Walgreens (Prescription Medication Error) Our client was prescribed 5.0 mg Prednisone; however, the pharmacy filled the prescription with 50 mg tablets of the steroid and refilled it with the incorrect dosage for one year. Because he ingested excessive amounts of the medication, he suffered a significant loss in bone mass. E.P. v. American Tugs et al. (Jones Act) Our client was working as a welder on a boat on the Mississippi River in Alton, Ill. and suffered serious personal injuries, including quadriplegia, in an explosion onboard the vessel. The defendant boat owners failed to provide our client with a safe work environment and failed to provide him with safe and adequate equipment. R.R. v. W.S. et al. (Trucking Accident) The defendant truck driver failed to bring his semi-truck to a stop at the intersection in Ford County and violently collided with the rear of our client s car. Our client suffered permanent injuries as a result of the truck driver s failure to control his vehicle. Update on DePuy Hip Replacement Recall Lawsuits Levin & Perconti is representing clients nationwide in DePuy ASR (Articular Surface Replacement) hip implant recall cases. In August 2010, DePuy Orthopaedics, a division of Johnson & Johnson, recalled their ASR hip replacement systems. The company estimates that between 2003 and 2009, over 90,000 patients internationally received these devices during hip replacement surgery. After the recall, DePuy sent letters to hip replacement recipients, asking them to release their medical records to the company. Upon John Perconti s recommendation, If you are contacted by DePuy, Johnson & Johnson or a company called Broadspire, we suggest that you speak to an attorney before signing any documents or talking to any representatives of any of those companies, so you do not waive any of your legal rights. The recall was sparked because of the high failure rate of the ASR systems. As many as one in eight recipients require a revision surgery to replace the faulty hip implant. Common problems among DePuy hip recipients include: pain fracturing or loosening dislocation or detachment from the bone grinding and popping swelling and inflammation metal toxicity Metal toxicity is caused by the release of metals into the bloodstream due to metal-on-metal grinding. Because of this, many DePuy implant recipients may be faced with health issues associated with metal poisoning in the future, along with damage to the surrounding muscle and tissue. Anyone who received a recalled DePuy hip implant may be eligible to receive compensation for these defective products, even if they have not yet experienced pain or symptoms, said attorney Steven Levin. Added Michael Bonamarte, For DePuy hip recipients, this is a very stressful time, and many recipients are now faced with stress and worry from not knowing whether their hip will fail them in the future. We are here to make sure that all DePuy hip recipients will be fairly compensated for the faulty manufacturing of these devices and the problems they have caused. Questions about the DePuy ASR hip replacement recall? Contact us: (toll-free) [email protected] 5

6 325 North LaSalle Street, Suite 450 Chicago, Illinois Phone: (312) Seeking justice for victims of injury and wrongful death Levin & Perconti Attorney News Michael Bonamarte spoke on The Importance of Serving Vulnerable Populations at the Lake County Bar Association Meeting on Sept. 22, 2010, in Waukegan, Ill. John Perconti, Steven Levin and Jeff Martin were selected as Illinois Super Lawyers for Michael Bonamarte was named as an Illinois Rising Star for Steven Levin presented Using the Legal System to Incite Change in Nursing Homes on October 12 at the 7th Annual Illinois Pioneer Coalition Summit in Springfield, Ill. On Jan. 21, 2011, Jordan Powell judged the national finals of the American Bar Association s Law Student Division Arbitration Competition held in Chicago. On October 20, Steven Levin presented on Protecting Residents Rights Through Litigation at the National Consumer Voice for Quality Long-term Care s 35th Annual Meeting and Conference in Orlando, Fla. Steven was also named to the Consumer Voice s Leadership Council. Michael Bonamarte attended the 360 Advocacy Institute s DePuy Hip Litigation Summit on October 22 and 23 in Chicago. Jeffrey Martin spoke at the Illinois Bar s swearing-in ceremony at McCormick Place West in Chicago on November 4. Jeff s daughter was one of over 1,600 new attorneys admitted, and Jeff and three other parent-attorneys seconded the motion to have the group sworn in as members of the Illinois Bar. Steven Levin and Michael Bonamarte contributed a chapter, titled Plaintiff s Perspective, to the Illinois Institute for Continuing Legal Education s Long-term Care Litigation 2011 Supplement. On November 16, Steven Levin presented Personal Injury and Wrongful Death Litigation for Elder Clients and Long-term Care Residents at the Illinois Institute for Continuing Legal Education s 6th Annual Elder Law Short Course in Lisle, Ill. Steven Levin and Michael Bonamarte were selected by the Illinois Trial Lawyers Association to file an amicus curiae brief on behalf of the organization in the Illinois Supreme Court. The brief argued that punitive damages, a form of punishment and deterrence, should be allowed in nursing home death cases when the conduct of the nursing home is egregious. They were subsequently asked to comment on the brief for the Chicago Daily Law Bulletin. On January 27, Jeffrey Martin participated in training for the Chicago Volunteer Legal Services (CVLS) Foreclosure Mediation program. This program helps people with mortgage foreclosures by representing them in mediations. Last year alone, there were over 47,000 foreclosures filed in Cook County, and this program seeks to help some of those borrowers reach a satisfactory solution to their foreclosure. Levin & Perconti sponsored the Decalogue Society of Lawyers Reception Honoring the Judiciary on February 15 at the Metro Crowne Plaza in Chicago. Jordan Powell discussed the challenges of handling cases against nursing homes that carry inadequate or no liability insurance coverage at the Chicago Bar Association s Tort Litigation Seminar on March 3. John Perconti, Susan Novosad and Patricia Gifford judged the Dean F. Herzog Moot Court Competition at the John Marshall Law School on March 7. ADVERTISING MATERIAL DISCLAIMER: This newsletter and any information contained herein are intended for advertising and informational purposes only and should not be construed as legal advice.