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The Lost Chance Doctrine in Medical Negligence Cases The lost chance doctrine is a legal theory that allows plaintiffs to recover damages in cases where a healthcare provider's negligence has decreased their chances of a better outcome, even if the negligence did not directly cause the harm. This doctrine has been recognized in various states, including Illinois, and has become an important tool for plaintiffs seeking compensation for medical malpractice. In Illinois, the lost chance doctrine was first recognized in the landmark case of Holton v. Memorial Hospital, where the Illinois Supreme Court held that a plaintiff could recover damages for the loss of a chance of a better outcome, even if the negligence did not directly cause the harm. In that case, the plaintiff alleged that the defendant hospital's delay in diagnosing her spinal cord compression caused by osteomyelitis (infection of the bone) had decreased her chances of not suffering paralysis. The court held that the plaintiff could recover damages for the lost chance of a better outcome. Since the Holton case, the lost chance doctrine has been applied in numerous cases in Illinois. In order to recover damages under the lost chance doctrine, a plaintiff must prove that the healthcare provider's negligence decreased their chances of a better outcome, and that the decreased chances were a substantial factor in causing harm. This can be a complex legal issue, as it requires a careful analysis of the evidence and expert testimony. One of the key benefits of the lost chance doctrine is that it allows plaintiffs to recover damages even in cases where the harm is uncertain or difficult to prove. For example, in cases of delayed diagnosis or misdiagnosis, it can be challenging to prove that the negligence directly caused the harm. The lost chance doctrine is not a separate cause of action but can be used as a powerful tool in medical negligence cases where it is applicable. Overall, the lost chance doctrine is an important legal concept for plaintiffs seeking compensation for medical malpractice in Illinois. It allows plaintiffs to recover damages for the loss of a chance of a better outcome. However, it is important for plaintiffs to consult with an experienced medical malpractice attorney to determine whether the lost chance doctrine applies to their case and to navigate the complex legal issues involved.

Medical Negligence Types of Damages By Hon. James M. McGing (ret.) Medical malpractice occurs when a healthcare professional fails to provide the appropriate standard of care, resulting in harm or injury to a patient. In Illinois, like in other states, victims of medical malpractice have the right to seek compensation for the damages they have suffered. These damages can be categorized into several types, each with its own considerations and legal principles. 1. Economic Damages: Economic damages refer to the financial losses incurred by the victim as a result of the medical malpractice. These damages are quantifiable and can be easily calculated. They include: - Medical expenses: This includes all the costs related to the victim's medical treatment, such as hospital bills, surgeries, medications, rehabilitation, and therapy. - Lost wages: If the victim is unable to work due to the injuries caused by medical malpractice, they may be entitled to compensation for the wages they have lost during their recovery period. - Future earning capacity: In cases where the victim's injuries result in long-term or permanent disability, they may be awarded damages to compensate for the loss of future earning capacity. - Cost of home modifications and assistive devices: If the victim requires modifications to their home or the use of assistive devices, such as wheelchairs or prosthetics, they may be entitled to compensation for these expenses.

Nursing Home Liability for Residents’ Abuse or Neglect. Under the Nursing Home Care Act, long-term care facilities can be held liable for the abuse or neglect of persons under their care. “Facility" or "long-term care facility" means a private home, institution, building, residence, or any other place, whether operated for profit or not, or a county home for the infirm and chronically ill or any similar institution operated by a political subdivision of the State of Illinois, which provides, through its ownership or management, personal care, sheltered care or nursing for 3 or more persons, not related to the applicant or owner by blood or marriage. It includes skilled nursing facilities and intermediate care facilities as those terms are defined in the federal Social Security Act. It also includes homes, institutions, or other places operated by or under the authority of the Illinois Department of Veterans' Affairs. What is Abuse and what is Neglect under Illinois Law? “Abuse” means any physical or mental injury or sexual assault inflicted on a resident other than by accidental means in a facility. “Neglect” means a facility's failure to provide, or willful withholding of, adequate medical care, mental health treatment, psychiatric rehabilitation, personal care, or assistance with activities of daily living that is necessary to avoid physical harm, mental anguish, or mental illness of a resident. If you suspect a family member or other person has been abused or neglected, call Former Judge James M. McGing (773) 467-8000 and speak to him today. Former Judge James M. McGing served as a Supervising Judge in the Law Division of the Circuit Court of Cook County and is a partner in the Miller & McGing Law Firm.

Workers Continue to Develop Mesothelioma in the U.S. Plain and simple, mesothelioma is a cancer caused by asbestos. According to the Mayo Clinic, Malignant mesothelioma is a type of cancer that occurs in the thin layer of tissue that covers the majority of your internal organs (mesothelium) often becoming trapped in our lungs. Approximately 3,000 people are diagnosed with mesothelioma each year in the United States, It often takes decades for the exposure to turn into mesothelioma. Asbestos consist of naturally occurring minerals made up of heat-resistant fibers. It was used in thousands of consumer products both before and after the dangers of asbestos were known. Asbestos exposure can cause mesothelioma, lung cancer and other cancers. All mesothelioma cases are caused by asbestos. Who can be held liable? Asbestos manufacturers knew asbestos was deadly and many failed to protect workers and their loved ones. Asbestos exposure commonly occurs when working with the deadly mineral, but companies are liable for secondhand exposure as well and can be held liable to victims and their family members who also became exposed to asbestos that was brought home on work clothing, etc. If you or loved one has been diagnosed with Mesothelioma, contact our office today and speak with former Judge James M. McGing at (773) 467-8000.

NURSING HOMES AND ARBITRATION By Hon. James M. McGing (ret’d) This month the United States Supreme Court refused to hear an appeal of the Centers for Medicare & Medicaid Services’ (CMS) rule that prohibits Nursing Homes from requiring residents to sign arbitration agreements as a condition of admission. That leaves in place the rule and Nursing Homes can no longer require a resident or their representative to sign it. However, the Nursing Homes can ask potential residents if they would voluntarily sign it after clearly explaining it and further that it is not mandatory that they agree to sign it. CMS is part of the U.S. Department of Health & Human Services. CMS explains in its rules that “Concerns have been raised about the fairness and transparency related to both the means by which these agreements are created and the fairness of the arbitration process themselves…” and many patients are transferred directly from hospitals in ill-health and are not in a position to engage in meaningful negotiation. Long term health facilities have often required the signing of these arbitration agreements before admittance. The Illinois Appellate Court on September 30th, 2022, in the case of Calusinski v. Alden-Poplar Creek Rehabilitation & Health Care Center, Inc., 2022 IL App (1st) 220508 weighed in on this issue when it affirmed a decision by a Cook County Circuit Court Judge finding that in a Cook County case, the arbitration agreement was not enforceable as a matter of law because it was substantively unconscionable. Ms. Calusinki’s son executed the paperwork under a power of attorney. She eventually died at the facility and a lawsuit was filed alleging Wrongful Death and a Survival Action based upon Negligence. The arbitration agreement required any claims or disputes brought by plaintiff arising out of his mother’s care at the nursing home to be resolved through mediation and/or arbitration. Yet, the agreement permitted the nursing home to litigate claims against plaintiff for nonpayment of nursing home costs in a court of law. The Circuit Court Judge ruled that the parties’ arbitration agreement was substantively unconscionable, and therefore unenforceable, because it waived plaintiff’s right to statutory attorney fees without adequate consideration. The Appellate Court agreed in a unanimous opinion, finding that “an arbitration agreement is substantively unconscionable, where as here, the contract terms are so one-sided that they oppress or unfairly surprise an innocent party and there is an overall imbalance in the obligations and rights imposed by the bargain, as well as significant cost-price disparity. If an arbitration agreement is unconscionable, it is unenforceable.” If you or a loved one has been abused or neglected at a Nursing Home, call Miller McGing Law today at (773) 467-8000 and speak with former Supervising Judge James M. McGing.