Photo of Litigation Blog Patrick F. Sullivan psullivan@smsm.com
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Patrick Sullivan is an associate in the firm’s Chicago office focusing his practice on complex litigation. He is an accomplished litigator with extensive experience in …

Showing 9 posts by Patrick F. Sullivan.

The Death of Impartiality - "Dr. Death," Reptilian Tactics, and Fighting Juror Bias

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This summer saw the release of Dr. Death, a crime miniseries telling the “true story” dramatization of neurosurgeon Dr. Christopher Duntsch – who is currently serving a life sentence in the Texas Department of Criminal Justice prison system for paralyzing one of his patients during a spinal surgery. In three years of practice as a neurosurgeon, Duntsch gained a reputation for arrogance and gross negligence in the operating room, eventually leading to the suspension of his medical license only after he had caused serious and permanent harm to dozens of patients. Overarching the series is the core question of how a doctor like Duntsch could continue to practice for so long? The writers point the finger at a few different targets, from Texas tort reform legislation that purportedly left Duntsch’s patients powerless to for-profit medical institutions that allegedly tried to quiet word of his misconduct for their own gain. Ultimately, the series pushes the theme that our medical system is immoral and broken – even ending with the ominous warning “this will happen again” – but for lawyers defending medical professionals the series offers a different warning – one of reptilian tactics and unfair bias against medical professionals. More »

Placebo Effect: How Illinois’ COVID Tort Immunity Fails to Immunize Medical Professionals and the Healthcare Industry

At a time when COVID-19 vaccinations are on the rise and there is renewed focus on reopening the state, Illinois’ attempt to immunize its medical professionals and healthcare industry from COVID-19 related civil liability ironically may be failing. Over the last fifteen months, medical professionals have strived tirelessly to provide care to their patients while protecting them from the unprecedented circumstances created by a novel and deadly virus. Recognizing the risks faced by medical professionals, many states implemented immunity provisions to protect healthcare workers from civil liability, with the goal of ensuring that medical professionals and their facilities could not be sued based upon a hindsight argument. In Illinois, Governor J.B. Pritzker provided civil immunity for medical professionals and facilities as part of his Executive Order 2020-19 dated April 1, 2020. The order states that medical professionals and facilities “shall be immune from civil liability for any injury or death alleged to have been caused by any act or omission” of the care provider or facility in “rendering assistance” to the State in its efforts to prevent the spread of COVID-19.[1] The Executive Order discusses various ways in which facilities can “render assistance” to the state and provides an immunity exemption for injuries caused by willful and wanton conduct. The immunity provision appears to be a direct and unequivocal limit on medical professional liability; however, Illinois plaintiffs’ attorneys have already begun to chip away at the meaning of the executive order, transitioning it from an immunity provision to just another tool to attack medical professionals through a reasonable cause analysis. More »

Green Development Risks

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The emerging market of sustainable, or “green,” construction is attractive to buyers and developers as both a means of conservation and an effective marketing tool. Many buyers, contractors, and subcontractors are now attempting to enact green construction projects through various certification processes, which substantiate a structure as “green”. The LEED (“Leadership in Energy and Environmental Design”) certification, for example, is an internationally recognized verification that a development was designed and built using strategies aimed at improving performance in energy savings, water efficiency, CO2 emissions reduction, and indoor environmental quality. No matter what the primary focus of a green construction project may be, this relatively new frontier in the industry creates both unique economic opportunities and legal risks that contractors and subcontractors must not overlook when taking on sustainable business ventures. These opportunities and risks are ultimately tied to the methods and material of construction, and the contractual relationship between the developer and contractors. More »

Prefabricated Construction Liability

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Introduction

Prefabricated residential and commercial construction brings both new building opportunities and new legal concerns. Building with prefabricated components provides for greater efficiency in cost, development, and installation than traditional building methods – allowing entire commercial and residential structures to be assembled at a worksite like building blocks consisting of prefabricated “units” or “modules.” However, this shift from field construction to field assembly also shifts the scope of potential liability for all parties involves – from engineers designing prefabricated components through component manufacturers and down to contractors completing installation and assembly. Below, we consider how changes to construction from prefabricated components affect liability and coverage in the realm of construction liability. More »

COVID-19 Pandemic Negligence Claims Update: Developing Legal Immunity for Health Care Professionals

I. Introduction

On March 27, 2020, the bipartisan federal Coronavirus Aid, Relief, and Economic Security (“CARES”) Act was enacted with the goal of providing economic aid to families, businesses, health care providers, and state governments. While the Act received a wealth of media attention relative to its much-needed economic stimulus, little publicity was given to the immunity it grants to volunteer health care providers during the current public health crisis. Earlier in March, we discussed the impact of the COVID-19 Pandemic on Negligence Claims, noting the potential for rapid development of legal immunity in the face of uncertainty created by Coronavirus. Now, just two months into the COVID-19 pandemic, federal and state governments have begun to take action to protect their health care providers from liability, and we summarize these early efforts below. More »

COVID-19 Pandemic Negligence Claims: What is the Standard of Care When There is No Precedent?

I. Introduction

While the world is rightly focused on stemming the spread of the COVID-19 virus, the future holds a lot of uncertainty and unanswered questions.  How bad will the pandemic become and how many lives will be lost?  Will the world see waves of COVID-19 outbreaks in the future?  Will medical researchers develop a treatment or vaccine to manage COVID-19?  How long will humans have to engage in social distancing?  How will the current pandemic impact the world economy, and will we fall into a global recession?  Far down the list of questions surrounding the COVID-19 pandemic is whether the crisis will result in a flood of negligence claims filed by individuals afflicted with coronavirus illnesses against a host of potential defendants, including medical providers, nursing homes and senior care facilities, businesses and premises owners, individuals, private schools and universities, and personal protective equipment manufacturers, to name a few of the potential targets.  More likely than not, the answer to this question is that yes, negligence claims against these and other classes of defendants will follow.  The thought of that probably leaves a lot of people uncomfortable, since many of these potential defendants are the ones working tirelessly to treat those suffering from coronavirus illnesses and to protect the rest of society from getting sick. 

How these negligence claims will be treated remains to be seen, and while the black letter law for negligence is well-developed in the United States, never has negligence law been examined in the era of modern litigation in a situation like the current one, where quick action is necessary, so many lives are at risk and those who are most vulnerable to liability are also those acting in good faith and selflessly to help others.  The standard of care applied to defendants named in COVID-19 negligence claims will play a major role in the outcome of these future cases and will greatly impact the ability of defendants named in those cases to minimize their liability.  More »

PROFESSIONAL LIABILITY CLIENT ALERT: Opioid Litigation - The Practitioner's Guide to Managing the FDA's 2019 Roadmap

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On February 26, 2019, FDA Commissioner Scott Gottlieb released a press announcement detailing the FDA’s efforts in combating the opioid crisis. The FDA holds a guarded belief that the opioid crisis is improving but that significant changes to FDA rules and regulations are still needed to resolve the epidemic. While Gottlieb’s statement  considered the FDA’s efforts to curb illicit opioid proliferation, it also discussed the FDA’s plans for new regulations for medical professionals meant to further reduce and limit the use opioids in the U.S. The press announcement included a roadmap for the FDA’s 2019 regulatory plans  which could have substantial implications for medical professionals defending against opioid litigation. This Article analyzes some of the FDA’s proposed changes that could have the greatest impact on opioid litigation and how medical practitioners can prepare for opioid litigation in Illinois in the wake of these regulatory changes. (For more on how medical professionals can prepare for and protect against future opioid litigation and liability, please see Medical Professionals and Opioid Lawsuits: Protecting Against the Coming Storm.) More »

PROFESSIONAL LIABILITY CLIENT ALERT: Medical Professionals and Opioid Lawsuits: Protecting Against the Coming Storm

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The pharmaceutical industry and medical professionals are facing a crisis over opioid prescriptions – which have been a regular part of medical care and pain management for decades.  In 1977, the New England Journal of Medicine published an analysis of opioid medications and associated addiction which found opioid addiction and death to rarely develop from pain management with opioids. Following this publication, the medical industry began to use opioids with greater regularity throughout the 1980’s, 1990’s, and into the present day given their effectiveness in treating patients with both severe short-term and chronic pain. More »

PROFESSIONAL LIABILITY CLIENT ALERT: The Medical Studies Act: What Happens in Peer Review Does Not Always Stay in Peer Review

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Medical professionals often face a difficult balancing act when it comes to peer review.  Hindsight is truly 20/20, and it is important for medical professionals to peer review patient and resident care to improve future treatment. However, when inadequate care is provided and a patient or resident is injured, medical professionals face the specter of litigation. How do medical professionals balance between improving future care and protecting themselves from litigation? To help balance these important interests, Illinois has passed both the Medical Studies Act, 735 ILCS 5/8-2101 et seq. (2004), and the Long-Term Care Peer Review and Quality Assessment and Assurance Protection Act, 745 ILCS 55/4 et. seq. (2014) (the “Quality Assessment Act”). While the line between communications protected during peer review and those that are discoverable in litigation is not perfectly clear despite these Acts, there are certain guidelines that peer-review committees can follow to ensure the greatest possibility of protection under the Acts. More »

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