Photo of Litigation Blog Patrick F. Sullivan psullivan@smsm.com
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Patrick F. Sullivan is an associate attorney focusing his practice in products liability and malpractice defense, including medical device, long term care …

Showing 5 posts by Patrick F. Sullivan.

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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