$8 Million Wrongful Death Settlement

Bruce R. Pfaff of Pfaff & Gill, Ltd., Chicago, today reported that his clients, the survivors of a 52-year-old Chicago area woman, settled their wrongful death case against the anesthesiologist who failed to intubate her and the hospital where he was on staff. The doctor will pay his full policy proceeds of $2,000,000 and the hospital, sued under the principle of apparent agency, will pay $6,000,000. The settlement was approved by the Honorable William D. Maddux this week. The case was due to be assigned to a trial judge for jury selection.

The decedent, who worked in a non-paying capacity at an area church, went to the hospital for surgery to remove an enlarged thyroid gland. General anesthesia after an “awake” intubation was planned by the anesthesiologist. Despite what the anesthesiologist said were two very small doses of a sedative, his patient suffered a respiratory arrest. According to Pfaff, the family’s lawyer,

“This respiratory arrest should have prompted immediate action by the anesthesiologist—he should have asked the surgeon, standing by to do the thyroid surgery, to do a tracheostomy. It is clear from the majority of witnesses in the OR that the anesthesiologist did not request a tracheostomy right away but attempted unsuccessfully for many minutes, with his patient in full respiratory arrest, to intubate and ventilate his patient. During this time, massive, irreversible brain damage occurred, leading to death 8 days later.”

The anesthesiologist was deposed once early in the case and the second time late in the case. In his first deposition, he said that it took the surgeon 12 minutes to complete the emergency tracheostomy. After all the other fact witnesses were deposed, who indicated that the surgeon completed the trach in 1-2 minutes, the anesthesiologist modified his testimony to say that the surgeon obtained an airway in 4-5 minutes. The surgeon, who was sued based on the indication that he took too long to do the tracheostomy, was voluntarily dismissed from the case after discovery was completed. The family made no settlement demand on the surgeon’s lawyers believing he did nothing wrong.

The anesthesiologist revealed in the second deposition that he prepared almost every entry of the anesthesia record two hours after the arrest. He explained that he went to the anesthesia monitor machine and used its “track back” features to see the vital signs, pulse oximetry readings, and end tidal CO2 readings. What he charted in the anesthesia record even after “tracking back” was “inaccurate” or “not true” per the doctor’s own testimony. He also noted he could have printed the accurate data concerning the patient from the anesthesia monitor machine but did not do so. “A doctor or nurse making a late entry must chart it as a late entry—this anesthesiologist did not do so. His record described a situation that was a false representation of what occurred in the OR. Even the anesthesiology experts hired to defend the case, Dr. Jeffrey Vender, Evanston and Dr. Kenneth Tuman, Chicago, had to admit that the false charting represented deviations from the standard of care,” according to Pfaff.

Despite the strength of the evidence of medical negligence, defense experts Vender and Tuman continued their long-standing record of testifying in support of anesthesiology defendants. Dr. Vender acknowledged to having testified at more than 150 trials as an expert, only for the defense. Dr. Tuman admits to testifying 95% for the defense in claims of anesthesiology malpractice. Both doctors denied that the defendant here provided negligent care to his patient. Plaintiff’s anesthesiology expert was Dr. Ronald Wender, Los Angeles.

The settlement proceeds, all representing loss of society damages, will be divided among decedent’s two adult children and her husband, who has since remarried.

The family was represented by Bruce R. Pfaff and Matthew D. Ports, Pfaff & Gill, Ltd., Chicago, along with William A. Vlasek, Lansing, IL. The family has requested that details of the settlement identifying them, the defendants or the case caption be omitted from any publication concerning this case in order to preserve their privacy.

Defense lawyers involved in the case were: John Smith and Howard Pikel, Pretzel & Stouffer, Chrtd., Chicago, for the anesthesiologist; Barry Bollinger and Mike Krause, Bollinger, Ruberry & Garvey, Chicago, for the hospital; and Mauri Thomas, Fedota, Childers, Chicago, for the surgeon.

For more information please contact Bruce Pfaff at (312) 828-9666 or by e-mail.

Speeches on Current Legal Issues

Bruce Pfaff last week gave speeches on topics of interest for practicing lawyers: first, for the Illinois State Bar Association, Bruce commented on the new Illinois Rules of Evidence, and second, for the Chicago Bar Association, Bruce presented "Fun and Games at Trial," explaining that trials should be interesting and engaging in order to be successful.

New Awards and Professional Recognition

Bruce Pfaff has just received three significant professional awards for his work:

He was named one of Illinois's Top Ten Lawyers for 2011 by Superlawyers, a lawyer rating service.

He was named Chicago Product Liability Lawyer of the Year by Best Lawyers, another lawyer rating service.

He received one of six Trial Lawyer Excellence Awards given at the 50th Anniversary Celebration for the Chicago Daily Law Bulletin.

Bruce greatly appreciates the professional recognition and the great contributions that his firm's lawyers and non-lawyer personnel have made to his (and the firm's) success.

Bruce Pfaff to Present at ITLA's Update & Review Seminar

Bruce Pfaff will be giving at presentation entitled, "Product Liability Update," at the Illinois Trial Lawyers Association’s Update & Review Seminar on October 1, 2010 at the Westin Michigan Avenue in Chicago. For more information, see www.iltla.com.

Bruce Pfaff recognized as one of Chicago's Best Lawyers

Bruce Pfaff has been identified as one of Chicago's Best Lawyers in the 2010 edition of Best Lawyers in America in the fields of personal injury litigation, product liability litigation and medical malpractice law. These prestigious honors result from polls taken of lawyers in the Chicago legal community.

In the field of medical malpractice, Bruce was listed with six other plaintiffs' lawyers as best in Chicago. Bruce was listed along with only two other plaintiffs' lawyers as best in product liability law, and among 20 other plaintiffs' lawyers ranked as Chicago's Best Lawyers in personal injury law.

Bruce greatly appreciates the professional recognition that Best Lawyers in America has given him, but he recognizes that his successes would not be possible without two excellent law partners, Mike Gill and Matt Ports, and a dedicated staff of paralegals and legal assistants. The firm collaborates on all cases in the office so any lawyer's success reflects the efforts of all firm members.

Publication concerning Product Liability Law

Bruce Pfaff authored an article for the American Association for Justice's Product Liability Spring 2010 Newsletter "Risk Utility and Consumer Expectations Tests in Strict Product Liability Cases." The article is an outgrowth of his research on this important issue in all other states. To read the article, go to: http://www.justice.org/cps/rde/xchg/justice/hs.xsl/12415_12418.htm.

Firm's Recent Pro Bono Efforts

In recent weeks, Bruce Pfaff has completed two major pro bono projects. He drafted lengthy technical amendments to the Village Code of Barrington Hills that will help improve equestrian activities in the village while also preserving the rights of non-equestrians. He has been actively involved in that project for 1 1/2 years and with luck, the proposals will be adopted by the Village Board. He will testify before a village board this evening.

Yesterday, Bruce testified before a special committee appointed by the Illinois Supreme Court to create a code of evidence law for the state. Evidence rules are presently set by Illinois common law. The Supreme Court is seeking to codify the rules and Bruce, along with a small group of colleagues, presented an analysis of the proposed code in a comment and in testimony.

The written materials from both projects are available on request; please contact the firm.

Setting the Record Straight About Toyota Sudden Unintended Acceleration and NHTSA

Letter to the Editor, Pioneer Press, 3-24-10

I have to disagree with Mr. Kotin on a number of issues. Toyota has not issued a recall for anything related to "computer software." Lawyers and engineers studying these issues on behalf of consumers have argued for many months that Toyotas have defects in their computer systems. Toyota has vigorously denied this. NHTSA, which has been slow to act in this crisis, has not ordered a recall relating to Toyota's computer systems.

Toyota, belatedly, has issued recalls relating first to floor mats and then to accelerator pedals. There have been reports of sudden unintended acceleration with Toyota vehicles that have been through the floor mat and accelerator pedal "fixes." In those situations, I suspect that there are problems that go beyond floor mats or pedals. Neither NHTSA nor Toyota has been forthcoming with a satisfactory explanation.

A reliable source for information on Toyota sudden unintended acceleration is www.safetyresearch.net. Its head, Sean Kane, testified before Congress on the topic of Toyota defects. Its website has a thorough report available: http://www.safetyresearch.net/Library/ToyotaSUA020510FINAL.pdf.

I also disagree with Mr. Kotin's assertion that "The system works like this: The government recommends a recall, and after much negotiation, manufacturers usually comply and offer either refunds or repairs." Most of the time, the government receives many reports of occurrences and does not recommend a recall-- even where a recall is warranted. NHTSA has a long history of missing opportunities to order prompt recalls of unsafe products; it took civil jury verdicts to expose the dangers of the Ford Pinto gas tank design, not NHTSA. Just an example.

The way to protect the public is to have a strong enforcement mechanism against those who design and manufacture unsafe products. That mechanism should be part governmental and part by private lawsuits to redress harms caused by unsafe products. Our governmental agencies have let us down in recent decades and need to step up to the plate.

The idea of fixing something after it is out in the public domain is inherently less reliable than the manufacturer doing its job right before selling the product. Safety begins with designing hazards out of products; if that is not possible, then the manufacturer must guard against the dangers of its design. Simply issuing a recall notice is no substitute for safe product design or good corporate behavior.

Sincerely, Bruce R. Pfaff, Pfaff & Gill, Ltd., Trial Lawyers, Chicago.

Toyota Recalls in the Face of Deaths and Injuries

Today, workers at the National Highway Traffic Safety Administration demanded documents from Toyota Motor Corp. to evaluate whether Toyota issued its recalls "in a timely manner." U.S. law requires automakers to notify the federal agency within five days of identifying a safety defect. The law also requires a prompt recall when a safety defect is identified.

It is good news that NHTSA is taking this step to evaluate Toyota's conduct. Too many people have been injured or killed in Toyota runaway vehicles (also called "sudden unintended acceleration" cases) for the federal government not to step in to enforce the law. If Toyota has violated its reporting or recall responsibilities, it can be fined millions of dollars. Such an action would provide an important safety incentive for all other manufacturers. For many years our federal agencies have been toothless and more interested in protecting corporations rather than consumer rights. Today's action is a sign that the Obama Administration is taking its responsibilities to protect consumers seriously.

The trial lawyers at Pfaff & Gill, Ltd. have been working to protect consumers from auto defects for thirty years and will gladly help any family who has been harmed by unsafe vehicles or other products.

Pfaffs Triumph in Florida Golf Event

Bruce Pfaff was able to accept a very generous invitation from his friend, Chris Pfaff (no relation), to play in the Invitational Tournament at the Country Club of Florida last weekend. In addition to having a great time in the sun, they earned a close victory over the other teams in the low handicap flight, especially Marshall Duane and his guest, J.R. List. Their victory was aided in small measure by the constant genial abuse they took from their cart-driving caddy, Chris's father, Stu Pfaff, aka "Bozie" or "the Little Squirrel." The club and its hospitality were delightful.

While Bruce was having fun on the golf course, we are overjoyed to report that the Illinois Supreme Court did exactly the right thing by holding that caps on medical malpractice damages are unconstitutional. We will gladly forward you a copy of the court's opinion in LeBron v. Gobblieb, as well as the friend of the court brief that Bruce prepared on behalf of the Illinois Trial Lawyers' Association. Call or e mail us and we will pass along the documents. This decision means that victims of medical malpractice in Illinois are entitled to recover all damages they prove to a jury-- and that the Legislature cannot limit those damages.

Friend of the Court Brief to Preserve a Fair Verdict

Bruce Pfaff yesterday filed a motion in the Illinois Appellate Court for leave to file a friend of the court ("amicus curiae") brief in support of a plaintiff whose son was shot and killed by a City of Chicago employee. The tragic event was captured on a surveillance camera at a CTA stop. In the case, Pleasance v. City, plaintiff received a jury award of $12.5 million. The Appellate Court last month reversed the verdict and directed that the case be retried.

We believe that the appellate court made substantial errors and have joined in the plaintiff's request for a rehearing. Bruce Pfaff's brief was filed on behalf of the Illinois Trial Lawyers' Association, the premier plaintiff trial lawyers' organization in Illinois. He has chaired that group's Amicus Curiae committee on a volunteer basis since 1994 and has prepared more than thirty friend of the court briefs on different issues of importance to personal injury clients.

In the brief filed on behalf of the Illinois Trial Lawyers' Association, Pfaff argues that the jury instructions that the appellate court criticized were perfectly proper for use in the case. He also noted that if the appellate court felt that the award was too high, they should directly address that issue rather than send the family back to the trial court for another trial and perhaps another appeal. Justice delayed is justice denied in many cases.

For copies of the brief, please contact Bruce Pfaff directly.