Doctors claim uncertainty - and do harm. - Mark P. Loftus

duda • September 26, 2025

I took the deposition of an infectious disease doctor the other day in a Workers Compensation matter. The doctor lets call him Dr. Smith treated my client as he lay dying in a south suburban hospital. My client – Donald – was a plumber who worked for an HVAC company in the south suburbs. By way of background, prior to his death, Dennis was not the picture of health. He had battled various addictions for years prior to getting sober circa 1997. To his credit, he had been clean since. But the years of abuse had taken a toll. He had Hepatitis C and cirrhosis.

Donald and his wife Marie had been seeing the same primary care doctor[“PCP”] for years. After Donald died, the PCP contacted Marie and suggested she contact a lawyer. He explained that Donald had died of Legionnaire’s disease, a respiratory disease similar to pneumonia caused by the Legionella bacteria. The bacteria is usually inhaled from a water source. And, the PCP explained further that plumbers and other trades who routinely work around standing water, are at greater risk. Finally, the PCP explained that since Donald had been a plumber, AND that no one else in their household was sick, exposure had taken probably taken place at work. So Marie called me. After reviewing the appropriate medical records I filed the case.

I spoke with Donalds primary care doctor who told me that while he was convinced Donald had been exposed at work, he couldnt provide appropriate causation testimony. He had seen Donald prior to his hospitalization. At that time, Donald had signs of a serious respiratory disease. When antibiotics didnt help and his condition worsened, the PCP had Donald admitted, and turned his care over to the Infectious Disease specialist.

The lawyer for the employer is an honorable guy. He told me that while the medial records strongly supported a work exposure, the insurance company wanted more. So I agreed to subpoena the Infectious Disease doctor, who I presumed would provide strong causation testimony. I hadnt made that assumption lightly. In his treatment notes, Dr. Smith routinely noted that the patient worked as a plumber. And he repeatedly noted that no one else in the family was sick. Those notes suggested to me that Smith felt exposure had taken place at work.

Shortly after the subpoena was issued, I got a call from a lawyer at a prominent medical malpractice firm. I was informed he would be representing the doctor at his deposition. Those phone calls are rarely good news. Under Illinois law, the patients lawyer is permitted to discuss certain issues with the doctor before the deposition. Once the doctor hires a lawyer, there are no informal meetings before the deposition. And, invariably, a doctor who has lawyered up for his deposition is sending a very clear message “Dont count on me to help.”

On the day of the deposition, the doctor walked in at the appointed hour with his lawyer. The first thing I noticed was how young he looked. He looked more like a college sophomore than a infectious disease specialist. And early on, he was agreeable. He acknowledged the bacteria breeds in warm water and can exist in hot water tanks, air conditioning units and showers. And he confirmed that no one else in Donald’s family had become ill. And, he acknowledged that Donald’s work as a plumber would be a risk factor for exposure to the bacteria.

Then came the million dollar question did he think the exposure to legionella was work-related? He had no opinion. And he based his lack of opinion on the fact that sometimes people get exposed to legionella while working out at a health club. He testified that Donald could have been exposed while at a health club – either in the shower, hot tub or sauna area.

That testimony was absurd. With all due respect to Donald, the next time he entered a health club would have been the FIRST time Donald entered a health club. Donald stood about 5’10” and weighed nearly 275 lbs. He had high blood pressure and was borderline diabetic. Donald was not a health club guy. And to make matters worse, the doctor likely knew that. I pressed him and he acknowledged that during his treatment of Donald, he was never advised that Donald went to health clubs. But Dr. Smith wouldnt budge. He was NOT going to concede causation.

Why not? The doctor faced no legal jeopardy. All he did was provide excellent, state of the art treatment to a very sick man. The group he was affiliated with faced no legal jeopardy, nor did the hospital. An honest answer would have simply strengthened the case against the appropriate party the employer. And the employer is appropriately sheltered by Workers Compensation insurance.

Maybe he was a true believer, one of those doctors blinded by the propaganda put out by tort reformers. They mistakenly believe that medical malpractice filings are increasing and driving physicians out of Illinois. And as a result, some doctors have decided that they will never knowingly assist a personal injury lawyer and if possible, do what they can to submarine a case. Their omerta against personal injury lawyers however, is entirely misguided. The number of medical malpractice lawsuits filed in Illinois has dropped 32% since 2003. And, the number of doctors in Illinois involved in patient care has been steadily increasing since 2006.

The involvement of lawyers representing doctor/witnesses shouldnt be overlooked. That practice, to my recollection started in earnest around 15-20 years ago and appears to be the norm today. The lawyer meets with the doctor before the deposition and properly instructs the witness not to offer sweeping or unsubstantiated opinions. Do those same lawyers instruct doctors to refrain from offering appropriate causation testimony? I think most good defense lawyers leave the causation issue up to the doctor. Some of my more cynical personal injury colleagues think otherwise.

I don’t have the answer for why a doctor would would hesitate to give what appeared to be pretty obvious testimony. One fact however, cannot be argued. A doctors refusal to confirm an obvious causation link does indeed do harm to a patient and his family.

The little snippet I have provided is from Malice, an otherwise forgettable 1993 film. But this scene is worth watching, as Alec Baldwin, in all his malevolent glory, as a doctor with a God complex, melts a lawyers face.

MENTAL SUFFERING DAMAGES ALLOWED UNDER NEW LAW - Mark P. Loftus

By duda • September 26, 2025
Illinois Governor Rod Blagojevich recently legislation that will permit successful plaintiffs to receive jury awards for grief, sorrow and mental suffering in Wrongful Death cases. The new law finally allows the surviving spouse and next of kin to recover for their anguish over the loss of their loved one. Prior to passage of the law, family members couldn’t even mention their grief at trial, as any such mention just might be grounds for reversal of the verdict. Illinois has now joined with 23 other states that allow such damages.

FILE THOSE RULE 222 AFFADAVITS!!! - Mark P. Loftus

By duda • September 26, 2025
The Fourth District Appellate Court of Illinois[Champaign County] recently came down with an opinon that will make Illinois personal injury attorneys check their complaints a little more closer. In Grady v. Machini[opinion filed on July 31, 2007] the plaintiff filed a complaint to recover damages for injuries she suffered in an auto accident. The complaint did not have an affadavit, as required by Supreme Court Rule 222, stating whether the damages sought did, or did not exceed $50,000. The case went to trial and the jury awarded $97,700. The defendant brought a post-trial motion to reduce the damages to $50,000. The trial court did so and the plaintiff appealed. The Appellate Court felt that Rule 222 was very clear – in effect, it requires that a party to attach an affadavit stating whether the damages sought did or did not exceed $50,000. The rule goes on to say any judgment that exceeds $50,000 shall be reduced to $50,000 if the damages sought do not exceed the $50,000 mark. The court ruled that as plaintiff did not file an affadavit asying she was seeking more than $50,000 she could not recover more than that amount. Ouch.

ILLINOIS HEALTHCARE SERVICES LIEN ACT - Mark P. Loftus

By duda • September 26, 2025
I recently had a situation with an Illinois Healthcare provider that I had managed to avoid for the last twenty years. Represented an older man for injuries he had received in an automobile accident. The client was a very nice guy who had come here from another country decades ago, worked hard and raised his family. Didn’t have much education, but always worked. He got pretty smashed up in the collision and had a fairly substantial hospital bill. He didn’t have any insurance at the time, so the hospital agreed to issue a lien for the outstanding amount, to be paid out of any settlement. Typically, [at least in my experience] the healthcare provider will usually accept a discounted amount in FULL AND FINAL SETTLEMENT OF ANY OUTSTANDING BILL. The reduction is an implicit acknowledgement that but for the efforts of the attorney, the medical bill would not have been paid. Getting back to my client, his bill was outstanding for a long time, so the hospital sent it out to collection. Collection agency contacts me and advises that after payment of the lien, they will pursue the client for any outstanding amount. I call the hospital and speak to personnel in management who agree that normally, after payment of the reduced amount, they forget about the balance. I pass this onto the collection agency, who insists on pursuing the client for any amounts outstanding. So although the hospital has conceded that their custom and practice is to accept the discounted amount in full settlement, the collections bloodsuckers refuse to budge. The inmates have apparently taken over the asylum. My only option is to bring a Motion to Adjudicate the Lien, which isn’t a particularly good option. Under 770 ILCS 23/45, healthcare providers are entitled to go after the entire amount. Hopefully the judge will recognize the unfairness of the collection agency ignoring hospital policy, and give my client a break. To be continued…

SEVENTH CIRCUIT WEIGHS IN ON RETALIATORY DISCHARGE - Mark P. Loftus

By duda • September 26, 2025
The United States Court of Appeals for the Seventh Circuit, located in Chicago, Illinois, recently discussed the proof a plaintiff must offer when prosecuting a retaliatory discharge case. In McCoy v. Maytag, Thomas McCoy brought a retaliatory case against his former employer, Maytag, for firing him after he filed a Workers Compensation Act. The Court, in the course of its opinion, set forth the elements a Illinois plaintiff must prove: 1) that he was the defendant’s employee before the injury; 2) that the employee exercised a right granted by the Illinois Workers’ Compensation Act and 3) that he was discharged from his employment with a causal connection to his filing the Workers’ Compensation claim. The hard part in these cases is the third element – causation. The Court noted that “The element of causation is not met if the employer has a valid basis, which is not pretextual, for discharging the employee.” So what does that mean in English? The Court explained that in order to show pretext, “…a plainitff must offer evidence to indicate that the employer did not honestly believe the reasons it gave for its action and is simply lying to cover its tracks.” Pretext “…means more than a mistake on the part of the employer; pretext means a lie, a specifically a phony reason for some action.” In short, the plaintiff has to show the employer’s reason for discharge was a lie. Not an easy thing to prove, as Mr. McCoy found out. The Seventh Circuit upheld the Trial Court’s decision to grant summary judgment against plaintiff, ruling that the plaintiff’s failure to provide regular updates to justify his absence from work[required under the Collective Bargaining Agreement]was a non-pretextual reason for the termination.

TRENT LOTT HAS AN EPIPHANY ABOUT INSURANCE ABUSES - Mark P. Loftus

By duda • September 26, 2025
Senator Trent Lott, the powerful Republican Senator from Mississippi, has seen the light. Lott, who, until very recently, was a longtime defender of insurance companies, is no longer. Senator Lott lost his home to Hurricane Katrina in 2005. He filed a claim with his insurer, State Farm. The “Like a Good Neighbor” people denied coverage on Lott’s claim, as well as the claims of tens thousands of other homeowners. State Farm claimed Lott’s home, and the other homes, were actually damaged by flooding, a non-covered risk under the policies Lott filed suit, litigated the case over a year, and only recently settled. That experience caused Lott to re-think his allegiance to insurance companies. He has now concluded that the insurance industry needs some reforms[gasp!!!]. To quote Senator Lott: “I’m like a woman scorned. I’m prepared to to continue to kick their fanny until the last day I’m alive on this Earth because they have mistreated too many people.” Better late than never Senator.

HOW LOW CAN PROGRESSIVE INSURANCE GO? - Mark P. Loftus

By duda • September 26, 2025
Pretty low, if the allegations made by an Atlanta couple prove to be true. Bill and Leandra Pitts, the couple in question, were injured in a 2004 auto accident. According to an recent article in the Atlanta Journal-Constitution, the insurance company involved, Progressive Insurance, established a new low while “investigating” the claims made by Mr. and Mrs. Pitts. According to the article, investigators for Progressive snuck into the Pitts’ church in August of 2005, posing as prospective members. Then they slimed their way into a private confessional meeting at a church member’s home, hoping to overhear a damaging admission from the Pitts about the auto case. After the Pitts learned of Progressive’s tactics, they filed a lawsuit claiming invasion of privacy and fraud. Progressive’s President and CEO, Glenn Renwick issued a statement acknowledging that the story appeared to have merit and apologizing for the actions of the investigators. Interestingly, Renwick’s statement didn’t mention what disciplinary action, if any, were taken against the investigators in question.

CHICAGO HEAVYWEIGHT BEING SUED - Mark P. Loftus

By duda • September 26, 2025
According to a recent article in the Chicago Sun-Times, the next fight for Chicago heavyweight Andrew Golota might take place in a Chicago courtroom. Golota is being sued by a Chicago woman after a traffic accident in April, 2007. The woman, Juliet Mendez, is claiming that Golota blew a stop sign and slammed into her car. The lawsuit claims that Mendez suffered permanent injuries to her back and neck. Golota’s wife, attorney Mariola Golota, claimed that the accident was a simple fender bender. According to the Sun-Times article, no ambulance was called to the scene, and the accident report referred only to property damage.

LORD OF THE DANCE STAR PREVAILS AFTER RAPE ACCUSATION - Mark P. Loftus

By duda • September 26, 2025
According to a recent Chicago Sun-Times article by Bill Bird, Michael Flatley, the Irish dancer, also known as the Lord of the Dance, has prevailed in his lawsuit against a Joliet woman and her attorney. The woman, Tyna M. Robertson had accused Flatley of raping her in Las Vegas in October of 2002. No criminal charges were ever filed. Some five months later, Robertson filed a lawsuit against Flatley in Lake County, Illinois, seeking $35 million dollars in damages. Dean Mauro acted as her attorney. Mauro directed a letter to Flatley demanding millions of dollars to settle the case and accused Flatley of rape. Flatley then countersued Mauro and Robertson for extortion and defamation. The case was concluded several weeks ago, with Mauro paying Flatley more than $400,000. A default judgment has been entered against Robertson. Robertson subsequently had a son with Chicago Bears star linebacker Brian Urlacher and was involved in litigation involving visitation rights in October of 2006.

ILLINOIS TEEN SETTLES WITH POLICE AFTER GETTING TASERED - Mark P. Loftus

By duda • September 26, 2025
A south suburban teenager, Travis Alexander, has agreed to settle his lawsuit against a south suburban Chicago Police Department. Alexander sued the Riverdale Police Department after he was tasered and attacked by a police dog. Alexander was 17 at the time of the incident. He and a friend were walking home from a store when they were stopped by a police officer. The police maintained they had received a tip that Alexander’s friend was involved in a drug deal. Alexander and his friend ran, claiming that they were scared of the Police. Alexander was only two doors from his house when caught. He was then handcuffed and tasered. In addition, the plaintiff alleged that the police allowed a German Shepherd Police dog to attack Alexander, causing him injuries on the leg and head. Although no contraband was found on Alexander, he was charged with resisting arrest and trespassing. He was ultimately exonerated of those charges. As a result of the incident, Alexander suffers from post-traumatic stress disorder. The Riverdale Police department agreed to pay Alexander $345,000 to dismiss the case.

MORE DETAILS ON CHICAGO PRIEST ACCUSED OF SEXUAL MISCONDUCT - Mark P. Loftus

By duda • September 26, 2025
More details are emerging about precisely how early Church authorities were aware of alleged sexual misconduct on the part of Rev. Donald J. McGuire. McGuire was a teacher at Loyola Academy in the late 1960’s. In 1969, Rev. Charles Schlax contacted the the president of Loyola, Rev. John Reinke, to complain about McGuire. A young man had complained to Fr. Schlax that McGuire was a “pervert”. The youth had apparently been staying at Loyola for as much as a week at a time, including nights. Schlax had requested an investigation into McGuire. Shortly thereafter McGuire was informed he was going to take a sabbatical. Then in 2000, several families who had sons working as aides to McGuire expressed more concern about McGuire’s behavior. One family reported that their son told them McGuire was overwhelming him with pornography and sexual discussions. Another family complained that McGuire was pressuring their son to avoid college, family and friends – and instead spend more time with McGuire. McGuire apparently encouraged the kid to sleep on the floor in his room, or in his bed. Shockingly, McGuire’s superiors have indicated as recently as 2005 that they had no knowledge of McGuire’s proclivities. Turns out they had plenty of notice and allowed this guy to terrorize kids for 40 years.