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Springfield Addresses Joint & Several Liability

May 3, 2011 by Leave a Comment

Joint and several liability is the concept whereby one defendant can be held liable for the full amount of an obligation, usually damages in tort, regardless of their share of responsibility. A perfect example is a four car chain accident. The last car in the line, hits the third car, pushing the third car into the second, and the second into the first. Without each of the cars, the first car never would have been damaged. All parties have a percentage of liability to the injured driver in the first car, but under joint and several liability the plaintiff can pick which party to sue and from whom to collect damages. HB 1902, allows juries to consider the relative blame of each party who could have been sued by the plaintiff. State representative Dwight Kay sponsors this bill, attempting to improve the business climate. Clearly, plaintiff attorneys are opposed, claiming that it won’t be fair for their clients.

Joint and several liability allows the plaintiff to collect from whichever defendant they choose, usually electing the defendant with the most money. Defendants will try to have the damages reduced to reflect their share of responsibility, but courts often refuse to do so. The defendant who was forced to pay the entire judgment, must seek contribution from the other parties. This potentially creates more litigation which the proposed bill would correct.

In an attempt to prevent a defendant from pointing the finger at a party not present in the courtroom, plaintiffs will be forced to name every defendant that might be responsible. And regardless of whom the plaintiff names in the suit, defendants will likely argue that a non-present party was the responsible one. If that is the case, jurors may not be able to accurately decide percentages of responsibility. In turn, this could cause settlements to be less frequent because a defendant’s incentive to go to trial increases if he can argue he was less responsible and thus should pay less. The exact effect the bill will have is not clear, but if this bill does in fact get passed, the landscape of joint and several liability’s use in the courtroom will be changing.

Filed Under: Auto Accident, Personal Injury

Screening Wrongful Death Actions on Behalf of an Unborn Child

May 2, 2011 by Leave a Comment

Wrongful death cases rely heavily on expert testimony (thus, costly to litigate), and as an attorney, it is important to screen potential cases before you and your client expend considerable time and money. In wrongful death actions brought on behalf of an unborn child, an initial focus on the unborn child’s viability at the time of expiration is, as an initial matter, a relatively easy way to evaluate the plaintiff’s potential recovery.

In Green v. Smith, the Illinois Supreme Court held that a wrongful death action brought on behalf of an unborn child requires a finding of viability. 377 N.E.2d 37 (Ill. 1978). The term “viability” has been generally interpreted in both the legal and medical community to mean that the unborn child would have been capable of surviving independently of the mother at the time of expiration. In Illinois, viability is a factual determination that depends on numerous factors, including the length of pregnancy, the health of the mother and child, the weight and race of the child, and the availability of life-sustaining technology.

Illinois courts have stated that because a finding of viability depends on multiple factors, the gestation period is not determinative in itself. However, the length of gestation in combination with health statistics can be a valuable tool for an attorney in determining whether a wrongful death action has a reasonable chance of success. There will be some point in any given pregnancy, where an unborn child would simply not survive outside the womb. The earliest baby to have ever survived premature birth was born at 21 weeks and 6 days. Even this was widely considered a miracle. A child born at 20 weeks is generally thought to have a less than 1% chance of survival, absent any other complications. Given the odds of survival, it is safe to say that a wrongful death action brought on behalf of an unborn child of less than 21 weeks gestation would be an uphill battle, and likely too risky considering the costs of litigation.

An unborn child’s viability increases dramatically with every week of gestation after the 22nd week of pregnancy. Viability at that point would depend on many factors and would require a more in depth analysis.

Filed Under: Personal Injury, Wrongful Death

Preventative Measures for Soccer Goalposts

May 2, 2011 by Leave a Comment

The Illinois House of Representatives has passed Zach’s Law—which requires soccer clubs, park districts, and other organizations with social goals, to use tip-resistant goals and to follow proper protocol to make sure the goals are anchored. Zachary Tran, the namesake of the bill, was a Vernon Hills boy who suffered a severe injury to his head on the soccer field, in 2003. Jayson Tran v. American Playground Corp, et al., the wrongful death case, settled for $2.5 million with American Playground company, $500,000 with the goal manufacturer, and $250,000 with the Vernon Hills Park District. In the lawsuit, the complaint alleges that the goalpost had no counterbalance and the ground stakes, which it relied upon for balance, were missing. This then struck Zach in the back of the head, resulting in his death.

The parents of Zachary Tran became advocates of soccer goalpost injury prevention. At the beginning stages of the litigation, the attorney for the Tran’s said they just wanted to warn people about the dangers of the goals and for this to never happen again. Zachary Tran’s family created Anchored for Safety (anchoredforsafety.org) which is a public awareness initiative for safe soccer goals. The personal injury attorney of the plaintiff in this case, Shawn S. Kasserman, assisted on the drafting of the bill, which is now waiting to be passed in the Senate (as of 4/22/11).

This bill is a step toward 1) eliminating soccer goals with a deadly design and 2) preventing severe brain injuries or even death. The bill will create the Movable Soccer Goal Safety Act and require organizations that own and control movable soccer goals to create a policy about soccer goal safety. This Act also bans the sale (and distribution) of goalposts that are not tip-resistant. Organizations will be given one year to comply with the Act.

Filed Under: Brain Injury, Personal Injury

NFL Is Afoot With Change

May 2, 2011 by Leave a Comment

Although recently in the news, there has been talk of a lock out, a strike and god-forbid no NFL in 2011, but that is not the only thing going on in the NFL. The NFL has created the NFL Sidelines Concussion exam, a group of tests used to evaluate balance, basic thinking skills and concentration. Along with the creation of the exam, each team will be required to use this neurologic test to determine whether a player sustained injury to his brain. The test must be given 6-8 minutes from the time the player suffered the injury. Taking these steps the NFL is trying to create a uniform standard across the board in order to assess concussions. In the past ten years, a substantial amount of data has been published, showing that traumatic brain injuries have impacted the lives of the players for years after they have left the league.

To implement this into the NFL, every player in the league will be given a test at the beginning of the season to create a baseline specific to each player. This baseline test will then be compared to the test given on the sideline to determine whether or not the player has in fact suffered a brain injury. If his performance on the sideline test is dramatically different from the baseline test, the player will be removed from the game.

When 160 NFL players were surveyed, almost half of them admitted they had a severe head injury and hid it from their team. University of Michigan’s Institute of Social Research unveiled that 6.1 percent of players that responded were suffering some form of memory disorder–Alzheimer’s or dementia. That statistic is five times the average for men their age.

Although the NFL is implementing this to track concussions, it is also clearly a preventative measure for future exposure for brain injury litigation stemming from multiple concussions in a season or a career.

Filed Under: Brain Injury, Personal Injury

What is a Traumatic Brain Injury?

May 2, 2011 by Leave a Comment

Traumatic brain injury, TBI, is unlike most other injuries. Sometimes a person doesn’t even notice that they have suffered a brain injury, other times the effects are immediate. Each and every brain injury has a different recovery potential and time frame. This makes brain injury litigation and settlements one of the most difficult areas to assess. There is potential that with the right medical resources someone will recover in 6 months or someone may have permanent effects.

Congresswoman Gabrielle Giffords suffered a brain injury earlier this year, but the exact status and timeline of her recovery is still unknown. Albeit Giffords has received intensive physical therapy and has regained some speaking, writing, and mobility, it is unclear whether she will fully recover, much like other brain injury patients.

There are two categories of traumatic brain injuries: mild and severe. Mild brain injuries are identified by a person losing consciousness, having confusion or having disorientation for thirty minutes or less. Effects of mild traumatic brain injuries include: headaches, loss of memory, mood swings, and attention deficits.

Severe brain injuries occur when a person loses consciousness for more than 30 minutes and memory loss lasts longer 24 hours. Effects of severe brain injuries vary from comatose states, limited function of their limbs, loss of cognitive ability, emotional problems or abnormal language or speech.

The effects of TBI are often extensive. Some individuals that suffer severe traumatic brain injuries are left in unresponsive states for months, years, even decades. For people like Congresswoman Giffords, sufferers of severe traumatic brain injuries, long-term rehabilitation is often needed to maximize independence and motor function. Settlements of these cases can range from a few thousand to millions. For instance, a recent case in Cook County, Estate of Shamiran David v. Rush Northshore Medical Center, et al., No. 07 L 8444, settled for $5 million dollars.

Filed Under: Brain Injury, Personal Injury

Workers’ Compensation Reform: Altering a Worker’s Ability to Recover For On the Job Injuries

April 22, 2011 by Leave a Comment

The workers’ compensation system is a tradeoff. In exchange for timely payments, workers give up their common law right to sue their employer for injuries they sustained on the job. Employers, shielded by the possibility of expensive litigation, are required to insure against the possibility of job related injuries. Most employers purchase commercial insurance, but they can self-insure in some situations. The system–designed to limit an employer’s exposure to liability and therefore increase their bottom line- is being attacked.

Employers are not arguing for a repeal of the Illinois Workers Compensation Act, undoubtedly because they receive some benefit from limiting their liability. However, they do claim that Illinois’ current system places too much of the financial burden on the employer. That is why many Illinois employers, including Peoria-based Caterpillar, supported the recent Senate bill that was voted down by Democrats on April 14, 2011. Championed by Rep. Sen. Kyle McCarter of Lebanon, the bill, most notably, would have required injured workers to prove that their workplace is at least 50 percent responsible for the injury or illness. Regardless of the possible merits of the change in the law, it would have drastically changed an injured worker’s ability to be compensated for his injury.

Although the Democrats thwarted this particular bill, both sides of the aisle are looking for some kind of reform, and the Democrats have their own proposals. In fact, Gov. Pat Quinn, in addition to other proposals, has called for a 30 percent cut in rates paid to medical providers. With a similar proposal from the Republicans in the Senate, it is likely that the two sides will find some common ground before the end of the term in June. It remains to be seen what that final bill will look like, but it is evident that the rights of an injured worker in Illinois will likely change before 2011 is over.

Filed Under: Personal Injury, Workers' Compensation

Supreme Court Says Parents Can’t Sue Vaccine Makers In Court

April 21, 2011 by Leave a Comment

In Bruesewitz v Wyeth, decided in February, Justice Scalia opined that the National Childhood Vaccine Injury Act of 1986 was designed to protect the vaccine industry from overwhelming litigation while providing a mechanism to compensate injuries stemming from vaccinations. The law provided that “no vaccine manufacturer shall be held liable in a civil action” for an injury that “resulted from side effects that were unavoidable.” The court found that this language bars any design-defect claims. Instead, victims must go in front of the Vaccine Court, which the 1986 law created. If compensated, the money comes from a fund created by a tax on drug makers.

Design-defect is a particularly contentious type of product liability case, because a victory by the plaintiff can open up the defendant to incredible liability. If one plaintiff can prove that the design of the particular product is defective, then the defendant is potentially liable for the use of every one of those products. Generally, after showing a defect in design, the plaintiff will also have to prove that the defect was unreasonably dangerous, although jurisdictions vary on how to determine whether a defective design is unreasonably dangerous.

The American Academy of Pediatrics, and the U.S. government agreed with the majority, arguing that the decision enhanced the national immunization system, thereby protecting the most fragile. The American Association for Justice, however, agreed with the dissent, arguing that it was necessary for drug manufacturers to defendant themselves in court in order to truly force them to live up to their duty of providing safe vaccines to the market place. They contend that the decision is a disincentive for drug manufacturers to live up to that duty.
When faced with the possibility of a defectively designed product, defendants will fight as hard as possible. In this case that fight took them all the way to the Supreme Court, where their legal fees most likely amounted to more than it would have cost them to compensate this one victim. However, if they were to lose this battle it could have cost them tens, if not hundreds of millions of dollars to compensate all the victims. Perhaps this case was a victory for children in the future, but it was definitely a victory for the defendant and the vaccination industry.

Filed Under: Personal Injury, Product Liability

Death of Prominent Chicago Leader Prompts Federal Government to Act

April 20, 2011 by Leave a Comment

It has been nearly a month since the death of James Tyree, but the federal government is looking into University of Chicago Medical Center. Tyree was the chairman of the parent company of Chicago Sun Times and chairman of Mesirow Financial. He also served on many Boards, including University of Chicago’s Medical Centers. Tyree battled medical conditions his whole life, among them he battled diabetes and had kidney and pancreas transplants and four eye surgeries. Although Tyree was suffering from stomach cancer and recovering from pneumonia, an autopsy revealed that he died from an air embolism after a dialysis catheter removal. Air embolisms are caused by oxygen bubbles in the bloodstream and can even be deadly if a substantial amount of air becomes lodged in the heart.

Although an air embolism is rare and hard to recognize, it prompted the federal government to take a closer look at University of Chicago’s Medical Center. After investigating University of Chicago’s policies and procedures of training for physician assistants and other medical personnel, the U.S. Centers for Medicare and Medicaid Services reported that it was terminating University of Chicago’s medicare payments on April 28, 2011. Their main concern; no policies to ensure that these employees were trained and able to perform central line placement–a catheter procedure. University of Chicago Medical Center has until June 20, 2011 to comply with requests made by U.S. Centers for Medicare and Medicaid Services. By that date, the hospital must show that staffers are fully capable and trained in procedures like the one that caused the death of Tyree.

University of Chicago claims that proper documentation was available and that the investigation merely showed that all the employees had proper experience, training, credentials and competency.
As of April 16, 2011, the Tyree family has not taken any legal action.

Filed Under: Medical Malpractice

Employers Limiting Liability Through Cell Phone Policies

April 19, 2011 by Leave a Comment

As an employer, you give your employee a Blackberry with the intent that their availability be a phone call or text away. But what happens when your employee is driving, her supervisor calls her, she feels obligated to answer, and in the process of doing so, hits the car in front of her? 4 out of every 5 accidents (80%) are attributed to distracted drivers.

This is yet another way respondeat superior or vicarious liability may implicate employers; negligence by employees that will be passed onto the employers, unless the employer communicates a cell phone policy to its employees. If not, the employee or their family may file a negligence lawsuit against the employer for their injuries, and they might win. A compelling case can be made that the employee felt that they had to answer the phone based on something their boss said. To get around this, a clear cell phone policy, whether the company has provided the cell phones or not, will in effect, allow the employers to escape liability. The following is an example of such a policy:

Due to research that indicates that cell phone use while driving is dangerous, and may even approach the equivalent danger of driving while drunk, according to some studies, your company prohibits employee use of personal cellular phones, either hands on or hands free, or similar devices, for business purposes related in any way to our company, while driving.

We recognize that other distractions occur during driving, however curbing the use of cell phones, while driving, is one way to minimize the risk, for our employees, of accidents. Therefore, you are required to stop your vehicle in a safe location so that you can safely use your cell phone or similar device. Engaging in your company business using a cell phone or similar device while driving is prohibited. Engaging in your company business using a cell phone or similar device that is supplied by the company, or while driving a company-supplied vehicle, while driving, is prohibited.

Employees who violate this policy will be subject to disciplinary actions, up to and including employment termination. (available at humanresources.about.com/)

Filed Under: Auto Accident, Premises Liability

Traumatic Brain Injury Every 21 Seconds

March 27, 2011 by Leave a Comment

PRWEB reported March 15, 2011 in “The Book Every 21 Seconds To Become Movie” that every 21 seconds in America, a traumatic brain injury (TBI) occurs and someone’s life is changed. The book, Every 21 Seconds, authored by a man who resides outside of Chicago, IL, has been considered by experts in the field of TBI to be the most realistic book written on the subject. The man is currently employed by United Parcel Service. The author was struck down at age 29 and given little to no hope of rediscovering. The story reconstructs the services needed after TBI, the family consequences and society’s lack of appreciation. The screenplay for the film is being written by a lead Inner Light Screenplay Writer. The film project is being presented to select investors and corporations.

TBI is a type of personal injury often caused by a severe blow to the head, damaging the internal lining, tissues, or blood vessels, leading to brain injury that causes physical and mental problems. Engage a Chicago injury lawyer for experienced representation when it comes to handling brain injury cases. Medical attention involves stabilizing the individual with TBI and preventing further injury by insuring oxygen to the brain and the rest of the body, maintaining blood flow, and controlling blood pressure. Medical diagnosis and treatment may require skull and neck X-rays to check for bone fractures or spinal instability, individually tailored physical therapy, speech/language therapy, psychology/psychiatry, and social support.

Often caused by sports, vehicle accidents, assaults, or falls, TBI can range from relatively mild to extremely severe; in the worst cases, brain injury may result in death or permanent disability. According to Centers for Disease Control and Prevention, an estimated 1.7 million people sustain a TBI annually in the United States. Of them: 52,000 die, 275,000 are hospitalized. Direct medical costs and indirect costs of TBI, such as lost productivity, totaled an estimated $60 billion in the US in 2000. TBI patients suffer high medical bills from long-term rehabilitation, and lost income from diminished ability to work. TBI symptoms include headache, confusion, lightheadedness, blurred vision, ringing ears, fatigue, vomiting, seizures, and slurred speech.

Little can be done to reverse the brain damage caused by trauma. TBI may lead to suicide, unemployment, substance abuse, and crime.

Get a Chicago attorney who understands the emotional and physical suffering resulting from TBI, and make perseverance a friend when zealously representing brain injured victims. Contact us today to learn more about your rights.

Filed Under: Brain Injury, Medical Malpractice, Personal Injury
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