August 15, 2020

Recovering Damages for Scarring and Disfigurement

A medical malpractice lawsuit was recently filed in southern Illinois by a woman who claims that her doctor performed an unnecessary and costly surgery, which resulted in scarring and disfigurement. The doctor-defendant allegedly misdiagnosed the plaintiff as having one type of abscess (batholin gland), when in fact she suffered from a different type of abscess (vulva abscess). At the doctor-defendant’s recommendation, she underwent surgery to remove what was thought to correct the abscess which she did not in fact have. Not only was this surgery unnecessary, it failed to correct the abscess from which she did suffer, which continued unaddressed.

Moreover, the surgery left the plaintiff substantially disfigured. The term disfigurement implies the loss of a limb, burns, or scars. The plaintiff’s disfigurement, which was only a result of the surgery, not the condition itself, led to a multitude of damages, such as increased medical costs, pain and suffering, and other damages.

The case is still pending but it raises a good question: Under what category of damages do scarring and disfigurement fall? Scarring and disfigurement can actually fall under two categories: special and general. Special damages are easily determined monetary damages, consisting of medical expenses, lost wages, long-term care costs, and lost future earnings. Special damages can also include costs that aren’t as easily quantified, such as a loss in the quality of life, decreased self-esteem, and psychological damages. General damages, on the other hand, are less predictable, and can include compensation for emotional distress, pain and suffering, and loss of companionship. Because significant disfigurement can affect the victim in many ways, the resulting damages can fall into either or both categories.

Whether or not you may be entitled to damages for scarring and disfigurement will depend on the extent of your disfigurement, the impact the disfigurement has had on your overall well-being, and whether the disfigurement. Calculating damages for disfigurement is a complicated and imprecise endeavor, and will largely depend on how the jury perceives your injury.

 

Premises Liability

A personal injury case is usually based on strict liability, negligence, or intent. A case based on negligence is one where injuries happen by accident. An action in negligence requires a showing that a defendant owed a plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of the injuries plaintiff suffered.

When persons or businesses own property, landowners are required to maintain land in their possession and control in a reasonably safe condition. This maintenance duty, owed to patrons, includes the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of precautionary measures. There is persuasive case law that the existence of a defendant’s duty to keep premises safe is not precluded by the defendant’s lack of control over the exterior premises where the crime occurred. For example, if a mugging happens in a parking lot, the defendant may still be liable to the plaintiff even though the defendant does not own the parking lot. The question is whether the crime would have occurred in premises the defendant did not control, had the defendant provided security patrols in the common areas.

A duty to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated. Foreseeability is a crucial factor in determining the existence of duty. For example, a landlord may have a duty to take reasonable precautions to safeguard common areas against crimes which it had notice and which were likely to recur if the common areas were not secure. Without foreseeability as a factor, an unfair burden would be imposed on landowners and, in effect, would force landownersto become the insurers of public safety.

Foreseeability is determined in light of the totality of the circumstances, including such factors as the nature, condition, and location of the premises. Random, violent crimes are endemic in today’s society. Because no one really knows why people commit crimes, no one knows what adequate deterrence is in any given situation. The scope of a defendant’s duty is determined by balancing the foreseeability of harm against the burdensomeness, vagueness, and efficacy of proposed security measures.

Because the monetary cost of security guards is significant, the hiring of security guards required to satisfy a landowner’s duty of care will rarely be a minimal burden. A high degree of foreseeability is required in order to find that a landowner’s duty of care includes the hiring of security guards. In other words, for there to be a duty imposed on a defendant to provide security guards, a plaintiff has to show that the presence of guards could have prevented the criminal incident.

Often the legal aspects of premises liability cases require prepared Chicago personal injury attorneys who do not surrender to the negatives.

Traumatic Brain Injury Witnesses

Sometimes a survivor of a traumatic brain injury looks and acts normal, but the person is actually suffering from an invisible injury. To a jury, the person may look like any other person, so to make the injury real, witnesses must testify to show how the person changed into a different person from before the traumatic brain injury.

Identify the witnesses to traumatic brain injury before filing a lawsuit. Expert witnesses explain the injury. An expert witness must have personal knowledge on what s/he is testifying to. An expert witness may state an opinion if (1) the witness has scientific or specialized knowledge on the subject in which he testifies that assists a trier of fact, (2) the witness qualifies as an expert, (3) the witness possesses reasonable probability regarding his opinion, (4) the opinion is supported by a proper factual basis.

A lay witness can only testify to what is within his/her personal knowledge. The lay witnesses for a brain injury case may be a parent, spouse, friend, or co-worker. A good lay witness is someone close to the brain injury survivor. The witness should know the survivor for many years before the head injury and have regular contact with the survivor after the injury. A witness who is not related to the survivor may be a better witness than a family member because the witness does not have any interest in the outcome of a case, whereas a family member living with the survivor may be frowned on as wanting money rather than making the survivor whole.

The witness should produce examples on how the injury affected the survivor. For example, when victims of head injuries survive car accidents, a nightmare starts with few residential treatment centers taking insurance or insurance not paying for brain rehab, according to The Virginian-Pilot. Treatment usually gets offered only to individuals with private money, workers’ compensation, or a lawsuit settlement. According to the news article, one man, age 23, suffered a brain injury in a car accident in 2006. After a hospital stay and rehab, he returned home to find the part of his brain that controlled impulses not working. When he got angry, he lashed out at people. His mother took care of him, and ended up with bruises, bites, and black eyes. For this man, his mother would be a potential witness on how the injury transformed the him from his prior life.

For a powerful brain injury case, obtain an experienced Chicago attorney who knows what to look for in “before and after” witnesses.

Nursing Home Litigation

When engaging the services of a nursing home, an individual should check how the home is structured and what kind of insurance it has.  If there should be a medical malpractice action, the individual wants to make sure the company has assets and insurance for a recovery.

Some nursing home owners set up multiple corporations, separating real estate or investments from operations, or creating limited liability corporations for each home in a chain.  Nursing homes do this to decrease what they have to pay when there is a lawsuit.

If a patient gets injured without first investigating a home’s finances, it is not too late to do so before filing a lawsuit.  Find out information that will show that multiple entities operated together, with no clear delineation between roles.  Find out all the potentially responsible parties to name in the Complaint.  When different entities are under common control, they may all be liable to a personal injury plaintiff.

Keep all brochures, admission packets, any documents that name the entities related to the nursing home.  Talk to former employees to find out what company name is on their paychecks.

Sometimes businesses use trade names with the public, but operate under other corporate names.  Look in the Secretary of State website to find out the real “corporate” name and officers of the business.  Get the license information, which may show who the nursing home owners are.

Besides the Secretary of State, other sources of public information on ownership and source of finances are prior lawsuits against the home.  Ask the lawyers who worked on the cases for any depositions of the corporate officers. Any discovery in prior lawsuits is public information so the attorneys should not have reasons to object to handing over the depositions.

Also, get Medicaid cost reports from www.cms.hhs.gov, and review Securities and Exchange Commission filings at www.sec.gov to find out about nursing home assets and income.  Cost reports lead a personal injury plaintiff to the people to depose during discovery.  Establish a hierarchy of management by getting a list of all titles and names of persons who hold each job.

Businesses exist to make money, but when a nursing home maximizes revenues by minimizing care, the nursing home should not get away from financial liability by corporate structure when different entities are really acting together in money, property, or conduct.

To get through a medical malpractice case with poise, engage an experienced Chicago personal injury attorney.

What is Discovery?

When an accident happens, the first thing parties should do in a personal injury claim is to investigate. Then, engage an experienced Chicago personal injury attorney who knows about discovery. Discovery is not a substitute for investigation. Without proof, an accident plaintiff will not have enough to get to trial.

In investigation, the plaintiff needs to look over the accident scene, and talk to witnesses. Once investigation is complete, the plaintiff can hand over the data to the attorney for discovery to begin. Discovery translates facts into admissible evidence during trial. An injury plaintiff who understands discovery knows the tricks a defendant may use to dismiss a case.

In a Complaint, a plaintiff seeks admissions by the defendant. The defendant’s Answer will provide some hints on discovery, but the defendant who pleads every possible defense may confuse the plaintiff into thinking the Answer is boilerplate. This leads the plaintiff to overlook the defenses. Then the defendant moves for entry of default or dismissal because the affirmative defenses were not contested. To combat this trick, the plaintiff should reply to affirmative defenses and move to strike those that do not apply. This protects the plaintiff from inapplicable defenses and gets rid of non-issues early.

Another defendant trick is to make a motion to dismiss when the plaintiff does not answer the defendant’s interrogatories submitted at the same time as the Answer. To combat this trick, serve interrogatories with the Complaint or as soon as the rules of civil procedure allow. This makes the defense answer discovery first so the plaintiff gets a leg up on the facts.

Requests for admissions ask a party to admit to whether a statement is true or false. When the defendant responds to requests for admissions in a personal injury case, the defendant may provide long responses that do not answer the questions. To get rid of this, file a motion to deem the admitted the facts the plaintiff wants because responses that do not answer the questions usually do not follow the rules of civil procedure.

Sometimes the defendant does not believe the plaintiff is really injured and makes the plaintiff go to an independent medical exam. This is when the defendant pays for a doctor to examine the plaintiff in the body part claimed to be hurt. The doctor may demean the treating doctor in the medical report like saying the treatment was not necessary or not attributed to the accident. The plaintiff should have someone taking notes at the doctor session to observe what actually takes place. Also, send the medical report to the treating physician. Doctors who insult other doctors will find out they will not have long lasting careers by insulting other doctors.

In a personal injury case, trial makes up perhaps 10% of the game. Trial starts with investigation and then discovery. To navigate through a personal injury action with confidence, engage an experienced Chicago personal injury lawyer.

Punitive Damages for Wrongful Death Not Available Under the Illinois Nursing Home Act

The Illinois Supreme Court recently addressed the question of whether punitive damages for willful and wanton violations of the Illinois Nursing Home Act will survive the death of the deceased. This question is of particular importance to anyone with a family member residing in a nursing home, as it addresses the type of damages that may be recovered by the family as the result of negligent nursing home care, resulting in death.

Punitive damages are damages awarded by a court to the plaintiff and against a defendant, as a punishment to redress an egregious wrong committed by the defendant. Punitive damages seek to punish a wrongdoing defendant, whereas the more commonly awarded compensatory damages attempt to make an injured party (plaintiff) whole by returning them to the position they had prior to the wrongdoing alleged.

In the present case, the decedent died as a resident at the defendant Rockford nursing home.  The complaint filed by the decedent’s estate alleged that the defendant nursing home had acted with conscious and reckless disregard for the decedent’s health and safety and that its actions were willful and wanton. The defendant nursing home preemptively moved to dismiss an award of punitive damages, arguing that punitive damages do not survive the death of the decedent, under Illinois law. On appeal, the Supreme Court ruled that, generally, an award of punitive damages does not survive death, unless expressly noted otherwise by statute. The Illinois Nursing Home Act does not expressly allow for punitive damages and so it was held that punitive damages were not permissible in this case.

Although this decision addressed damages available under the Illinois Nursing Home Act, specifically, it also reaffirmed earlier Illinois case law barring punitive damages in wrongful death actions, generally. In Marston v. Walgreen, 389 Ill.App.3d 337 (2009), for example, the Illinois Appellate Court also held that “actions for punitive damages will not survive the death of the original plaintiff unless the legislature specifically authorizes such an action or there are strong equitable reasons for allowing the recovery of punitive damages.” The court interpreted “very strong equitable reasons” to mean “instances in which a party would otherwise be left without any remedy.”

Paradoxically, punitive damages are available to those merely injured at a nursing home facility, so long as the injured party does not die as a result of the injuries, leading many to grimly conclude that it is cheaper to kill, than to injure, under Illinois law.

 

Medical Malpractice Procedural Rules Must Be Followed

In medical malpractice cases, failing to provide a certification can be fatal to  the case.  735 ILCS 2-622 requires an affidavit and written report to initiate a medical malpractice lawsuit.  The plaintiff was representing himself and had not been able to comply with the statute.  Mainly, when filing a medical malpractice case, the plaintiff must file not only an affidavit, but a written report with the complaint.

Section 2-622 requires the plaintiff’s attorney (or the plaintiff, if pro se) to file an affidavit declaring the following: 1) that the affiant has consulted with a knowledgeable medical professional specifically in the relevant issues in the claim, within 5 years in the same area of health care or medicine has practiced or taught the issue in the particular action, and meets the standards required set forth in section 8-2501; and 2) that the medical expert has reviewed and determined that the medical records support a “reasonable and meritorious cause for filing of such action” and reduced this belief to a written report and that the affiant has concluded based on the health professional’s consultation and review that there is a not only a reasonable. But also a meritorious cause for filing the action;

The medical professional(s) written report, attached to the affidavit, must adhere to the following: 1) a report must be filed for each  defendant; 2) for hospitals, practice groups, etc, the report must be from a doctor who is qualified to state/testify about the standard of care in the case; 3) for individual medical professional, the written report must be from another medical professional that is licensed in the same profession, and within the same class of licensure, as the individual defendant; 4) must identify the “reasons for the reviewing health professional’s determination that a reasonable and meritorious cause for the filing of the action exists”; and 5) must identify the reviewing doctor’s profession, name, address, license number and state of licensure.

If the plaintiff’s attorney, within the two-year statute of limitations period, cannot secure an affidavit from a doctor, the attorney must file an affidavit.  The affidavit must state that the affiant could not seek consultation from a medical professional prior to the expiration of the statute of limitations—thus, the statute of limitations would impair the action.  The Judge will grant the attorney a 90 day extension after filing of the complaint to file the affidavit and medical professional’s written report.

 

Millions given to family in Wrongful-death suit

A $4.5 million settlement was reached in Estate of Krzysztof Bialas v. Advocate Christ Hospital and Medical Center. A 42-year old warehouse worker fractured his pelvis at work, arrived at the Advocate Christ Hospital and died four days later because the hospital staff did not recognize he had a ruptured bladder.  He had been operating a forklift when he injured his pelvis.  According the plaintiff’s counsel, the pelvis fracture was not severe and the hospital was not planning on performing surgery.  From the onset, the nurses allegedly reported that the victim had symptoms that normally necessitating a CT scan. As procedure dictated, the CT scan was performed.  The family claims that results were misinterpreted as negative.

What everyone missed was a bladder laceration that could have been treated very early on with the insertion of a catheter.  A catheter was inserted the next day, but it was already too late.  Because of the bladder laceration, the victim suffered a severe infection, which developed into sepsis. Sepsis can be a potentially deadly medical condition when combined with an infection which causes a whole-body inflammatory state, also called systemic inflammatory response syndrome (SIRS).  In this case, sepsis led to multi-system organ failure and the ultimately death.

Judge Drella C. Savage of the Circuit Court of the Cook County approved the settlement because it was fair and reasonable.  The defense approached the plaintiff early in the case and stated they would like to proceed with mediation.  Plaintiff’s counsel acknowledged that the defense approaching with meaningful negotiations was critical to an early settlement.  This helped both sides save litigation costs and emotional turmoil that the plaintiff’s family would have been put through. At the very least, the large settlement supports the victim’s family and allows his children to attend college.

 

 

 

Preparing for Your First Attorney-Client Meeting

Clients and attorneys alike should be prepared for their first meeting together. The attorney will want to know your contact information, your personal background, as well as the facts surrounding your case, such as the names of the companies and individuals involved.

As the client, you can best prepare for the meeting by organizing your thoughts and questions on paper, and by collecting, copying, and organizing any documents that may be relevant to your case.  Written documentation of your injury and damages, such as medical bills and records, and police reports, may be particularly important. If your injury requires long-term care, or if you have suffered long-term injuries, it may be worthwhile to list the anticipated future costs of such injuries.

Take advantage of the face-to-face meeting with your attorney by preparing your questions beforehand. First, you should determine whether your attorney is qualified to represent you. Don’t be afraid to ask the following questions:

  • How many personal injury trials has she handled? Of those, how many involved your particular injury? What was the outcome?
  • How long has she been in practice?
  • What percentage of your practice is devoted to personal injury?
  • Does she usually represent the plaintiff or the defendant?
  • Will she be personally handling your case, or will her associate?

Be sure to ask to see a potential legal services contract and read it carefully. Because money is of importance to both clients and attorneys, ask:

  • What are her fees? Will she be working on an hourly or contingency basis?
  • Who will be responsible for costs, such as filing fees, service fees, and expert fees? What other costs does she anticipate?

With regard to your particular case, ask:

  • What is the legal process?
  • What complications does she foresee in your case?
  • What possible defenses might be raised?
  • How long will it take to resolve your case?
  • What do I stand to recover?

Do not hesitate to ask questions. A good attorney will appreciate your interest and

participation, and will understand your need to understand the legal principles and procedure involved. Keep in mind that an attorney that is unwilling to devote her attention and time to an initial meeting with you will likely prove even more unresponsive as your case develops.

 

Explaining The Personal Injury Claim Process

From a client’s perspective, a personal injury claim may seem to be a matter of simply filing a complaint and setting a trial date. In reality, it’s a lengthy procedure requiring many different steps, a skillful, experienced attorney, and a committed client. By breaking down the process into five stages, you the client will better understand the time and energy which is required to litigate a personal injury claim, and to understand how to assist your attorney with pre-suit investigation.

Investigation:  The personal injury lawyer’s first task is to obtain as much information as possible from the client. A good attorney will be sure to question the client closely about the circumstances giving rise to the case. In some instances, it will be important for the attorney to conduct legal research, either because the legal questions presented are complex, or to confirm her understanding of the applicable law. Additional pre-suit investigation may include the use of private investigators or experts to better understand complex non-legal issues or professional standards. Although it is common for surprises to arise later in a case, they can be avoided for the most part with a thorough pre-suit investigation.

Pleading: Once the investigation is complete, your attorney will likely commence legal proceedings by preparing a complaint which sets forth your allegations. The complaint is filed with a clerk of court, and the defendant is notified of the pending lawsuit, and given a certain amount of time to respond to the complaint.

Discovery: During discovery the plaintiff and the defendant will exchange information either through documents, or by way of depositions. At this point, attorneys for both sides may dispute the admissibility of evidence, seeking to have it either included or excluded.  At a deposition, both attorneys can question the deponent who must respond under oath. Depositions have many purposes, from collecting or confirming information from witnesses, to finding inconsistencies. Many lawsuits settle during the discovery stage, as both parties weigh the costs and benefits of going to trial.

Trial: At trial, both parties will present their case before a judge or jury, who will then render a judgment based on the evidence and argument presented. In a personal injury lawsuit, the judgment will usually be in the form of a monetary payment, should the plaintiff win the case.

Appeal: If either party is dissatisfied with the judgment rendered, that party may usually appeal the decision to a higher court. In an appeal, the higher court will reveal the lower court’s actions to determine if any material errors were made. The higher court will affirm, reverse, or remand that decision.