Posted On: July 29, 2008

Collapsed Seat In Dodge Caravan Found Unsafe and Cause for Infant's Death

The parents of 8-month-old Joshua Flax filed suit against DaimlerChrysler after their son was killed in a car accident involving their 1998 Dodge Caravan. The wrongful death case centered on the allegedly defective design of the minivan's front seat backs. Jeremy Flax, et al. v. DaimlerChrysler Corp., et al.

Minivan%20Seats.jpgJoshua Flax was in the back seat of the minivan when it was rear-ended. The impact caused the front seat to collapse and its passenger to strike Joshua in the head, fracturing his skull. No other passengers were seriously injured and all parties agreed that Joshua was only fatally injured because of the collapsed seat.

In late 2004, a jury found DaimlerChrysler's seats to be defective and unreasonably dangerous, awarding a total of $105,500,000 to Joshua's parents. This amount was later reduced, but the verdict was upheld all the way through the Supreme Court.

Evidence showed that the seat in question had been failing crash tests for over 20 years. Since the '80's Chrysler had been getting complaints that the seats were collapsing and injuring children. In fact, a former employee testified that he had investigated the seats in the '90's because of all the complaints. He was fired after expressing that he wanted to bring the issue to federal regulators.

In its opinion the Supreme Court stated that the evidence showed that not only had Chrysler ignored customer's warnings and failed to redesign their minivan, but they also hid the evidence. In addition, they marketed their minivan as a vehicle that put safety first.

The minivan has been a symbol of modern American families. When Joshua Flax's family strapped his car seat in they felt confident in the safety of their minivan. But they found out all too soon the error in their perception was from the deception by Chrysler.

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Posted On: July 27, 2008

Do Doctors Listen To Their Patients?

Doctors are trained to diagnose and treat symptoms of illness. Patients come to their doctors with preconceived notions of how they should be medically treated, knowledge gleaned from the plethora of medical information readily available to all on the Internet, books and magazines. More and more patients are finding a gap between their expectations and the reality of their doctor visits.

Some doctors admit that they are squeezed for time, pinched by the insurance company's scrutiny of their submitted reimbursements and pushed to see more patients by their employers and/or partners. The system no longer allows for lengthy, one-on-one visits with your doctor. The result is that more and more patients report that they simply do not trust their physician.

Doctor_Patient.jpgBut what can we do to force our doctor to focus on us? To assert our visit is important and demands his or her full attention and expertise? Do we need to lobby for different rules governing the system? Do we need to pay by the minute so that a physician will review our case until we are satisfied?

There is no need to go to such extremes. By adjusting how you, the patient, approaches the visit you can ensure that you are getting the most out of your doctor.

Patients should be encouraged to enter the exam room with a written list of questions for the doctor they are seeing. And you should insist that the doctor give the necessary time to answer each question. I know of several friends and family members who go to important medical consultations with written questions and a video camera to make sure the answers are well documented for further reflection or to allow for a comparative second or third opinion. Whatever method you use it is important that you are in control of your medical care.

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Posted On: July 23, 2008

Are All Chicago Lawyers Ruthless and Heartless? A Kreisman Law Offices Intern's Perspective

As the junior year came to an end, I knew I wanted to do something more with my summer than sleep in and hang out. With my future looming on the horizon, I also knew it was time to start mulling over many of the agonizing decisions facing me this fall.

Gavel%20Cartoon%201.jpgThe piles of college mail gathering dust on my kitchen counter, agonizing career-planning meetings with my counselor, and the cornucopia of job fairs taking place each weekend all had me thinking. Each time I ripped open another envelope, sat down for another discussion, or wandered aimlessly about the aisles of a fair, I felt hopelessly lost. How am I expected to choose my career path based on a few pamphlets or a couple pieces of advice? As a rising senior in a Chicago area high school, I finally realized that what I really needed was what hours in a high school classroom could never give me: hands-on experience.

That’s what landed me here, as a summer intern at Kreisman Law Offices in Chicago. I’d always been told I’d “make a great lawyer”, but most of the people telling me this had little to no experience in law, and were probably only remarking on several qualities they assumed to be the makings of a lawyer. Still, it sparked my interest.

To me law is an exciting field: one that was always changing, yet had a constant novel purpose. However, I also heard horror stories of lawyers acting as money-hungry, self-absorbed, and ruthless liars or cheaters. But I discovered that both the public' and my images of the modern attorney are completely false. The word ‘lawyer’ is not one-size-fits-all. My internship here at Kreisman Law Offices gave me a crucial backstage pass to the real substance of law, and how it functions on a day-to-day basis.

My experience here can only be described as priceless. Sure, I picked up a general knowledge of the court system, a smattering of law vernacular, as well as basic job experience. And of course I also gained a fundamental understanding of the differences between different types of firms, lawyers, and courts. I was taught how to abstract depositions, research law, and use databases, all of which were great learning experiences.

But if there’s one thing that these generous people have taught me that I was not expecting to learn, it’s that all lawyers are most definitely not the same. I was finally able to realize that lawyers are not defined by their title, but rather they are free to mold their own unique careers, very different, if they so choose, from any other lawyers.

My experience with Robert Kreisman in particular made me realize that it’s possible to be a committed and passionate lawyer and an honest and caring human being all at the same time. I now know that those lawyers who cut corners and make manipulative deals do so by choice, and more importantly, that if I were to become an attorney, I could make that same choice based on my own character.

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Posted On: July 21, 2008

Chicago Hospital Sued for Overcharging Uninsured Patient: Illinois Appellate Court Upholds Hospital's Right to Charge Different Rates

Antonio Galvan, uninsured, sued Northwestern Memorial Hospital once he discovered that he was charged twice as much as an insured patient would have been for the same services. He alleged that the Chicago hospital's practice of differentiating between uninsured and insured patients constituted unfair and deceptive conduct under the Consumer Fraud Act.

Money%20Dollars.jpg Plaintiff Galvan was taken to Northwestern Memorial Hospital in Chicago by ambulance after being injured in an automobile accident. Upon his discharge 15 days later he was presented with a hospital bill for $87,033. In his claim against Northwestern he alleged that their practice of billing uninsured patients twice the amount of insured patients was unfair and deceptive.

When measuring unfairness in Galvan, the Illinois Appellate Court considered "(1) whether the practice offends public policy; (2) whether it is immoral, unethical, oppressive or unscrupulous; and (3) whether it causes substantial injury to consumers."

According to the court, Galvan failed to consider an important fact in his arguments- that there is an obvious difference between an insured and uninsured patient and that it is therefore reasonable to treat them differently. An insured patient pays insurance premiums and in return is awarded a lower service rate. The hospital offers this lower rate because they are guaranteed payment from an insured patient and his/her insurance company. Whereas there is no such guarantee from an uninsured patient.

An insured patient routinely pays for medical expenses in the form of insurance payments and is rewarded with reduced hospital bills. But an uninsured patient doesn't have the added expense of insurance payments so is hit with a larger bill. The court felt this was a fair practice and that the amount charged by Northwestern did not qualify as "exorbitant".

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Posted On: July 17, 2008

Chicago Medical Malpractice Lawyer Bob Kreisman Attends Annual AAJ (American Association of Justice) Convention

Chicago medical malpractice lawyer, Bob Kreisman, attended the American Association of Justice annual convention in Philadelphia from July 12 through July 16, 2008. The meetings were held in Philadelphia's Center City, in the shadow of its famous city hall. The conference had seminars for every field of trial practice. Liberty%20Bell%20Alone_2.jpg

For those who were particularly interested in the upcoming elections, there were luncheons, town hall meetings and late night discussions. Senator Claire McCaskill of Missouri spoke with Kansas governor Kathleen Sebelius. Pennsylvania's governor Ed Rendell and Senator Arlin Specter, also of Pennsylvania, drew large crowds to different events. Also, nominees for both the House of Representatives and Senate were on hand for speaking engagements. Minnesota's democratic hopeful Al Franken spoke on Monday afternoon to a packed house with Governor Brian Schweitzer of Montana.

I found the few days of the meeting inspiring. While I was impressed with the speeches of the many talented, bright politicians, I was also energized by my own colleagues speaking about the things that I do in my trial practice day after day. Groups of us met between meetings to discuss our own cases and compare our approaches and style in presentation.

Putting on jury trials is a long process, but the lawyer leads the way, much the way a director styles a play or movie. Does the story of the case begin on day one, or as in the movie, "Saving Private Ryan", does it start at the end, at the grave site of those who gave their lives to save this private (now an older man)? Strategy is vital. How will the story of my case play to the audience, the jury? How will I know what themes work best, what order and who are to be the stars? The very simple answer is focus groups; that is practice trying the case briefly in front of a sample audience to test themes, exhibits, the biases of audience for this case.

The takeaways were many. Those are the valued pieces of knowledge, ideas that come from five days of exchanging experiences.

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Posted On: July 16, 2008

Product Liability Litigation Avoided by Cook County Car Dealership: Illinois Appellate Court Clarifies Product Defect Statute

1flag%20car%202.jpgDefendant Mancari's Chrysler Plymouth dealership in Cook County lucked out with an ideological “get out of trial free” card in a product liability case involving a car sold at his dealership. Murphy v. Mancari's Chrysler Plymouth, Inc. 2008 WL 927727.

The Illinois Appellate Court's clarification of section 2-261 of the Illinois Code of Civil Procedure makes it easier for non-manufacturers to be dismissed from strict product liability cases in Illinois. The relevant section states that

"A court shall not enter a dismissal order relative to any certifying defendant or defendants other than the manufacturer . . . where the plaintiff can show . . . That the defendant had actual knowledge of the defect in the product which caused the injury, death or damage". 735 ILCS 5/2-621(c)(2).

So if plaintiff could prove that the defendant knew about the product defect then the defendant could not be dismissed from case. However, Murphy takes this interpretation a step further to determine whether it is enough that defendant just knows about the alleged defect or whether they need to know that the defect makes the product unreasonably dangerous, too?

In Murphy, Plaintiff Joseph Murphy claimed that he was paralyzed in a rollover accident because his Sebring lacked a roll bar safety device. He alleged that Mancari’s Chrysler Plymouth sold him a Sebring that was unreasonably dangerous because it lacked a roll bar. Mancari confirmed that they knew that the vehicle did not have a roll bar, but still claimed that this did not make them directly responsible.

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Posted On: July 14, 2008

Apparent Authority: Who is Your Doctor Really Working For?

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When you go to the hospital for a surgery you are seen by a bevy of treaters- anesthesiologist, surgeon, attending physician, residents, etc. And all of them are employed by the hospital, right? Wrong. Many of the physicians that practice at a hospital are actually independent contractors and the hospital can argue that it has no liability for medical negligence these individuals commit- even while working on their property.

In order to bring a claim against a hospital for medical negligence in Illinois by a non-hospital employed physician who provided services at the hospital, there needs to be "apparent authority". Apparent authority deals with whether the physician appears to be an agent/employee of the hospital or clinic and has the power to act on their behalf. So if a patient can prove that they thought their physician was employed by the hospital and that it was reasonable for them to do so, then the hospital is liable for the negligent physician.

The current case law relies on the decision in York, M.D. v. Rush Presbyterian St. Luke's Medical Center, et al. (2006 WL 1702529), an Illinois case based locally in Chicago. York established that because a patient relies upon a hospital to provide services during the course of his or her stay then they make hold the hospital liable for negligence by those performing those services, even if they are not employed by the hospital.

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Posted On: July 11, 2008

Be Your Own Best Advocate: How Being Proactive in Your Own Care Can Improve Your Medical Outcome

Patient responsibility is a common phrase bantered around in medical negligence cases. It refers to the patient's obligation to accurately represent their symptoms and complaints. The main reason this is an issue hinges on the fact that a large part of what a treating physician relies on, at least in the initial contact with a patient, is the patient's subjective telling of his or her complaints.

879205_stethoscope.jpg For example, if a patient presents with a persistent cough but isn't sure for how long this makes a large difference in the initial work-up by the physician. A cough is not a red flag for a serious, life-threatening disease and oftentimes is indicative of nothing more than a common cold. However, when combined with other factors, such as a history of smoking, recent unexplained weight loss, or bloody phlegm, it can be a clue to a more serious problem.

Gone are the days when our local family doctor took care of us from childhood through adulthood and knew all our family's medical history. Nowadays a yearly check-up with your primary physician is comprised of a quick interview with a nurse and then an even quicker visit with the doctor. Most physicians don't spend a lot of time prodding and considering each individual question. They expect that you will tell them concisely what is wrong, give them all the relevant information, and then they will diagnose and treat you. But it really isn't that straightforward. In order to ensure that you get the most out of any physician encounter, and are receiving proper treatment, you need to be your own advocate.

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Posted On: July 9, 2008

Medical Malpractice Verdict Affirmed by Illinois Appellate Court: Good Samaritan Act Does Not Apply

1028001_helping_hands_4.jpgA Lake County, Illinois circuit court presided over Muno v. Condell Medical Center, et al., (No. 2-06-0587), a medical negligence case where a minor died after the planned surgery failed with respect to the anesthesiology provided. In this case, the anesthesiologist and his group decided not to bill the family after this child died during surgery. When the family brought suit against the anesthesiologist for his anesthesiology error, the physicians argued that he should be immune from any legal action under the Good Samaritan Act because he did not bill for his services.

Good Samaritan Act Regarding Exemption from Civil Liability for Emergency Care

Any [physician] who, in good faith, provides emergency care without fee to a person, shall not, as a result of his or her acts or omissions, except willful or wanton misconduct on the part of the person, in providing the care, be liable for civil damages. (745 ILCS 49/25)

At the bench trial the jury ruled in favor of the child's family . But one of the defendants, an anesthesiologist, appealed the verdict stating that the court should rule in his favor because he didn't bill the family for his services. The appellate court relied on Estate of Heanue v. Edgcomb for the proposition that a doctor cannot simply withhold a bill to the injured patient and stand behind the immunity provided by the Good Samaritan Act each time he/she choses not to diagnose, treat or simply errors causing injury or death to a patient.

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Posted On: July 7, 2008

NHTSA's Roof Crush Standard: Opponents Decry as Ineffective and a Smokescreen for Stripping Consumer's Legal Rights

NASCAR driver Michael McDowell walked away from a violent rollover crash during a race at the Texas Motor Speedway earlier this year. After skidding into a wall and flipping across the track several times he climbed out of his crashed vehicle unhurt. This complete lack of injury is unimaginable in your typical car, but NASCAR vehicles come equipped with roll bars to prevent roof crush in rollover crashes.

Unfortunately your typical street car doesn't come equipped with as stringent safety standards as those enforced by NASCAR. Currently the roof crush standard in the United States requires that the roof must be able to withstand pressure of at least 1.5 times the vehicle's weight. This is the same standard which was established in 1973 and has remained unchanged since its inception. In 2005 Congress proposed that the National Highway Traffic Safety Administration (NHTSA) upgrade its standards in an effort to reduce injuries and fatalities from rollover crashes.

XC90-rollover-test-resized_1.jpgRecently NHTSA came to Congress with a proposal for increasing the weight ratio to 2.5. The minimal increase has drawn a lot of controversy with its opponents calling the increase ineffective. In 2007, over 10,000 people died in rollover crashes. In Illinois there were over 5,000 rollover accidents in just 2006. Yet the NHTSA estimates that its proposed increase would only result in 13 to 44 fewer rollover fatalities a year. Senator Tom Coburn (R-Oklahoma) stated, "If we have a little increase in roof strength that doesn't result in a major decrease in injuries and fatalities, we've done nothing."

And while the ratio change is minimal and drawn criticism as being ineffective there is another controversy surrounding the bill. Possibly worse yet the NHTSA proposal has a throw in; the agency inserted language which would preempt accident victims from suing any manufacturer who met the minimum standard.

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Posted On: July 4, 2008

Chicago's Diversity Highlighted in Its July 4th Festivities

This 4th of July was the 232rd birthday of the United States. John Adams called the day in 1776: "a day of deliverance", with "...pomp and parade...shows, games, sports, guns, bells, bonfires and illuminations from one end of this continent to the other from this time forward forever more." And that sense of revelry has continued to this day, as can be seen in Chicago's lavish and extensive July 4th celebrations.

Taste%20of%20Chicago.gifThe fun kicks off early in Chicago with its annual Taste of Chicago. Starting on June 27th thousands of people flocked to Chicago's lakefront to partake in the many and varied vendors. There are the old standbys, like the traditional cheesecake from Eli's Cheesecake, deep dish pizza from Lou Malnati's Pizzeria, or the huge turkey leg from Helen's Restaurant. But for me no trip to the Taste would be complete without a waffle cone overflowing with rainbow ice cream from the Original Rainbow Cone. And of course, any time you need a break from the endless rows of vendors you can veer off the main drag and listen to the many bands the Taste offers. Or you can just take a step back and people watch. The Taste attracts all sorts- from kids filling up their lazy summer days, out-of-town visitors trying to get a sense of Chicago, serious foodies with an extensive rating system for all the booths, or the suit-wearing business people running over for a quick bite during lunch. The Taste truly has it all and is a perfect way to jump start the July 4th festivities.

And in case you couldn't wait til July 4th to get your fill of fireworks Chicago does their display on July 3rd. July%204th_1.jpgThe streets close down as millions of people make their way to Chicago's lakefront to stake out their spot for watching the show. Hours beforehand you can see endless streams of people flooding the streets, all moving in the same direction. Then as it approaches 9:30 p.m. the crowds slowly start to settle as people find their way to their patch of grass. Then all eyes look towards the sky as it begins to erupt in color and sound. This year was perhaps the best display I've seen as each year Chicago strives to top its previous performances. The wide range of vibrant colors and different types of explosions, and all put to music, truly makes for an overwhelming experience that culminates in the intense spectacle of the finale. After it was over I looked around and saw the same awe and wonder on the face of everyone around me- no matter what your background or age the fireworks made an impression.

Evanston%20July%204%20Parade_4.jpgThen on the 4th itself there are several local parades to choose from. I attended the Evanston parade. It was a glorious day, loaded with floats, marching bands, politicians, school groups, theater companies, children by dozens, tumblers and just nice people handing out cold bottles of water to the more than 100 groups making up the parade. By the 2 p.m. start of the parade the curbs were lined four and five deep with families, friends and dogs. People on roller blades, bicycles, stilts and motor bikes were evident. The sun was out, the humidity was low and the enthusiasm abounded. The strength of the gathering may not have only been in the numbers who marched or watched, but in its diversity. The paraders and the viewers represented literally every imaginable group, religion, creed, organization, cause, preference, economic background, race and view.

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Posted On: July 2, 2008

District of Columbia v. Heller: U.S. Supreme Court Upholds 2nd Amendment Right to Bear Arms

June 26, 2008- The U.S. Supreme Court ruled that the District of Columbia's total ban on handguns violates the Second Amendment and its protection of an individual's right to possess firearms.

230024_m92f%20gun.jpgD.C. law bans handgun possession by making it illegal to carry an unregistered firearm and prohibits registration of handguns. It also states that no person may carry an unlicensed handgun, but police are allowed to issue 1-year licenses. Residents who lawfully own firearms must keep them unloaded and disassembled, or bound by trigger lock or similar device.

The case was brought by Heller, a local policeman who was denied a license to keep his handgun at home. He hoped to enjoin the city from continuing its bar on handgun registration which prohibits carrying an unlicensed firearm in the home and also from its trigger lock requirement prohibiting the use of functional firearms in the home.

The ink on the opinion was not dry before Second Amendment groups filed suit in the federal court in Chicago challenging the city's handgun ban. Lawsuit challenges to the local ordinances of other city gun bans are planned or filed for Evanston, Oak Park, Wilmette and others.

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