Chicago Personal Injury Lawyer Blog

New Year's Eve is a time to celebrate the coming of 2009. Restaurants and bars in Chicago and nationwide are lively as many celebrate the holiday and the arrival of the new year with drinks and merriment. It is easy to imagine that New Year’s Eve is a risky time for drivers and pedestrians in Illinois and the rest of the states.

Holidays in general are the most hazardous times for drivers due to sharp increases in traveling and drunken driving. And when it comes to New Year’s Eve, research offers sobering statistics.

From 1986 to 2002, the Insurance Institute for Highway Safety (IIHS) has researched accident data in the United States, New Year's Day ranks fourth in terms of most accident-related fatalities on a given day. Coming in at first and second are the 4th and 3rd of July, followed by December 23rd. Based on these statistics New Year's Eve and Day are not the riskiest days of the year to be out celebrating.

Yet a closer examination of the statistics reveals something peculiar. While it might not be the deadliest day for those in vehicles, it is the deadliest day of the year for pedestrians. According to the IIHS study, New Year's edged out Halloween as the having the highest incidences of pedestrian deaths. On New Year's a large majority of these deaths can be attributed to the increase in drinking and celebrating. Half of the deaths involved alcohol impairment and 58% of the pedestrians who were killed had a high blood-alcohol concentration.

So this year when you are out celebrating the end of 2008 and the beginning of 2009, please remember to be safe and responsible. Happy New Year from the staff at Kreisman Law Offices.

Continue reading " Is New Year's Eve The Most Dangerous Time of the Year to Be On the Road? What About for Pedestrians? " »

According to a study published in 2003 by the Office of Inspector General’s (OIG), deficiencies in nursing homes increased between 1998 and 2001. Although there appeared to be considerable variation with states regarding the average number of deficiencies per home and the percentage of nursing homes with deficiencies.

In the past 3 years the instances of nursing home deficiencies in Illinois and nationwide has risen to over 91 percent. A "nursing home deficiency" would be anytime a nursing home fails to comply with federal requirements and standards. The most commonly cited of the 16 possible deficiencies were in terms of quality of care, quality of life, and resident assessment.

As stated by the OIG analysis of data, in 2007 Illinois suffered an average of 5.3 deficiencies per nursing home surveyed, while the national average in 2007 was 7.0. Even though Illinois nursing homes fared better than many other states, over 90% of nursing homes in Illinois had deficiencies. Although this is an alarming number, it is below the national percentage of nursing homes with a deficiency of 91.9%.

Continue reading " National and Illinois Nursing Home Deficiencies On the Rise " »

Every year as the holidays approach I like to look back and reflect on the past year. What first comes to mind about 2008 are the political mile markers on both a national level with the presidential election, but also at a local level with the federal charges surrounding Illinois governor Rod Blagojevich. Hopefully 2009 brings less scandal to the windy city of Chicago.

At a more personal level, I am grateful to my staff for all their hard work this past year. Time and time again they show me their commitment to Kreisman Law Offices and I don't know what I would do without them. We recently celebrated the year end together with our annual holiday outing to a Chicago restaurant. It's nice to take time away from our hectic work pace and enjoy each other's company.

And as the U.S. enters a new recession I appreciate even more the things in my life that no amount of money can buy- my family, my friends, and my health. While 2008 was a good year I am ready to take on 2009 and all its new opportunities and experiences.

So from myself and the rest of us at Kreisman Law Offices, have a safe, healthy, and happy holiday and our best wishes for the coming year.

Continue reading " Happy Holidays from Chicago Attorney Robert Kreisman " »

Consider a case where an Illinois roofer was burned when a tar pot ignites. This construction worker can claim damages against the site developer for negligence. Many building project developers are mindful of the fact that many workers in the construction industry are exposed to dangerous conditions. But in some cases a project owner's negligence may result in a subcontracted workers' injury, in which case the project owner would be liable.

This situation applies when the control of the job's safety clearly rests in the hands of the builder or owner of the project. The relevant company can be held responsible for a construction accident when one of its workers is placed in such a dangerous situation that his/her injuries were foreseeable and predictable.

Let's return to the example of the roofer working with a pot of molten hot roofing material that resembles tar. This heated material is smoothed over the roof and will waterproof the roofing surface once it cools and hardens. In order to get this roofing material up to the roof that may be some 30 feet above ground, several construction workers must hoist the heated containers to the roof. Dealing with such burning hot material is inherently dangerous and requires the owner to provide a safe environment in which to complete this process.

Continue reading " Illinois Construction Workers Can Recover For Burn Injuries " »

In a recent and controversial accusation, Elsevier has been questioned about publishing favorable medical reviews of pharmaceutical company Wyeth's hormone replacement therapy drug. The allegations claim that the medical publishing editors at Elsevier were not unbiased, but received payment from Wyeth. In response to these accusations, Elsevier has launched its own investigation into the legitimacy of the claims.

Senator Charles E. Grassley, Iowa (R) was the person who first questioned the article. As a member of the Senate Finance Committee, Grassley is investigating drug companies' influence on doctors and contends that Wyeth, the pharmaceutical giant, commissioned ghostwriters to plug its drugs through several academic journals, including perhaps Elsevier.

The Elsevier article in question by Dr. John Eden was published in a May 2003 issue of the American Journal of Obstetrics & Gynecology. Progestins and Breast Cancer (Am J Obstet Gynecol 2003;188:1123-31), stated that drugs such as Wyeth's Prempro could not be tied to breast cancer as there was "no definitive evidence" that the hormones caused breast cancer. Eden's article was published a little over a year after a landmark federal study linking Wyeth's Prempro hormone product to breast cancer.

Continue reading " Are Pharmaceutical Companies Ghostwriting Their Own Praises? " »

A California organ transplant surgeon was acquitted in a criminal action that alleged he had intentionally harmed a donor by prescribing excessive amounts of drugs in order to speed up the extraction of the patient’s kidney and liver. The surgeon's attorney argued that the doctor had flown in from his San Francisco offices in order to retrieve the organs and had prescribed medications in attempts to ease the patient’s suffering after other doctors had failed to perform their duties.

Dr. Roozrokh, the transplant surgeon, was found not guilty of a felony count of abuse of a dependent adult. Two other charges for administering harmful substances and unlawful prescription medicines had both been dropped last spring.

This San Francisco jury trial drew attention to the medical and ethical issues surrounding the complexities of organ transplantation. Typically medical transplant cases are medical malpractice lawsuits, not criminal cases. In Illinois, these cases typically involve some sort of medical transplant error, whether infection or diseased donated organs. This is believed to be the first instance where a doctor had been accused of such criminal actions.

Continue reading " Organ Transplant Surgeon Cleared of Harming Organ Donor " »

In the 1970s the occurrences of colon cancer were equal for blacks and whites. Then in the mid-1970s blacks began to show higher rates of colon cancer, with a large jump in black mortality rates in the 1980's. The American Cancer Society stated that current instances of colon cancer are 50 percent higher in blacks than in whites.

Experts blame this trend on the lower rates of screening among blacks as compared to whites, and less access to quality healthcare. Physicians have encouraged colon screening as a way to early diagnose any colon problems, including colon cancer. Currently the screening rate for whites is 50 percent compared to 40 percent for blacks.

Yet if this were the reason for the widening gap then Hispanics, who traditionally undergo even less regular screening and have lower quality healthcare than blacks, would have higher rates of colon cancer than blacks. But in reality Hispanics are less susceptible to colon cancer than both blacks and whites, despite a screening rate of only 32 percent.

This paradoxical lower death rate is not unique to colon cancer. Researchers have found that poorly insured Hispanics have fared better than whites and blacks in several measures of cancer and heart disease.

Physicians admit that there is no reasonable explanation for the disparity in the rate of colon cancer deaths among whites, blacks and Hispanics. However, physicians recommend that everyone get regular check ups and colonoscopy exams from age 50 and up.

Continue reading " New Study Finds Widening Gap in Colon Cancer Occurrences Among Different Races " »

Recent studies have shown that decreasing body temperature through the use of the therapeutic hypothermia method increases the chance of surviving a heat attack. The practice of cooling patients was endorsed by the American Heart Association in An Advisory Statement by the Advanced Life Support Task Force of the International Liaison Committee on Resuscitation , and is starting to influence hospital critical care practices nationwide. Therapeutic hypothermia involves cooling the body's temperature for 24 hours and then gradually returning it to normal temperature in an effort to slow cerebral metabolism.

The University of Chicago Hospital has adopted the practice and developed a Therapeutic Hypothermia Protocol for dealing with emergent cardiac arrest patients. Other cities have taken it a step farther by requiring that hospital emergency rooms are capable of performing therapeutic hypothermia.

On January 1, 2009, New York City will institute a rule that ambulances may only transport certain cardiac arrest patients to hospitals that have cooling systems available, even if it is not the closest hospital. The idea behind this new initiative is that the benefits of therapeutic hypothermia outweigh the benefits of a speedy arrival at a hospital.

Continue reading " Therapeutic Hypothermia: Studies Show it Could Effectively Treat Cardiac Arrest " »

Illinois Attorney General Lisa Madigan has submitted a motion to the Illinois Supreme Court to requesting the removal of Illinois Governor Rod Blagojevich from office.

The motion challenges Blagojevich's fitness to hold office and serve as Illinois’ governor following the governor's recent arrest. The complaint filed under United States of America v. Blagojevich, et al. includes two counts accusing the governor and his chief of staff, John Harris, of dishonest dealings such as the “senate seat shakedown” and other crimes connected to the office of the governor.

While Blagojevich has yet to resign, his chief of staff, John Harris, stepped down today. The Harris resignation came in as the Illinois Attorney General was filing her motion with the Illinois Supreme Court to force the governor out of office. Many hope that Blagojevich will follow his chief of staff's example.

There has been overwhelming cries from top to bottom in Illinois for Blagojevich to resign. But in spite of those many and influential loud voices, he remains in office currently. If and when he does resign, the governor's duties would temporarily be taken over by Lt. Governor Patrick Quinn.

The current scandal calls to mind such disgraced politicians as Richard Nixon to the Elliot Spitzer. It may not be long before Blagojevich himself is the one standing at a podium bidding farewell to his office that has been thrown into chaos following the allegations of his wrongdoings.

Continue reading " Illinois Governor Blagojevich Has Yet to Resign Even as His Chief of Staff Resigns " »

It has become more commonplace in Chicago medical circles to order an MRI scan early on in the assessment process. Most Chicago and Illinois doctors view MRI scans as a useful tool to get to the bottom of a patient's symptoms and aid them in diagnosing problems from headaches to foot aches.

For example, if you come in complaining of constant knee pain then your physician may order an MRI scan. Let's say that the MRI scan shows torn cartilage and your physician tells you that surgery is the only way to relieve your pain and fix the problem. So you undergo surgery and then physical therapy, but still are experiencing the same pain. Eventually you find out that the torn cartilage was not responsible for your pain- your newly diagnosed arthritis was.

More and more we see patients who have some sort of irregularity on an MRI scan that may not necessarily be responsible for their medical problems. This is a particularly prevalent problem among the millions of people who go to doctors complaining of constant pain. Many of these patients demand that a scan be done to determine why their pain persists.

But in many cases it's not clear whether what is shown on the scan is the real cause of pain. Take our above hypothetical- the scan did show torn cartilage which in time was determined to not be the pain's cause, but not until after numerous procedures and many dollars later. This lack of a definitive cause is leaving many people in a medical conundrum of whether to have what amounts to unnecessary surgery that could make their condition worse, or do nothing decisive at all.

Continue reading " When MRI Scan Shows Abnormalities They May Not Be the Cause of the Problem " »

U.S. District Court Judge Virginia M. Kendell denied a Chicago woman's medical device liability claim that her left knee injuries were caused by her knee replacement device. The complaint was removed to the federal court from Chicago's Cook County Circuit Court and contained claims of negligence, strict liability and breach of warranty based on Illinois law.

Judge Kendall granted summary judgment in favor of the the manufacturers, Zimmer Holdings, Inc., Zimmer U.S., Inc., and Zimmer, Inc., in a lawsuit brought by the plaintiff, Joyce Link.

After reviewing the case facts, Judge Kendell held that Ms. Link's claim against Zimmer for their manufacturing of the Natural Knee II was preempted under the Medical Device Amendments (MDA) to the Food, Drug and Cosmetic Act. Per Judge Kendall's ruling this act “imposed detailed federal oversight onto the introduction of new medical devices onto the introduction of new medical devices onto the market”. Judge Kendall credited her interpretation of Riegel v. Medtronic, 128 S.Ct. 999 (2008), as partial basis for her opinion.

In addition, Judge Kendall cited 21 U.S.C. § 360(c), which states that as part of the oversight states and their subdivisions are barred from implementing their own requirements concerning medical devices, such as the Natural Knee II. The federal act specifically preempts any state requirement regarding a medical device “which is different from, or in addition to” a requirement imposed by the MDA.

In Judge Kendall's opinion, the state requirement is not preempted unless it also “relates to the safety or effectiveness of the device or to any other matter” covered by the MDA. Kendall held that Ms. Link's claim was just the kind that Congress intended to preempt under the MDA.

Continue reading " Chicago Plaintiff's Medical Device Lawsuit Denied by Illinois U.S. District Court Judge " »

The Illinois Supreme Court reversed a $27 million jury verdict award and ordered a new trial after applying the risk-utility test of Illinois product design liability in favor of the defendant. This is a new application of the risk-utility test, which typically falls in favor of the plaintiff.

Illinois' strict design defect theory applies one of two tests to determine whether a product is unreasonably dangerous. The first test is the “consumer expectation” test, under which the plaintiff must show that the product is more unreasonably dangerous than a typical consumer would realize when purchasing it.

The other test is the “risk-utility”, or “risk-benefit” test. Under the risk-utility test the consumer must prove that the danger associated with a product outweighs the product's benefits. Under the risk-utility design the product manufacturer may also prove that the product's benefits outweigh the risk of danger inherent in the product's design.

In Mikolajczyk v Ford Motor Co, 2008 W.L. 4603565 (Ill.Supp.Ct. 2008) , the Supreme Court applied the risk-utility test to determine whether the product was defective under Illinois law. In Mikolajczyk, the plaintiff died of injuries sustained when another vehicle crashed into the rear end of his Ford Escort. His widow brought a claim regarding the defective design of the driver's seat against the Ford Motor Company and Mazda Motor Corporation.

Continue reading " Product Liability Case Reversed When Illinois Supreme Court Upholds Risk-Utility Design Test " »

Illinois remains one of only three states that does not have a motorcycle helmet law; Iowa and New Hampshire are the other two states. The rest of the US states currently have some sort of motorcycle helmet law in place.

Yet the degree of these laws vary from state to state, with some requiring only a limited population of motorcycle riders to wear helmets. For example, over the past ten years Arkansas, Florida, Kentucky, Pennsylvania and Texas have all changed their motorcycle helmet laws so that they only apply to younger riders.

However, not all states are going from strict to lenient laws, Louisiana recently moved from a partial to a universal motorcycle helmet law. Currently only 20 states require universal helmet use 100% of the time, while the other 27 states enforce laws covering only some motorcycle riders.

As the helmet laws change researchers are able to obtain data to study the effects of state laws on motorcycle helmet usage and the associated instances of motorcycle deaths and head injuries. While having universal helmet laws reduce death and serious injuries from motorcycle accidents, the same doesn't hold true for partial helmet laws. This is in part because these partial laws are widely disobeyed. Weakening or repealing motorcycle helmet laws results in a sharp reduction in helmet use, which is then followed by a significant increase in injuries and deaths.

Texas is a perfect example of this trend. Between 1968 and 1977, Texas's universal helmet was estimated to have saved 650 lives. However, it was later amended to cover only motorcycle riders younger than 18 years-old. That weakening in its law was followed by a 35% increase in motorcycle fatalities.

Continue reading " Motorcycle Helmets Not Required by Illinois Law " »

Since early 2006, drug and medical device companies have been on an unprecedented roll as pre-emption clauses become more and more prevalent. Despite recent controversies over prescription drugs like Vioxx and Celebrex, drug companies continue to successfully utilize Federal Drug Administration (FDA) policies to shield drug companies from civil lawsuits in the form of pre-emption clauses. This has far-reaching effects on pharmaceutical liability lawsuits in Illinois and the rest of the country.

And not just the FDA are upholding and propagating these preemption clauses- the U.S. Supreme Court has also supported pre-emption laws that prevent claimants from filing civil law suits against deep-pocketed drug and medical device companies in state courts.

The beginning of the preemption era can be traced back to January 2006, when the FDA issued a statement of its new labeling policy under the “Requirements on Content and Format of Labeling for Human Prescription Drug and Biological Products.” This policy not only set out labeling requirements, but also deemed that if the FDA approved the labeling then this alone "pre-empts conflicting or contrary state law”.

The federal pre-emption clauses have little or no bearing on FDA drug recalls, which can be initiated by the FDA, by FDA statutory authority, or by the drug company itself. The FDA maintains a list of recent drug recalls.

Yet the seemingly simple pre-emption declaration had far-reaching effects within the legal community and reversed decades of policies enforcing state's rights to civil enforcement of liability law. This was done without a public notice or hearing- instead it was quietly tacked on to the labeling policy.

Continue reading " Pharmaceutical Liability for Prescription Drugs Possibly Pre-empted by FDA Regulations and Policies " »