Chicago Personal Injury Lawyer Blog

Motorcycle Accident Fatalities Give Rise to New Safety Regulations

2008-11-19T16:24:02Z

According to the National Highway Traffic Safety Administration (NHTSA), motorcycle fatalities have risen 127% since 1997 and now account for 11% of all motor vehicle deaths annually. In 2006 alone about 88,000 riders were injured.

Speculation about the increase in motorcycle injuries in Illinois and the rest of the county points to increased motorcycle sales, more powerful engines, and more older riders picking motorcycling up as a new hobby. Currently motorcycles account for about 2.4% of all registered vehicles. As a solution, the NHTSA is proposing tougher standards for helmets and more pretesting on motorcycle brakes.

Even though wearing a helmet can reduce the risk of dying in a motorcycle crash by 37%, the majority of riders are either wearing non-compliant helmets or no helmet at all. This is in part because over half of the states do not require motorcycle drivers to wear helmets. But even in the states where FMVSS 218-compliant helmets are required there are problems with counterfeit DOT decals that motorcyclists are placing on non-compliant helmets to fool law enforcement officers.

]]> The new amendment NHTSA is proposing regarding helmets would make it harder to counterfeit the DOT decals in efforts to increase compliance in states where helmet laws are already in place. NHTSA is also proposing enforcing the current test standards for helmets by implementing new tests that would further explore the effect of a crash on the helmets. By increasing the degree of the tests the hope is to weed out those helmets that would perhaps have passed less strenuous tests.

NHTSA is applying the same philosophy to their proposed changes regarding motorcycle brakes. The new proposal calls for an added dry brake test that would essentially test each brake individually when the motorcycle is at its full load capacity, as well as a new test to assess the brakes' performance at high speeds. And as with many new agency measures passed under the Bush administration there is a preemption clause included in the regulation.

It is anticipated that the motorcycle industry will be open to adopting some of the proposals, but will challenge others. It remains to be seen whether the proposals eventually adopted will effectively reduce the frequency of motorcycle crash fatalities.

Kreisman Law Offices has been handling motorcycle accident and auto accident cases in Illinois for over 30 years, in such areas as Bridgeview, Chicago, Forest Park, and Oak Park.

Illinois Supreme Court Holds for Injured Worker

2008-11-17T16:25:08Z

The Illinois Supreme Court recently affirmed a ruling by the Illinois Appellate Court in favor John Van Cleve, a Maxit employee, who was injured while working. Maxit, Inc. v. John Van Cleve, et al., No. 105532.
Van Cleve was driving during his working hours when he was injured in car accident. He filed both a claim under his employer’s underinsured-motorist policy and a workers' compensation claim against his employer. In 2004 he settled the underinsured-motorist claim for $800,000, which was to compensate for his injuries. At that point Van Cleve signed a document releasing his employer from any future claims.

Then in 2005, Van Cleve and Maxit, his employer, agreed to a $200,000 settlement of Van Cleve's workers' compensation claim. The settlement agreement was approved by the Industrial Commission, which is the court that handles all workers' compensation claims.

However, even though they had agreed to the workers' compensation settlement, Maxit later filed a lawsuit against Van Cleve alleging that he was not entitled to the workers' compensation payment because of his earlier underinsured-motorist settlement. The trial court ruled in favor of Maxit and agreed that the earlier release barred Van Cleve from further recovery under the Workers' Compensation Act.

]]> The trial court's decision was appealed by Van Cleve, at which point the earlier decision was reversed by the Illinois Appellate Court. The court held that although Van Cleve had signed a release against all future claims from this incident it was never approved by the Industrial Commission. Under the Workers' Compensation Act an employer cannot enter into a settlement without getting it approved by the commission. Because the Industrial Commission never approved the underinsured motorist release it does not apply to any settlements for Van Cleve's workers' compensation claim.

Maxit then appealed this decision to the Illinois Supreme Court, who affirmed the Appellate Court's ruling. The Supreme Court reached this decision by reviewing the Workers’ Compensation Act, § 23, which reads:

No employee . . . shall have the power to waive any of the provisions of this Act in regard to the amount of compensation which may be payable to such employee . . . except after approval by the Commission and any employer . . . who shall enter into any payment purporting to compromise or settle the compensation rights . . . without first obtaining the approval of the Commission . . . shall be barred from raising the defense of limitation in any proceeding subsequently brought by such employee.

And because it was undisputed that the Industrial Commission had not approved the underinsured motorist release, the Illinois Supreme Court held that the release did not apply to the workers' compensation claim and that Van Cleve was able to recover the additional settlement.

Kreisman Law Offices has been practicing Illinois workers' compensation claims for over 30 years, serving areas in and around Cook County, including Buffalo Grove, Hazel Crest, Maywood, and Tinley Park.

Illinois Truck Accident: Driver Cleared In 'Unavoidable Accident'

2008-11-14T14:18:41Z

Typically Illinois courts reward and protect an injured party. For example, if one party is negligent because they ran into a stopped car at a red light, then the injured driver would normally prevail at trial. But this is not the case when the negligent driver was part of an 'unavoidable accident'.

A recent Illinois trucking accident case ruled in favor of the defendant truck driver on summary judgment (Coole v. Central Area Recycling, 2008 WL 2955543 (4th Dist., July 28)) . The facts of the case were such that the court determined there was an 'unavoidable accident' so the defendant was not at fault.

In Coole, the truck driver was driving 5 mph over the speed limit as he approached an intersection; there was no stop light or stop signs controlling his movement. At the same time the plaintiff was also approaching the same intersection. She had a stop sign, but rolled through it and was struck by the defendant truck driver who was going over the legal speed limit. The truck driver contended that he didn't have time to stop or avoid the broadside collision with Coole's vehicle. Coole died as a result of the collision and her father brought a wrongful death lawsuit against the truck driver.

]]> Details of the occurrence were corroborated by an eyewitness who stated that Coole did in fact roll through the intersection without making a complete stop and that her car was then in the path of the oncoming garbage truck. The truck driver testified that he only had a split second to apply his breaks before the crash and that he tried to avoid the crash by swerving to the left.

The defendant moved for summary judgment on the basis that the plaintiff, Coole, had not shown that if the defendant driver had been going the posted speed limit of 35 mph then he could have stopped his truck in enough time to avoid the collision. Based on all the evidence before it, the court agreed with the defendant and concluded that Coole's evidence was insufficient to prove that Hall's conduct was the cause of the accident.

The court pointed to the Illinois Code of Civil Procedure, 2-1116, which states that a plaintiff is barred from bringing a claim when their negligence contributed more than 50% to the incident in question. While issues of contributory negligence are typically decided by a jury and not a judge, in Coole the court felt that "it does become a question of law when all reasonable minds would agree that the evidence and the reasonable inferences therefrom, viewed in the light most favorable to the non-moving party, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand".

So from this viewpoint, Coole falls under the umbrella of an unavoidable collision case. When the plaintiff pulled out in front of the garbage truck driver there was not sufficient time to avoid the accident "regardless of any breach of duty". Given these findings the court ruled in favor of the defendant in summary judgment and the case was dismissed.

For over 30 years Kreisman Law Offices has been handling both automobile accident and trucking accident personal injury cases in Illinois in such areas as Edison Park, River Forest, Kenilworth, and Wheeling.

Cook County Class Action by Nursing Home Residents Challenges State of Illinois to Provide Supportive Services

2008-11-13T22:09:47Z

Five Cook County, Illinois residents with disabilities recently filed a class action lawsuit who are living in nursing homes after being denied access to community services that would have allowed them to live in an integrated, community setting. Colbert v. Blagojevich (Case No. 2007 C 4737). The plaintiffs aren't alleging there was any nursing home abuse or neglect, but rather that there was a violation of their rights.

All five of the plaintiffs are Cook County, Illinois residents that are eligible for Medicaid. All were living in private nursing homes that received state and federal funding. Plaintiffs believe that they could have been living in their own personal residences if they had been given the appropriate services. The plaintiffs alleged that the state of Illinois had denied them the benefits they would have received from various community services, specifically long-term care services and support in a community setting as opposed to the long-term, nursing home settings they were currently being offered. They further allege that these sorts of services would have given them the opportunity to live somewhere other than an institutionalized setting.

The class action alleged that by failing to provide these services that Illinois officials resulted in violations of the Americans with Disabilities Act, the Rehabilitation Act of 1973, the Social Security Act, and the Nursing Home Reform Act. By filing this class action, plaintiffs are hoping the court will require the defendants to:

(1) inform individuals with disabilities that they may be eligible for community-based services and have the choice of such services, (2) regularly provide assessments to determine eligibility for community-based services, and (3) promptly provide appropriate services and support to qualifying individuals in the community, creating a viable alternative to treatment in institutional settings.

]]> In Illinois, the majority of funds for long-term care, approximately 80%, are dedicated to nursing homes and institutions. Furthermore, Illinois spends almost seven times more tax dollars on nursing home facilities for people with disabilities than it does on providing them with home or community care. Because home and community care programs are underfunded in Illinois there aren't as many programs readily available as there are nursing homes. As a result people with disabilities are typically forced to turn to nursing home facilities to receive proper care because the community programs just don't exist. In Cook County alone almost 20,000 people under the age of 65 and on Medicaid are living in nursing home facilities.

The Colbert case will most likely look to the precedent set by the case of Olmstead v. L.C. [527 U.S. 581 (1999)], where the U.S. Supreme Court ruled that unnecessarily institutionalizing disabled people qualifies as discrimination under the Americans with Disabilities Act. Also, the Social Security Act mandates that states provide individuals with the opportunity to choose alternatives to institutional care, to provide services with reasonable promptness, and insure against the “unnecessary utilization” of institutional settings.

Kreisman Law Offices has been practicing nursing home abuse law in Illinois for over 30 years, serving Chicago,Cook County and its surrounding areas, including Barrington, Franklin Park, Oak Forest, and Tinley Park.

Illinois Automobile Owner Responsible for Authorized Driver's Negligence

2008-11-11T20:45:17Z

In Illinois and most other states when an automobile owner permits another person drive their car then the driver's negligence can be assigned to the vehicle's owner.

For example, consider a Missouri case of Sam and his aunt Sandra [Back v. Winfield-Fire Protection Dist., No. SC 89001 (Mo. banc 2008)]. Sandra owns an automobile, but does not have a driving license, whereas her nephew, Sam, does. So when Sandra needs to go to a meeting she recruits Sam to drive her. On the way to her meeting Sam rear ended a fire truck that was partially parked in his lane with its emergency lights on.

As a result of the crash, his aunt was injured, and consequently sued her nephew and the fire protection district for negligence. Her nephew was dismissed after settling out of court with his aunt for $25,000. The case against the fire department continued on to trial, where the jury awarded $100,000 for her suffering. But because the jury found her to be 50% at fault in the accident, with the district also being 50% at fault, her damages were reduced by half.

The aunt appealed the reduction of her award by arguing that the trial court should not have instructed the jury that she could be held at fault because her nephew was negligent when he failed to keep a proper lookout. She felt that because she was a passenger she did not have a right to control it even though she owned the car.

]]> However, in a fiduciary relationship agency is defined as resulting from an agent's consent to act on a principal's behalf and be under their control. Monetary transactions are not necessarily required in order to establish an agency relationship. The court felt it applied in the case of Sandra and her nephew even though he was simply doing a free favor for his aunt. That neither Sandra or Sam intended to create a legal relationship does not negate that one exists.

Once the agency relationship is established, the principal, in this case Sandra, is responsible for the agent's actions for the period of time that the agent is acting with actual authority. So when a person drives a car while the owner is a passenger, there is the assumption that the driver is the agent of the owner.

At the time of the accident, Sam was driving Sandra to a meeting as he had been expressly authorized and directed to do by Sandra. In spite of Sandra's inability to drive and her lack of a license, she still has the right to control the vehicle for this trip. .

So again, even though Sandra and Sam may not have intended to create a principal/agent relationship, one did in fact exist. By driving Sandra to her meeting, Sam was acting under her wishes. Under the laws of agency, Aunt Sandra as principal did not need to control or direct every movement of her agent, Sam, in order to be liable for his negligence.

Therefore, even though the aunt was blameless for her nephew’s negligence, that is, driving into the rear end of a parked vehicle, she would be limited in her right to recover against another party because of the connection of the agency that she created.

Kreisman Law Offices has been practicing personal injury law in Illinois for over 30 years, serving areas such as Flossmoor, Melrose Park, Tinley Park, and Des Plaines.

Chicago Hospital's Negligence Clarified by Illinois Appellate Court

2008-11-07T14:56:23Z

The Illinois Appellate Court affirmed a Cook County jury's $2.7 million verdict for institutional negligence against Loyola Medical Center in a Chicago transplant error case. Longnecker v. Loyola University Medical Center, 2008 WL 2550686 (1st Dist., June 25).

The issue in Longnecker was whether Loyola University Medical Center was negligent when they transplanted the decedent with a severely hypertrophic replacement heart. The harvested heart was severely diseased and was only considered for transplantation because the harvesting doctors did not examine it. Despite the diseased state of the new heart, the decedent's heart surgeon went ahead with the transplant. The decedent died without ever waking up from the surgery.

Most times we think of medical negligence cases as those caused by doctors or medical personnel individually. But a hospital or institution is held to the same standard of care as a doctor or a physician. So when evaluating a case for institutional negligence one asks what a reasonably careful hospital would and should do under similar circumstances. Illinois Pattern Jury Instructions, Civil, No. 105.03.01 (1995). Jones v. Chicago HMO Limited of Illinois, 191 Ill. 2d 278 (2000).

]]> Various types of evidence can be utilized to establish a hospital's standard of care, including expert testimony, statutes, hospital bylaws, custom and community practice, and accreditation standards. And while expert testimony is typically required in Illinois medical malpractice cases, sometimes institutional negligence can be established without expert testimony. Jones, 191 Ill.2d at 298.

There are two different theories of liability a hospital can face under medical malpractice. A hospital can be held liable for the medical negligence conducted by its agents or employees, or can be liable for its own institutional negligence. And according to the Illinois Appellate Court, a hospital owes its patients a duty to exercise a reasonable degree of care when dealing with an apparent risk.

In Longnecker, the apparent risk was that a significantly diseased donor heart would be deemed acceptable for transplantation. Plaintiff held that Loyola had a duty to avoid this risk by ensuring that all members of the transplant team were aware of their role in evaluating the donor heart prior to transplantation. But the defendant doctor argued that he was not aware that he was responsible for evaluating the heart before harvesting and approving it. And while he was found guilty of negligence, plaintiff argued that his failings were partly the result of Loyola's failure, too.

Loyola had a duty to inform the harvesting doctor that part of his role on the transplant team was to evaluate the heart for transplantation after it was harvested. Instead the harvesting doctor only evaluated the heart while it was in the donor and missed the severe hypertrophy. Yet if he had simply observed the heart after it was harvested the hypertrophy would have been easily identified.

The other members of the transplant team had certain expectations of the harvesting doctor's role, which he did not fulfill. The heart surgeon who placed the transplant in Longnecker acted on the assumption that the harvesting physician had performed his role of evaluating the harvested heart. Based on this assumption, the transplant surgeon removed Longnecker's heart in preparation for the new heart. If the transplanted heart had been deemed severely diseased and unacceptable for transplant by the harvesting physician, then Longnecker's heart would never have been removed and the surgery wouldn't have taken place. So Loyola was negligent by not requiring that the harvesting doctor be aware of his role on the transplant team.

This case establishes an additional obligation on a transplantation team that may have been absent before this decision was passed down. Longnecker clarifies that institutional negligence occurs if a professional link in the chain of command deviates from the standard of care. Here the surgeon accepting the harvested heart had a duty to examine it prior to its delivery to the heart surgeon for transplantation.

Kreisman Law Offices has been handling Cook County medical malpractice cases for over 30 years, serving areas such as Buffalo Grove, Glenview, Park Forest, and Tinley Park.

Chicago Personal Injury Attorney Bob Kreisman Serves Voter Protection Program on Election Day

2008-11-05T15:07:47Z

I firmly believe in the importance of voter rights and the importance of promoting a free, fair and open voting experience for all eligible voters. For the 2008 Presidential Election I joined up with lawyers from across the country to protect the voting rights of citizens.

Even though I reside in Illinois I decided to serve in Dayton, Ohio on Election Day. Given the voter difficulties in recent presidential elections, particularly in the states of Florida and Ohio, I felt that I would be most useful in Ohio. I was assigned to the Dixon Wellness Worship Center, the polling place for Dayton's Precinct 14-I. My job was to work outside of the polling place and answer any voting questions.

On Election Day I arrived an hour before the polls opened. Overall, my experience was very positive and had very few conflicts. The polling officials were seasoned and knowledgeable in dealing with the large turnout and ensured that the voting was orderly and well run. Several people showed up to the polling place unsure whether they were in the correct place. The polling officials and I were able to determine if they were in fact eligible to vote in this precinct, and if not, then where they should be voting.

At the end of the day I headed home feeling that I had contributed to our election process. As a lawyer I am in the unique position of making sure that the rights of others are not violated and can help those who can not stand up for themselves. While I didn't witness any gross voter right violations in my precinct, I believe that it is important to take preventive measures to ensure that this remains the case nationwide.

]]> In order to prepare for my duties I attended an Ohio voting law training session on November 3, 2008, in Dayton. At the orientation I learned how to best serve the public in this historic election. My main focus on November 4th would be: (1) long lines; (2) identification; and (3) precincts.

As in most states, Ohio requires a state issued driver’s license, or a state photo ID to enter the polling place. These two forms are the only IDs necessary. But if you do not have one of these forms of identification Ohio allows alternative forms of identification. For example, a voter may present a utility bill, such as a cell phone bills or utility bills issued by a college or university; a bank statement; a government check; or payroll check. These are all acceptable substitutes for the identification requirement that allows an eligible voter to cast his or her vote.

I also learned additional facts about Ohio voting and how it compares to that of Illinois and other states. Like many of the states around the country, Ohio’s ballots list other propositions and local, state and federal officials running for office. The Ohio polls are open from 6:30 a.m. through 7:30 p.m. Ohio is similar to the majority of U.S. states in that if a voter is in line when the poll closes, 7:30 p.m. in Ohio, that voter can cast his or her vote regardless of how long that line might be. Also of note was the fact that in Ohio it is permissible for a handicap individual to be driven up to the polling place driveway and to request a paper ballot to be brought to the individual’s vehicle by a polling official.

Bob Kreisman of Kreisman Law Offices has been practicing personal injury law in Chicago and Illinois for over 30 years in areas such as Glencoe, Tinley Park, Skokie and Oak Park.

Illinois Attacks Distributor of Defective Baby Cribs

2008-11-03T21:24:56Z

Last week Illinois Attorney General Lisa Madigan filed a lawsuit against SFCA, Inc., a distributor of baby cribs, bassinets and playpens, claiming that SFCA continues to sell and distribute the subject bassinet, even after voluntarily recalling 1,000,000 of the products in 2007.

The bassinet allegedly has design flaws. Federal regulators warned consumers that the bassinet caused the death of two infants. The bassinets are equipped with sides that drop down for easy access to the baby. Unfortunately the design creates a gap that the baby can slide through. The two infants that died did slide through and hung to death.

SFCA is not taking responsibility regarding the product liability claim for the defective bassinet, which is manufactured and marketed through Simplicity, Inc., a subsidiary company of SFCA, Inc. SFCA maintains that it wasn’t responsible for the items produced by Simplicity because it only just bought the Simplicity brand in August 2008. Yet closer examination reveals that SFCA bought the Simplicity brand bassinets, but then shipped them from its own facility using the same design of the products that killed the 2 infants.

]]> In conjunction with her lawsuit against SFCA, Inc., the Illinois Attorney General criticized the U.S. Consumer Product Safety Commission for allowing this manufacturer to simply send repair kits to its customers in an attempt to correct the defective item. Madigan called for a refund-only recall policy saying that the Product Safety Commission’s current policy is ineffectual.

Madigan's office is not only going after the manufacturer responsible for defective bassinets, but is also doing its part to keep the public informed. The Illinois Attorney General’s office is distributing Rest Assured, a guide detailing cribs, bassinets and playpens recalled over the last 13 months to citizens of Illinois. The booklet is available at the Illinois Attorney General offices in Chicago or in Springfield, through its website , or by calling the product recall hotline 888-414-7678.

Kreisman Law Offices has been practicing Illinois product defect cases for over 30 years, serving Cook County and the surrounding areas including Brookfield, Evanston, Oak Forest, and La Grange.

Eligible Voters Purged From Swing State Rolls

2008-10-29T02:15:15Z

In Illinois, we have the option of early voting. I personally had a very smooth voting experience when I voted last week just a block from our Chicago office. I didn't have to wait in a never-ending line of voters and the polling officials were both extremely helpful and well-informed. There were no hitches in casting my vote.

However, not all Americans have such an easy voting experience. For example, in Duval County, Florida, many early voters worry about whether their votes will really be counted. In the 2000 election, approximately 26,000 ballots were discarded in this predominantly Democratic area around Jacksonville. In that 2000 election, voting machine irregularities accounted for thousands of votes being discarded in predominantly black populated areas.

Then there are other states where voters have been stricken by the thousands from voting because of state rolls in supposed violation of federal law. Yet further review of the records of these stricken voters shows that they may be mistakenly denied from voting. According to the states in question these mass removals are their attempts to adhere to the Help America Vote Act of 2002 by removing the names of voters who should no longer be listed.

The majority of the questions regarding improper striking of voters centers around the key swing states of Michigan, Ohio, Indiana, Nevada and Colorado. These states have been accused of an improper usage of voters' Social Security information to verify their application status. They could be in further violation of federal law by removing voters from their rolls within the 90 days preceding the federal election. A voter may only be removed during that time frame if they have died, been declared unfit to vote, or informed authorities that they moved out of the state.

]]> Many new voters have been added to states' rolls in the last few months as part of an aggressive campaign to register new voters. Yet according to the New York Times, some states have removed at least two legitimate voters for every newly registered voter that has been added to their roll over the last two months. The result is that come November 4th, many registered voters may show up to vote only to be sent away or challenged by political party officials and workers.

Indiana has been criticized for their strict photo ID requirements, which were recently upheld by the Supreme Court (Crawford v. Marion County Election Board, No. 07-21). The dispute involves a 2005 Indiana state law passed to deter voter fraud despite little history of fraud in Indiana. The law requires that voters have an ID with their proper name, photo, and expiration date that is issued by Indiana or the U.S. government. Critics of the law maintain that this requirement is unconstitutional and deters elderly, poor, and minority voters from coming out to the polls.

On college campuses, where enthusiasm for the upcoming election is high, there is evidence that voter suppression is in the works. On one college campus a flyer was being distributed falsely stating that all attempts to vote by those with outstanding parking violations would be turned away. At another university a deceptive notice was circulated on campus declaring the election for Democrats would be held on November 5th, not November 4th.

In 2000 it was the voting machines that was labeled as the problem in the presidential election, whereas provisional ballots were the big issue of 2004, especially as it applied in the Ohio vote.

What's most important is that all eligible voters cast their vote. Vote and count all of the votes. That's the way democracy works.

If you or someone you know has experienced voting problems in the upcoming election, visit the U.S. Department of Justice, Civil Rights Division's website to find out how to report voting right violations.

For over 30 years Kreisman Law Offices has been practicing personal injury law in Chicago, Cook County and its serving areas including Bartlett, Forest Park, Northbrook, and Skokie.

Are All FDA Approved Devices Safe?

2008-10-27T17:31:48Z

The U.S. Food and Drug Association is responsible for ensuring that new medical devices are safe enough to be put on the market. As a federal agency, the FDA controls regulation nationwide and within Illinois and Chicago. But what most consumers don't know is that the process for approving these medical devices doesn't always ensure that they are effective alternatives to already established medical treatments.

The majority of newly approved medical devices undergo a 501(k) review. Under this review process the manufacturer needs to prove that their device is substantially similar to another device that has already been approved for the market. Once they have done that, the manufacturer just needs to show that the device does what it claims. Yet in the field of medicine, just performing a function is different than guaranteeing the supposed outcome.

For example, let's suppose that Elaine, an Illinois woman, was trying to decide between which type of radiation she should get to treat her breast cancer. Her options range from conventional radiation, which would irradiate her whole breast five times per week for a total of five weeks, to a newly-FDA approved radiation therapy method called MammoSite brachytherapy. This new method only requires radiation for five days and uses radioactive 'seeds' to treat the cancer.

All things being equal, the MammoSite option is much more appealing because it gets the job done in a fraction of the time and is Elaine's first choice. Her doctor recommends it and she decides to go with the newer treatment option. However, what Elaine doesn't know is that even though MammoSite is FDA-approved, the long-term effectiveness of the treatment is not yet proven. While early studies have come back with promising results, it will be years before there is enough data to determine whether it is as effective as conventional radiation. Yet many of the women undergoing this form of treatment are unaware that it is still in an experimental state and are trusting the FDA-approval and their doctors' recommendation.

]]> And while MammoSite could very well live up to its hype and prove to be a wonderful innovation in breast cancer medical devices, at this point it is to early tell. It could also join the ranks of several other FDA-approved devices that eventually had to be pulled from the market.

Some argue that the FDA review process for medical devices needs to be revamped and made more rigorous. For example, the process the FDA uses to review radically new technologies is very strict. But where's the middle ground? Why is one review so strict and the other so lax? And what can we as consumers and medical patients do to ensure that the medical devices we're using are safe and not likely to end up as a medical device liability claim?

Current efforts to determine what needs be done to change the FDA's current review process are underway in Washington, D.C. A non-partisan group, the Government Accountability Office, is completing a study of how effective the current review process is. A report is expected to be released in the coming months.

Chicago's Kreisman Law Offices has been practicing medical device liability in Cook County and Illinois for over 30 years, in such areas as Bridgeview, Forest Park, Niles, and Worth.

Chicago Injury Attorney Bob Kreisman Co-Chairs Union League Club of Chicago Congressional Debate

2008-10-21T23:02:33Z

On October 18, 2008, Congressman Mark Kirk and challenger Dan Seals debated before area voters at Deerfield High School. Both candidates are running for the 10th Congressional District, which encompasses Chicago suburbs from Wilmette and north through Waukegan, Illinois. There were more than 800 people in attendance and loads of media reporting and videotaping the debate for later rebroadcast.

Representative Kirk, the Republican incumbent, said he was pro-choice, pro-environment and pro-education. He said that the Washington Post voted him the eighth most independent member of Congress. Kirk said that he opposed President Bush 59% of the time according to the Congressional Quarterly.

Dan Seals, Democrat, is making his second attempt to unseat his opponent. Seals repeatedly linked Kirk with President George W. Bush, citing that Kirk voted with the Bush Administration 90% of the time. Seals attacked Kirk for voting against the equal pay for woman in the workplace bill, also known as the Paycheck Fairness Act.

The heated debaters traded barbs regarding woman’s rights, the Bush administration, and their positions on other social issues. Even though the candidates had a few moments of agreement, the debate was acrimonious, fueled by the crowd eager to wildly cheer or boo either of the candidates.

]]> Part of the exchange was rather sharp. At two different times during the debate, Seals criticized his opponent, Mr. Kirk, by indicating that he had never worked outside of Washington. In response, Kirk said, “That’s right. When I was working in the U.S. Congress, I was serving in the United States Navy.”

Seals on the Iraq war said that he would bring the troops home in a responsible, safe manner, whereas his opponent, Mr. Kirk, has voted more than a dozen times to keep the troops in Iraq. Kirk, however, indicated that as many as eight military bases have been closed in Iraq in recent times, apparently as a marker that the Iraq involvement is winding down anyway.

On the environment, Seals said that the cost of the Iraq war is $195 million per day. He said that with that money, “We could have converted 47,000 cars from gas to electric, we could have purchased the highest quality body armor for 66,000 troops, we could have rebuilt 2,200 homes in New Orleans, and we could have covered health care for 27,000 families.”

Representative Kirk tallied his record on Veteran Affairs mentioning his role in the creation of the Lovell Federal Health Care Center, when the North Chicago Veterans’ Hospital was in danger of closing.

The debate was co-sponsored with the League of Woman Voters of the 10th District and the Union League of Chicago. Many of the partisans were supporting their favorite candidate with placards and signs which lined the driveway leading into the school parking lot. According to recent polling the race in this congressional district is close and contested, and has drawn local enthusiasm from both parties and has even received widespread national attention.

For over 30 years Robert Kreisman has been practicing law in Chicago and its surrounding areas, including Barrington, Glenview, Oak Lawn and Winnetka.

Medical Records Falsified In Birth Injury Case

2008-10-20T18:04:50Z

In the many years that I have practiced medical malpractice in Cook County and Illinois, my clients have warned me that the pertinant medical records in their case had been falsified, changed, deleted or simply removed from the hospital and medical charts.

In Illinois, the “intentional destruction, mutilation, alteration or concealment of evidence” is called spoliation of evidence. If medical records were to be destroyed or altered, the Illinois Supreme Court can impose a sanction upon any party who unreasonably refuses to comply with any discovery rule or order entered pursuant to the Illinois Supreme Court Rules. The court has the power to stay the proceedings pending compliance; default the case, barring further pleading related to the issue; dismiss a claim or counterclaim related to that issue; exclude testimony related to the issue; to strike any relevant portion of the offending party’s pleadings and enter judgment on the issue; and to enter a default judgment or dismissal against the offending party.

In 1995, the Illinois Supreme Court recognized a separate cause of action for negligent spoliation of evidence. So if your medical records in a medical malpractice case were altered by the medical staff, then you could file a separate lawsuit regarding the altered evidence. And because adequate remedies for the destruction of evidence already exists under Illinois Supreme Court Rule 219, a new tort wasn't created. Instead, the Supreme Court held that an action for negligent spoliation could be brought under existing negligence law.

]]> To follow the Illinois law, a Massachusetts’s Appellate Court considered whether a medical malpractice statute of repose would apply to bar an action for intentional falsification of medical records in Chace v. Curran 881 N.E.2d 792 (Mass.App. 2008). In Chace, plaintiff's son, Andrew, suffered birth injury malpractice in September, 1995. Prior to his delivery, Andrew exhibited signs of a prolapsed cord so the defendant, Dr. Shannon, ordered an emergency Cesarean. But upon delivery, Andrew required resuscitation due to the lack of oxygen.

In March, 2001, plaintiffs filed a complaint against Dr. Shannon alleging negligence during the delivery that resulted in Andrew’s permanent severe mental and physical disabilities. During the pretrial discovery of the medical malpractice claim, plaintiffs discovered that the records of Dr. Shannon and another obstetrician were inaccurate and incomplete because they did not include that Andrew was without oxygen for several minutes during resuscitation. However, the medical malpractice claim was dismissed because the statute of limitations had run.

So in June 2004, plaintiffs filed an additional action alleging negligence, fraudulent concealment and intentional misrepresentation and fraud by the doctors. Specifically, plaintiffs alleged that the doctors made false and misleading statements in Andrew’s patient care records while knowing that a potential medical malpractice action could be brought for their substandard care. They were accused of intentionally concealing their lack of due care until after the statute of limitations had run.

The defendant doctors tried to dismiss the negligence claim by arguing that the statute of repose that had applied to the medical negligence claim also applied here. But the court disagreed. The court found that the cause of action for fraud (concealment and intentional misrepresentation of the medical records) was different and that the medical malpractice statutes of repose would not apply because an entirely different set of facts must be proved before they would address the issue of whether the medical care was negligent.

In their motion for dismissal the defendants had claimed that plaintiff's allegations amounted to nothing more than allegations of inaccurate record keeping within the context of negligent medical treatment. Yet the court felt that "[a]ccurate recordkeeping and retrieval is necessarily a part of the duty undertaken when a physician is affiliated with a medical group . . . in the course of treating a patient.” Here the defendants misrepresented and failed to disclose material facts for the sole purpose of hiding their errors. Plaintiffs in such circumstances may proceed on alternative theories of liabilities and these alternatives remain consistent with a purpose of the statutes of repose.

It has often been said that the cover-up is worse than the crime. When a doctor alters his or her medical records it violates the trust implicit in their relationship with their patients, and is against the law. When my clients come to me with concerns that their physician might have altered their medical records to cover up potential negligence it is a sad reflection on the current state of patient-doctor relations. Whereas your doctor used to be a trusted professional, now he or she is often regarded with suspicion. Is the patient-doctor relationship so strained these days?

Robert D. Kreisman has been practicing medical malpractice law in Cook County for over 30 years in areas such as Chicago, Hoffman Estates, Oak Park and Tinley Park.

United States and Illinois Fall Behind Other Countries in Infant Death Rates: What Does This Say About Quality of Health Care?

2008-10-17T19:33:24Z

Even though a recent study showed infant death rate declining by 2% in the United States and Illinois declined recently, the percentage of decline is much less than in prior years. In fact, this is the smallest decrease since we first began recording the infant death rate in 1907. This trend is compounded by the fact that Illinois and the U.S. have more infant deaths than most other industrialized countries, a trend that has worsened with each passing year.

Each year more than 28,000 infants under one year-old die in the United States. Two-thirds of these infant deaths are preterm babies. In 2006, 6.71 infants died in the United States for every 1,000 live births. In 2006, Illinois was well above the national average with 7.2 infants deaths for every 1,000 births. Illinois's death rate seems even more startling when compared with that of other countries. In 2004, twenty-two countries had infant mortality rates below 5.0 infant deaths for 1,000 live births, and many Scandinavian and Asian countries posting rates below 3.5.

The infant death rate is important because it is used as an international indicator of a nation's health and quality of medical care. So even though individuals in the United States spend a much larger portion of its income on health care than those in other industrialized nations, we continue to fall short of the international standard. In 1960 the United States had the 12th lowest rates of infant mortality in the world. But by 2004 we had dropped to 29th lowest, the same rank as Slovakia and Poland.

If we are spending so much more than these other countries, why are we falling further and further behind the world-wide standard? Some look towards recent trends in preterm births, Cesarean deliveries, and other types of birth injury as the source of this problem. Others feel the problem is due to cultural issues, like drug use and obesity. And yet another group feels that the decentralization of our health care system is to blame.

]]> To decrease the amount of infant deaths, doctors recommend that labor should not be induced prior to 39 weeks gestation unless there is an urgent obstetrical or medical need. The reason for this is that there are quite substantial risks to a child that undergoes early induction of labor. If this is the cause of the United State's substantial lag behind the rest of the world in infant death rates then the quality of our infant care needs to be addressed.

More than 28,000 infants under the age of one die each year in the United States. Two-thirds of the deaths of those infants are preterm babies.

But what if the lag is due to cultural issues, like obesity, drug usage, or gun violence? Then health care reform will do nothing to affect our worldwide ranking and instead we need to look at our society and values. Or if the United State's emphasis on private health care is the cause, then we need to look at the structure of our health care system for solutions.

Yet no matter where you point the blame you can't ignore that the United States spends over twice what most industrialized countries spend on health care, but continues to fall behind in infant mortality rates. Somewhere changes need to be made.

Kreisman Law Offices practices medical malpractice law and personal injury law in Illinois and Cook County, including the cities of Berwyn, Forest Park, Morton Grove and Wheeling.

Illinois Erb's Palsy Medical Malpractice Case Turns on Engineering Expert's Testimony

2008-10-15T18:59:02Z

Erb’s palsy is a injury to a child's brachial plexus nerves caused by an abnormal or difficult child birth. The brachial plexus is a cluster of nerves in your neck that control all arm movements. Erb’s palsy can be caused by excessive pulling on the shoulders of the infant by the medical staff during delivery. The resulting paralysis affecting the movement of the child's shoulders, arms or hands can be partial or complete. And while sometimes the paralysis can resolve on its own, it could also necessitate physical therapy or surgery.

In a recent Illinois case, baby Tanisha Ruffin’s shoulder became impacted on her mother’s pelvic bone during delivery, which put stress on Tanisha's shoulders. In order to free up her shoulders from her mother’s pelvic bone, the defendant obstetrician testified that he used a vacuum extractor cup and a gentle traction on the baby’s head to manipulate her out. Nonetheless, Tanisha was born with Erb’s palsy because of the damage to the brachial plexus nerve network in her shoulder area.

The big issue at trial was whether the Illinois birth injury was caused by excessive traction with the extractor cup, or by the natural propulsive forces of labor.

]]> What made this case even more unusual was that the defendants used an engineer as their expert, and not a doctor. Typically in a medical malpractice case in Illinois, the testifying expert is a doctor who practices the same branch of medicine as the defendant. Yet Dr. Grimm, an engineering professor at Wayne State University,asserted that she was qualified to testify in this case because of her experience calculating forces.

As part of her engineering research, Dr. Grimm had made commercially available software package called Mathematical Dynamic Models (MADYMO) that is often used to calculate the forces that pummel crash test dummies. After a hearing, the trial judge concluded that Grimm’s methodology satisfied the requirements of Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923) regarding expert qualifications, and permitted her to provide an opinion on what caused Tanisha's brachial plexus nerve injury.

Dr. Grimm testified that defendant's use of a vacuum extractor cup and traction during Tanisha's delivery would not have caused her Erb's palsy. The jury found in favor of the defendant doctors.

Tanisha’s mother asked for a new trial and one of her arguments was that Grimm was not qualified to give expert testimony on the cause of Tanisha’s injuries. It was argued that Grimm was not a physician and her testimony did not satisfy the Frye test. If the Appellate Court had agreed with Tanisha's mother then there would be a new trial, that didn't include Dr. Grimm's testimony.

In the appeal, the plaintiff contended that Dr. Grimm should have been barred from testifying as to causation because the question before the jury required an assessment of the causation evidence to a reasonable degree of medical certainty and Dr. Grimm is not a medical doctor.

The appellate court stated that Dr. Grimm’s articles on the forces of labor and shoulder dystocia have been published in peer-reviewed journals since 2000. There was also the added weight that these articles were published in a prestigious medical journal, The American Journal of Obstetrics and Gynecology.

The court concluded that “Dr. Grimm’s model had been generally accepted in both the engineering and obstetric communities as amply supported by the evidence at the Frye hearing,” thereby denying plaintiff's claim for a new trial. Ruffin Ex Rel Sanders v. Boler, 2008 WL 2550672 (1st Dist. 225, 2008).

Kreisman Law Offices in Chicago has been practicing medical malpractice and birth injury law in Cook County and Illinois for over 30 years, serving communities such as Brookfield, Forest Park, Morton Grove and Wheeling.

Are MRI Scans To Be Relied On By Chicago and Illinois Doctors?

2008-10-14T14:02:09Z

When you go for an MRI at a local Chicago hospital you expect that the technician interpreting it will give a clear and correct diagnosis. However, oftentimes the MRI and other scans that are the basis for the medical treatment and care prescribed by our doctors are simply not reliable because of radiology errors.

In one of our cases, a treating radiologist viewing an MRI scan noted certain changes in her lumbar spine. But later, this same patient was re-examined by another orthopedic surgeon who ordered new scans. And this time around the radiology report found none of those subtle changes. The meaning of all of that is that the treatment plan laid out by our client's first treating physician relied on scans that were flawed. The images seen were different on the second set of MRI scans.

Did the radiologist make a mistake? Not really, according the second doctor. But the scans themselves can be different. What's sobering to know is that some MRI scans and other scans, X-Ray and CT can appear different because of the quality of the images. Even academic radiologists say that different scans of the same part of the body can reveal very different findings.

]]> There are other problems associated with this. Some radiologists in smaller community hospitals are assigned to read almost every kind of scans, from chest x-rays to MRIs of the foot. Whereas a radiologist at a large teaching hospital may be a specialist who only reads one sort of scan, such as head CTs. By focusing on only one type of image they gain more experienced at recognizing subtle changes and developments for that specific scan.

Another issue is the fact that doctors relying on the radiologist's report of what was on the scan without knowing anything about the quality of the scan that was analyzed. Because the technology rapidly changes, a machine from a few years ago could generate a much lower quality of scan than a brand new machine. For example, some models of MRI machines produce lower quality scans than others and this can drastically affect the ability to use it to make a correct diagnosis.

Also, if the scan being reviewed is not the original image, but a copy, then it can be hazier and harder to read. For example, in one of our Illinois medical malpractice cases, the radiologist reviewing an X-Ray noted that the scans had been copied so that the quality was not as good as the original. Now we regularly insist that scans be digitally produced so that the quality is very much like the original scans.

Also, there is the human factor- a radiology tech with more training and experience could be better at setting up and taking the scan. The method used to physically take the scan also influences its quality.

The bottom line is that these scans are far from full-proof. So even if the scans used to diagnose you showed no problem, if your alarming symptoms persist then get a second set of scans and a second opinion.

Kreisman Law Offices has been practicing medical malpractice in Cook County for over 30 years, serving cities such as Park Ridge, Buffalo Grove, Oak Park, and Winnetka.