Chicago Personal Injury Lawyer Blog

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.

Continue reading "Medical Records Falsified In Birth Injury Case" »

Posted by Robert Kreisman | Permalink | Email This Post

Posted In: Birth Injury , Illinois Civil Procedure , Medical Malpractice

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There is a lot of information on the Internet that allows us to research everything from restaurants to shoemakers. And Illinois law is no exception. A number of free websites allow both lawyers and Illinois citizens to readily access a wide variety of legal information.

The Illinois Supreme Court and Illinois Appellate Courts can be found at a site located at http://www.state.il.us/court. The website contains past opinions and rulings of the Illinois Supreme Court, along with links to legal research and guides for lawyers. But there are also useful tools for citizens wanting to find out more about nuances of the law. Some of these include a Juror Handbook, Illinois Child Support Information, and Becoming an Adult: Legal Rights & Responsibilities at Age 18.

The Illinois Supreme Court website also has a link to any of the Illinois Circuit Courts. Currently 15 of Illinois’ 23 Circuit Courts have websites, including Cook County, Lake County, Kane County, DuPage County, McHenry County and Kankakee County.

Although the individual county circuit courts vary, the websites generally contain contact information, county courthouse addresses, lists of the circuit and associate judges, and local rules and forms. The Cook County website also has links to traffic court information, or information on how to set up courthouse tours.

But if you're in Cook County and need to look up information about a specific case, then you need the website for the Clerk of the Circuit Court of Cook County. Through this site you can search for up-to-date information on your case on the docket sheet, which is essentially a list of all activity for an individual case. In addition, there are numerous forms and answers to many common legal questions, or FAQs.

In short, there is a wide array of useful and valuable information available to the public about our court systems so that you can be your own advocate.

Continue reading "Illinois Courts: Using The Internet To Access Services and Information" »

Posted by Robert Kreisman | Permalink | Email This Post

Posted In: Illinois Civil Procedure

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Chicago's 7th U.S. Court of Appeals reversed a federal district judge's ruling that barred the Illinois product liability claim of Lenore Aebischer. In 1997 at age 44, Lenore underwent a hip replacement. But the prosthetic hip manufactured by defendant Stryker Corp. allegedly failed due to structural defects, and Lenore required a second replacement surgery.

Stryker Corp. moved to dismiss the complaint filed by Lenore because the 2-year statute of limitations had run when the case was filed in Chicago in 2005. In Illinois, typically the statute of limitations begins running from the date that the claimant should have known that there was a problem with the defective medical device. The Chicago district court found that in 2002 Lenore was aware that her hip problems were caused by a manufacturer's defect.

In 2001, Lenore saw her orthopedic surgeon for left hip pain and was told that her hip replacement might last 15-20 years. In 2002, the same doctor determined that her pain was caused by osteolysis and from particles of plastic that had broken loose from the prosthetic hip. In 2003, the surgeon performed a second hip replacement surgery to replace the failed original prosthesis. After the surgery, the surgeon told Lenore that the osteolysis was worse than he had originally thought and that the original hip device had "advanced or catastrophic failure".

Because of her surgeon's discoveries during her procedure in January, 2002, the Illinois federal district court said that the plaintiff was on "inquiry notice" that her injury might have been wrongfully caused based on the surgeon's explanation of the osteolysis and that particles of plastic from the prosthesis had gotten between that device and her hip bone.

Continue reading "Illinois Hip Replacement Product Defect Suit Survives After Statute of Limitations Runs: Re-Evaluation of When Discovered Injury" »

Posted by Robert Kreisman | Permalink | Email This Post

Posted In: Illinois Civil Procedure , Medical Device Liability , Product Liability

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Part of being a Chicago trial lawyer is presenting your client's side of a story to a judge and jury. One way to do this is by submitting evidence during litigation, such as testimony, diagrams, and pictures. But what happens if a judge decides that you can't show some of your evidence? How do you make sure that your the jury understands your client's story?

Photographs can be a very persuasive way to drive a point home to the jury at trial. For example, if you want to demonstrate the horrific nature of a car crash then nothing gets this across better than photographs of the totalled car. Or if you're arguing that doctors at a local Chicago hospital dropped the ball and didn't prevent or treat your client's bed sores, then pictures of the exact size and nature of those sores will underscore how impossible they were to miss.

However, the argument against allowing such pictures is that they could sway the jury to the point that they ignore the facts before them and focus only on the visual story presented. It is up to the judge to ensure that both the plaintiff and defendant tell their story in a way that doesn't unduly prejudice the jury against the other side, see Dicosola v. Bowman (342 Ill App 3d 530). To do so a judge will typically only allow evidence that is relevant to the case and try to keep out unnecessary theatrics.

But aren't scene photographs and images of a car after a crash relevant to a case? Don't they allow the jury to get a better sense of what actually happened and place themselves in the scene? So why would such photos ever be barred from evidence for not being relevant?

Continue reading "Chicago Courts Limit Admissibility of Pictures at Trial: How Does This Effect Your Case?" »

Posted by Robert Kreisman | Permalink | Email This Post

Posted In: Illinois Civil Procedure

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Defendant 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.

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

Posted by Robert Kreisman | Permalink | Email This Post

Posted In: Illinois Civil Procedure , Product Defects , Product Liability

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In a sharply divided decision, 4-3, the Illinois Supreme Court held that plaintiffs who are allowed to refile a case after a voluntary nonsuit, would still be allowed 90 days after the refiling to present the required Section 2-622 affidavit of a physician or other medical provider to certify that a medical negligence complaint has merit.

In Illinois it has been the law that as a prerequisite to filing any medical malpractice case, the plaintiff's attorney must include with the complaint a certificate of merit asserting that the case has merit from a physician or medical provider expert in the area of medicine being complained about. Sometimes lawyers find that although they believe the facts support a case for medical malpractice, no medical certificate was available in advance of the running of the statute of limitations.

In Illinois the statute of limitations is two years for most tort/negligence cases with some exceptions. What the statute of limitations does is act as a complete bar from bringing the action at all, i.e. the court would dismiss the case unless it is filed within the time limit.

In the underlying case decided by the Supreme Court, the plaintiff filed suit without the certificate of merit. Facing dismissal of the case by a McLean County judge, the plaintiff voluntarily dismissed her case, refiled within one year and then asked for another 90 days to obtain the required certificate of merit. The circuit court dismissed plaintiff's case and an appeal ensued to the 4th Appellate District. That appellate court reversed the lower court decision and the case was further appealed to the Illinois Supreme Court.

The Illinois Supreme Court likely took up this issue up is because some appellate court districts in Illinois had differing views on this 90 day rule. While all courts allowed attorneys to file a medical malpractice case without the certificate of merit with the proviso that one must be submitted within 90 days thereafter. And in the absence of the certificate being filed within the time limits, the complaint would be dismissed.

However, some courts also allowed plaintiffs a one time grant of a nonsuit, which is a non-prejudicial dismissal with a right to reinstate the case within one year. What this means is that some judges would allow plaintiff to refile their case after missing the 90-day deadline for filing a certificate of merit, whereas another court might not allow this. There was no consistency between the various courts of Illinois.

Much of the confusion came as a result of the tort reform statute in 1995 that said a certificate of merit needed to be filed within 90 days of the case, which was held to be unconstitutional by our supreme court in 1997. The Illinois legislature amended the statute two months after the supreme court decision. However, this new statute neglected to address the 90-day extension in its then new provisions so that it was at the discretion of individual courts.

In this case the Supreme Court affirmed the appellate court decision, thus clarifying the law on the subject. So as it stands now, a plaintiff who has not submitted the certificate of merit within the initial deadline may dismiss his or her case, refile within one year and have an additional 90 days thereafter to file the professional's certificate of merit. This standard will be applied to all courts throughout Illinois.

Continue reading "Illinois Supreme Court Interprets Medical Malpractice Law" »

Posted by Robert Kreisman | Permalink | Email This Post

Posted In: Illinois Civil Procedure , Medical Malpractice

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On January 25, 2008, the Illinois Supreme Court ruled in Hudson v. City of Chicago that the re-filing of a voluntarily dismissed claim may be barred under res judicata when there is a previous involuntary dismissal of a different claim in the case.

Res judicata refers to an issue before the court that has already been decided on by another court for the same parties. In Hudson, res judicata applied because at least one claim had been involuntary dismissed in the prior case. The Court held that res judicata bars

not only every matter that was actually determined in the first suit, but also every matter that might have been raised and determined in that suit.

Oftentimes an attorney voluntary dismisses a claim when one of its other claims were dismissed in order to re-work the remaining claims and then re-file. However, attorneys now have to be careful not to fall under the banner of res judicata and thereby miss out on refiling their claims. And res judicata can even bar refiling when cases are dismissed "without prejudice", i.e. allowing for the refiling of suit against the defendant if the defendant doesn't follow through with the terms of settlement.

Continue reading "Hudson v. City of Chicago: Illinois Supreme Court Redefines Res Judicata" »

Posted by Robert Kreisman | Permalink | Email This Post

Posted In: Illinois Civil Procedure

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