October 28, 2008

Eligible Voters Purged From Swing State Rolls

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.

Vote%201.jpgHowever, 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.

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August 25, 2008

Illinois Appellate Court Holds School District Accountable For Bus Driver's Misconduct

When Misty Green was in kindergarten she was sexually molested by her Illinois school bus driver. The bus driver has since been convicted of child abuse and sent to prison. But now an adult Green seeks compensation from her Illinois school district based on its liability in the abuse (Green v. Carlinville Community Unit School Dist. No. 1).

School%20Bus%201.jpgAn Illinois trial court granted the school district's motion for summary judgment stating that all the counts against the district were reliant on the district's classification as a "common carrier," but that the district was not a common carrier. An Illinois Appellate Court agreed that the district was not a common carrier, but that it was still liable for the bus driver's misconduct.

Under Illinois law a common carrier is a carrier who transports and serves all the public alike and does not have the ability to refuse service to anyone. Whereas a private carrier has no obligation to indiscriminately carry all of the public and instead transports only by special agreement. Both the trial and appellate court found that the school district was not a common carrier because it did not transport all of the public. Rather the district transported only students and only for student-related activities.

But even though the Illinois appellate court agreed that the school district could not be classified as a common carrier it disagreed with the trial's court ruling- namely, that the district was not liable for the bus driver's misconduct. Instead the appellate court found that the school district could be held liable.

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August 22, 2008

Illinois Court Decides Insurance Company Not Responsible for Covering Workers' Compensation Claim

Illinois Appellate Court ruled that Illinois Insurance Guaranty Fund (IIGF) is responsible for paying workers' compensation benefits to a worker who was injured on the job (Virginia Surety Co. v. Adjustable Forms, Inc.). This ruling came in spite of IIGF's claims that the Chicago worker was also covered under Virginia Surety Co.'s policy and therefore it should be paying the Illinois workers' compensation benefits.

Hard%20Hat%201.jpgMichael Hadrys, an Adjustable Forms employee, was injured while working on a construction project in Illinois called the River East Project. And as is typical in the construction industry, his insurance was an owner controlled insurance program (OCIP) meaning that it was covered through the owner of the job and not his direct employer. The OCIP was being covered by Reliance Insurance Co., who have since folded, and that's when things get complicated.

Typically, when an insurance company folds all its claims are handled by the Illinois Insurance Guaranty Fund (IIGF), provided that there is no other insurance company involved to take over the claim. However, in this case because Hadrys's employer, Adjustable Forms, actually also had its own insurance through a different provider, Virginia Surety Co. Therefore the IIGF argued that it was not responsible for paying Hadrys's workers' compensation claim, but that Virginia Surety Co. was. Yet the Illinois Appellate Court disagreed.

The case revolved around whether or not Virginia Surety Co. was actually responsible for insuring Hadrys at the time of his construction site injury. The IIGF said that it was because it was an alternate form of insurance for Hadrys's employer. Virginia Surety Co. said that it was not because Adjustable Forms insurance policy stated that it would cover injured employees unless they had other insurance.

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June 26, 2008

Illinois Wrongful Death Act Interpreted by Illinois Supreme Court to Deny Recovery Of Unborn Child Aborted After Serious Injury To Mother

The Illinois Supreme Court handed down a controversial decision interpreting the Illinois Wrongful Death Act. The case, Williams v. Manchester, 2008 WL 879036 (Ill Sup Ct), involved a pregnant woman, the plaintiff, Michelle Williams, who was 10.5 weeks pregnant when she was seriously injured in a car crash in Chicago.

Because of her injuries, doctors advised that her own health was at risk if the uninjured unborn child was not aborted. The legal issue was whether or not Ms. Williams could bring a wrongful death suit against the wrongdoer for the death of her child. The court held that she may not because the crash did not injure the child. The reasoning went on to state that if the unborn child had survived, there would be no case to bring for lack of injuries (damages).

The case filed in the circuit court ended on summary judgment in favor the defendant. A divided panel of the Illinois Appellate Court reversed the lower court decision giving rise to the appeal accepted by the Illinois Supreme Court.

The Supreme Court took some of its analysis from common law and the history of the statutory right to recover for wrongful death. In the common law there is no right to recover for wrongful death. But that changed with the enactment of wrongful death statutes, which were first enacted in Illinois in 1853. Quoting from a prior decision the court stated, "a wrongful death action is barred if the decedent, at the time of death, would not have been able to pursue an action for personal injuries."

In the Williams case while the unborn baby was not injured from the accident, the mother's injuries were so severe and complicated that an effort to save the baby while treating the mother could have severely injured both the mother and the unborn child. For example, the child would have been exposed to an inordinate amount of x-ray. At the same time, catering to the life of the unborn child would have altered the mother's treatments so that she too would have had much greater risk of permanent, debilitating injuries which would not have been a risk with the ending of the pregnancy.

The Supreme Court was not convinced by the argument of plaintiff's counsel that the radiation exposure to the unborn child and the initial phase of the abortion to the fetus was a foreseeable injury to the unborn child stemming directly from the accident.

The court instead focused on its interpretation of the Illinois Wrongful Death Act requiring a decedent to have sustained a compensable injury prior to death in order to meet the threshold test. And as the unborn child did not sustain an injury directly from the accident the court ruled in favor of the defendant.

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June 23, 2008

Car Accident Pedestrian Death Leads to Cook County Jury Verdict of $2.5 Million- Largest Verdict For Death of 90+ Year Old

The $2.5 Million verdict handed down by a Cook County jury last week was not only the largest in Cook County for a person 90 years or older, but now stands as the largest in Illinois for anyone of that age group that has been injured or killed.

Ms. Grochis was struck by a car crossing the street at Grand Avenue and 73rd Street in Elmwood Park, IL. Because she survived after being dragged 25 feet by the defendant's car, she was awarded $1 Million for pain and suffering. The jury also awarded an additional $1.5 million for the wrongful death of Ms. Grochis, who lived independently, still handling her own shopping and errands, and used public transportation to get around. She was survived by two children ages 56 and 52, along with several grandchildren and great-grandchildren.

This Cook County verdict is reflective of a change in jury attitudes. There had been a tendency among jurors to perhaps discount or hold down the verdict to much lower levels because of the advanced years of the plaintiff. Typically when there has been either advanced years or a perceived life expectancy reduction the verdicts are on a significantly lower scale then the Grochis verdict.

The prior record for a verdict or settlement awarded to the surviving family of a person aged 90 or above was a $825,000 settlement in 1999. The jump between the '99 case and the Grochis verdict reflects that juries are now evaluating cases irrespective of the age of a plaintiff. This changing outlook will influence the way elderly plaintiff's cases are worked up and tried.

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June 9, 2008

Illinois Medical Malpractice Reform Faces Judicial Challenge

The Medicare Modernization Act of 2003 requires the president to submit legislation to remedy Medicare's money problems. Mixed up in this formula is the dangerous prospect that a tort reform provision will be attached that would severely limit the rights of citizens to bring claims against doctors, hospitals, nurses and clinicians who may be responsible for injuring patients.

Tort reform or "deform", as some opponents refer to it, has been enacted into law in many states, usually only to limit the ability of the injured to bring claims. In 2005 Illinois fell to tort reform in medical negligence cases only, the constitutionality of which is now being challenged. A test case succeeded in the Circuit Court of Cook County, where Judge Larson found the law to be unconstitutional. Currently that circuit court decision is being appealed and a decision by the Illinois Supreme Court is due later this year on the validity of that act.

The requirement for legislation is triggered when Medicare funding exceeds 45% by the general revenues for two consecutive years. The act also requires the majority and minority leaders of the Senate and the House to submit their own bills for consideration.

The House bill includes the tired, worn medical malpractice provisions that had been rejected before: $250,000 cap on noneconomic damages, the elimination of joint liability, restrictions of punitive damages, limits on fees for lawyers, and a shortened statute of limitations for filing cases. The idea here by the Bush administration is to apply these provisions to "any heath care lawsuit, thus effecting all medical malpractice cases, not just those involving Medicare patients".

This is onerous to those injured or killed by acts of medical negligence. It's shameful to punish those who were innocently injured this way, but have no restriction on the amount of money a corporation or insurance can recover in one of its lawsuits. It's shameful that other citizens injured in a truck accident would likewise have no such restrictions, when our friends, families and neighbors are limited by such an arbitrary set of laws, designed only to protect those who inflicted the harm.

The U.S. House and Senate committees considering the Medicare bill are required by the trigger law to report Medicare funding legislation out of committee to their respective chambers by June 30. The House is required to vote on final passage by July 30. Check back here for continued updates on this bill over the course of the next two months.

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January 13, 2008

Illinois Medical Malpractice Caps: An Overview

On August 25, 2005, an Illinois law went into effect that placed monetary limits on the possible awards in medical malpractice cases (735 ILCS 5/2.1706.5). In a case against a hospital the caps are set at $1 Million, and against a physician at $500,000.

Since its inception this law has caused much debate, the most recent of which involves a November decision by the Cook County Circuit Court ruling this law to be unconstitutional. Judge Joan Diane Larsen determined that caps on non-economic damages in medical malpractice cases violates the Illinois Constitution by violating the Separation of Powers Clause. This clause states that three branches of government (legislative, executive, and judicial) are separate and that no branch shall exercise powers properly belonging to another (Illinois Constitution).

One of the main arguments against caps on damages is that it eliminates a jury's ability to evaluate evidence on a case-by-case basis and limits its power to award damages. Both the Illinois and U.S. Constitution protect an individual's right to have their case tried by a jury of their peers, but once we start limiting a jury's freedom to make decisions then we are in essence stripping it of its power.

From here the issue will be heard by the Illinois Supreme Court, who could rule on it as early as this summer.

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