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Articles Posted in Personal Injury

courtroom-898931_1920.jpgOne of the surest topics on which to get agreement is that we should punish the filing of “frivolous” lawsuits. There are legitimate debates to be had over the definition of “frivolous”, who decides what is “frivolous”, and what the punishment (usually called a “sanction”) should be. For years, and for very good reason, there has been wide agreement that it’s best to leave these decisions to the judge on the case. Because he/she is in the best position to know whether a lawsuit is so lacking in merit (so “frivolous”) that it does not deserve to be in a courtroom, and if so, what the sanction should be for the party and/or lawyer who filed it.

As a lawyer who mostly files (rather than defends) lawsuits, I completely agree with the sanctioning of those who bring frivolous cases to court. Why? Because they not only bring discredit to my profession, but they occupy the taxpayer-funded resources of the court with cases that don’t deserve them, thereby making those resources unavailable (or less available) for those cases that do deserve them.

And I also agree that it must be the judge on the case who decides what is “frivolous”, whether there should be a sanction, and, if so, and what the sanction should be. This does not work perfectly, of course-nothing does-but I don’t believe there can be any responsible doubt that the judge is in the best position to make these decisions. That judge is in the best position, for example, to decide whether the lawsuit stretching the legal precedent is just a meritless money grab by an unscrupulous lawyer–who should be sanctioned– or a good faith effort by the lawyer to try to expand the law to help the powerless in society. In which case, no sanction should be imposed. Because some of the most important legal cases in our history started out with good faith efforts like this.

Could the airbag in the automobile you drive, that is supposed to protect you in the event of an accident, seriously harm or even kill you instead?

For millions of drivers in the U.S., the unfortunate answer is yes. And many of these people are still unaware of the danger.

Millions of Takata airbags, in dozens of car models and brands, have a defect that could cause them to explode when deployed, sending metal shrapnel into the driver and passengers. Current airbag recalls in the U.S could eventually include as many as 42 million vehicles with the potentially lethal Takata airbags, but the word has not gotten out to everyone about the danger. So far, only 12.5 million of these faulty airbags have been replaced, and that leaves millions of people at risk. 1

Every year, the General Assembly of Illinois passes new state laws which the Governor signs and approves. This year Illinois will have approximately 200 new laws on the books that could affect a wide range of citizens. A few of the most interesting and important new laws of 2017 are described below.

H.B. 6083, H.B. 4715 – These two laws are known collectively as “Molly’s Law”. The laws arise from the facts surrounding the death of 21-year-old Molly Young. Molly’s father attempted to file a wrongful death suit against Molly’s boyfriend, but the case was dismissed because the statute of limitations, two years, had passed. H.B. 6083 extends the statute of limitations for a wrongful death suit from two years to five years after the date of death of the individual. The second bill, H.B. 4715, creates much stronger penalties for public bodies who fail to properly comply with Freedom of Information Act Requests. The law will increase fines to $10,000 plus $1,000 for each day that the information is withheld. Molly’s father was unable to get the proper information from the police department regarding his daughter’s death and investigation in order to timely file his suit. Both of these new laws will hopefully assist plaintiffs in bringing claims against those who have injured loved ones and further remove roadblocks in retrieving useful and pertinent information from the government.

H.B. 6006 – Similar to the law requiring a vehicle to change lanes away from emergency vehicles who are pulled over with their lights on, this law requires vehicles to do the same for non-emergency vehicles who have stopped on the side of the road and have their flashing hazard lights on. The new law states that, when on a four-lane highway, a vehicle must change lanes into a lane not adjacent to that of the “disabled” vehicle. This law will protect those who are stranded on the side of the highway changing a tire or waiting for a tow truck.

Ice and Snow Injuries and the Partial Immunity of Land Owners

The Illinois Supreme Court has recently ruled on a case that could shed some light on the duties and responsibilities of landowners during this frigid weather and the recent snowfall. The case, Murphy-Hylton v. Lieberman Management Services, Inc., distinguishes the duties of landlords for snow and ice removal. Historically, landowners have no duty to remove natural accumulations of snow and ice. However, landowners do owe a duty of reasonable care to prevent unnatural accumulations of ice and snow on their premises where they have actual or constructive knowledge of the dangerous condition.

Normally, plaintiffs had brought these negligence claims under two different theories. The first being when there was a defective condition of the property or negligent maintenance of that property, and the second being when the landowner voluntarily undertook efforts to remove snow or ice, and due to this effort an injury occurred. However, being that one could be sued for taking action and causing an injury, the fear of litigation led many landowners and landlords to refrain from attempting to remove snow or ice from their property. This inactivity led to the Snow and Ice Removal Act of 1979.

(1) Insurance adjusters are paid employees of the insurance company. They are skilled at negotiation and are advised by experienced insurance company lawyers who know the law. Together, they know all the strategies to keep you from hiring a lawyer and to get you to settle your claim quickly for as little money as possible. They are not your friend. They are working against you, actively trying to see if they can get you to accept little to no money at all to settle your claim. They may tell you things that are not true, and even pretend that you are not entitled to compensation, to see if you will fall for it. You should not be talking to them.

(2) Insurance companies hope that you do not hire an experienced attorney. Because they know that, if you do, they are almost certainly going to have to pay you more money. They will tell you that you do not need an attorney. And they will lose no sleep at night over the fact that they are a billion-dollar company with an army of lawyers on retainer to protect their rights (and money), but will tell a single mom with no legal training, who has just been in a serious car accident, that she shouldn’t get a lawyer to protect herself. They prey on accident victims who need the money quickly–which, truthfully, is most of us–by making a lowball offer that they hope you will accept without hiring an attorney who will tell you how terrible their offer is. An experienced attorney will know how much your case is worth and will help you get the compensation you deserve. The insurance company has a lawyer to look out for it. You deserve the same protection.

(3) Do not give the insurance adjuster a recorded statement. A common trick of insurance adjusters is to try to get a recorded statement from you that will damage the value of your claim. They may try this when you are still in shock from the accident. They may–in a very friendly way–ask you to guess about facts relating to the accident, when your guesses may hurt you. The bottom line is that they know what they are doing, because they do it all day long. But you don’t. Most people who’ve been in an accident and wind up on the phone with an insurance adjuster have never been through that kind of thing before. And their instinct is to want to be nice and helpful to the adjuster, never believing that the adjuster is trying to trap them into giving damaging answers. Stay off the phone with them. Don’t let them record you.

The Illinois Supreme Court recently decided a case that directly affects the amount of time a plaintiff has to file a wrongful death suit after the death occurs. Prior to the case, the statute of limitations proscribed a two-year window for the filing of a lawsuit after a death caused by negligence. After the Supreme Court’s decision in Moon v. Rhode, plaintiffs now have two years after discovering that the death was wrongfully caused to file suit. This distinction could be the difference between having your case dismissed for being untimely and being able to successfully prosecute a claim for damages.

The Moon decision incorporates the discovery rule, a rule often used in personal injury cases. The rule states that the statute of limitations only begins to run once the injured party “discovers” their injury and the cause of that injury. A classic example would be cancer caused from exposure to chemicals in the workplace that are only discovered years after being exposed to the chemicals. Because the injured party did not “discover” the injury (cancer) until later in life, the two-year statute of limitations did not begin to run until this discovery. The same is now true for wrongful death cases. The statute of limitations does not begin to run until the plaintiff “knows or reasonably should have known” that the death was wrongfully caused. Typically, this will apply to medical malpractice cases where a layperson may not immediately understand that the death of a loved one was caused or contributed to by negligent medical care.

While this new holding will be extremely helpful to those plaintiffs who do not know that their loved one’s death was wrongfully caused, those who believe there was an issue of medical malpractice should not wait to talk to an attorney. The statute of limitations applies to those who should have known that the death was wrongfully caused and any time spent waiting could compromise your case. Hopefully, this new rule will benefit those families who have lost a loved one only to find out later that their death was wrongfully caused. Now, that discovery can be used to restore their family and hold those responsible for the death accountable.

A shift in power and control has returned to those who most need it – nursing home residents and their families. In a recent ruling, the Centers for Medicare and Medicaid Services (CMS) prohibited mandatory pre-dispute arbitration agreements between federally funded nursing homes and their residents. Prior to the new ruling, many nursing homes required residents to sign an arbitration agreement which forced residents to solve any dispute that may arise between them and the nursing home outside of court. These agreements heavily favored the nursing homes and took away a resident’s power to use the court system for injuries caused by a nursing home’s wrongful conduct.

The ruling is a strong attempt to return that power back to the plaintiffs in disputes concerning nursing homes. This is especially important in cases involving negligence, elder abuse, sexual harassment, and even wrongful death. Arbitration keeps these cases out of the view of the public and often leads to much smaller rewards or settlements for those harmed by the home.

The CMS, a federal agency within the Department for Health and Human Services, controls more than $1 trillion in Medicare and Medicaid funding. They passed the rule after 16 different states and the District of Columbia lobbied the government to completely cut funding to nursing homes that had arbitration clauses in their residency agreements. They argued that “arbitration kept patterns of wrongdoing hidden from prospective residents and their families”.

The national spotlight has recently shifted its attention to Disney World and the awful tragedy that transpired at one of its resorts when an alligator attacked and killed a small child. While there are many questions and much more to be learned, the most immediate question is how could this happen? While it is too early to assign legal blame, it is natural to look at the facts and ask if Disney provided proper warnings prior to this tragedy.

This question can be superimposed onto any company, park, or public entertainment entity. When there is a possibility of an injury, what must the company do in order to adequately warn, or give notice, to the citizens using the facility or outdoor area? Using Disney as an example, it created an inviting, beach environment with lounge chairs and the safe, cheerful atmosphere one would expect from a Disney resort. According to news reports, “no swimming” signs were posted around the lagoon, but, allegedly, nothing in the area warning of wildlife, alligators, or any other imminent dangers. The ultimate question of liability will be whether Disney knew of this potential danger of alligator attacks and gave proper notice to its invitees.

Similarly, Illinois law states that a company must take the appropriate steps to keep its guests safe. This includes giving notice of any dangers or potentially dangerous conditions. Illinois courts have found that signs are a necessity in alerting citizens to the rules and regulations of a public place. Bowman v. The Chicago Park District, 2014 IL App (1st) 132122. In Bowman, a 13-year-old girl was injured at a Chicago park when she hurt herself on a broken slide. The park district argued that they were not liable because the park had been designated, by city ordinance, as a park for children 12 and younger. Because the 13-year-old plaintiff was not an intended user of the park, the trial court found the defendant to be free of liability and dismissed the case. The court of appeals reversed the judgment and stated that there must be proper notice to the attendees in order to release the park district from liability. In reversing, the court stated, “Playgrounds are designed for children. What would prompt a 13-year-old child to observe a slide and think, ‘am I really the intended user of this slide?'”.

The third leading cause of death in the United States may come from those you trust the most. A new study published in The BMJ (formerly the British Medical Journal) found that medical errors may cause over 250,000 deaths a year in the United States alone. Topped only by heart disease and cancer, these errors by medical professionals include diagnostic errors, surgical errors, infection, medication errors, communication breakdowns, failure to perform the necessary tests, and even healthcare worker fatigue. The findings were created from studies done at Johns Hopkins Medicine starting in 1999.

The study calls for wide-ranging changes in the medical field, not only to correct these possibly deadly errors but also in how the errors are reported. “Medical error” is not a reported cause of death on death certificates. Similarly, there is not a “medical error” category in the annual reports on deaths and mortality from the Center for Disease Control and Prevention (CDC). The CDC only focuses on the “underlying cause of death” in their statistics, so even if a medical error is present in a case, the focus for the CDC remains on the reasons that led a person to seek medical treatment. Also, billing codes, the codes used when categorizing inpatient and outpatient treatment, are focused on maximizing billing and not recognizing medical errors. The death certificate and cause of death listed must line up with the aforementioned billing code.

Over the last ten years, Illinois public hospitals have paid out more than $180 million for patient deaths resulting from medical errors. Cook County paid out $93.2 million in settlements for 79 wrongful death cases at four different Chicago hospitals in the same span. The Johns Hopkins study is an attempt to shed light on these errors. “The inability to capture the full impact of medical errors result in a lack of public attention and a failure to invest in research”. The first step in making medical facilities safer is by creating a proper way to report these deaths caused by medical errors. Johns Hopkins Medicine, as well as other medical groups, are calling for reform starting with creating a “medical error” box on death certificates. By first creating a proper and efficient way to collect data on patient death and medical errors, medical professionals can then create the proper safety nets and protocols to address the problem.

Co-authored by Cassidy Carroll of The Collins Law Firm, P.C.

Can computer algorithms use officers’ behavior to predict police misconduct?

It may sound like something out of a science-fiction movie, but researchers, part of the White House’s Police Data Initiative, are working at the University of Chicago to try to build a better early warning system that predicts when officers will commit police misconduct against civilians. Using over a decade of data from the Charlotte Mecklenburg Police Department, researchers say their algorithm-based early warning system can predict misconduct between police officers and civilians and suggest preventive measures by looking for police misconduct warning signs in the data. The algorithm-based early warning system’s sensitivity and accuracy holds great promise for serving as a method for preventing police misconduct. However, algorithm-based early warning systems to predict police misconduct have been tested before and often met with opposition.

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