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  • Illinois Court on Proving Liability for Medical Malpractice

    Oftentimes, physicians are employed by more than one medical institution. This can make it difficult establish liability for negligent treatment in medical malpractice cases, since it is sometimes difficult to prove which hospitals employed a physician for the purposes of the negligent conduct at issue. This was the very issue presented in Turner v. U.S., No. 09 C 4606, where the plaintiff was permanently injured during an operation performed on him at Edward J. Hines Jr. Veterans Administration Hospital (VA) in Chicago, Illinois. The brother and guardian of the injured patient, John Johnson, claimed oh his brother’s behalf that the anesthesiologist who allegedly caused the injury was employed by both the VA and Loyola University Medical Center (Loyola), and thus both institutions were responsible for her medical malpractice. In support of the claim that the physician was acting as an agent of Loyola at the time the surgery occurred, the plaintiff offered payroll forms and correspondence between Loyola and the physician indicating she was employed by both Loyola and the VA, evidence that the hospitals are “affiliated institutions” and provide each other with their respective “call schedules,” evidence that the physician’s employment with Loyola requires her to obtain Loyola’s approval before engaging in certain activities, such as clinical research,  that both institutions sponsored the research study in which Mr. Johnson agreed to participate, and the physician’s acknowledgment that she “sometimes” wore her Loyola lab coat while working at the VA. The Court found that the evidence was insufficient to support the conclusion that the physician was an agent of Loyola’s at the time of the surgery: “Even if (the plaintiff’s) evidence were not stacked against undisputed, affirmative evidence that Dr. Hanna performed work on Mr. Johnson’s case exclusively as an agent of Hines, not of Loyola,FN6 plaintiff’s cited evidence is not of the sort that could lead a reasonable jury to conclude that Loyola controlled Dr. Hanna’s “manner of doing the work” she performed during Mr. Johnson’s surgery.” The lesson to be learned is that before filing a medical malpractice lawsuit, it is important to carefully research the relationships of the doctors that you believe are at fault and the nature of their relationships with the institutions for whom they work. Sometimes liability and responsibility for negligent conduct may not always be as clear cut as it first seemed. The Ankin Law Office LLC (www.ankinlaw.com) handles workers’ compensation and personal injury cases. You can reach the firm by calling (312)[READ MORE…]

  • Should Motorcyclists Be Subjected to Safety Checkpoints?

    Congress is currently considering legislation that would provide monetary grants to states mandating random safety checkpoints for motorcycles. Georgia and New York already have similar programs in place and the grants under consideration would encourage other states to implement similar laws. According to this Los Angeles Time article, the impetus behind the passage of this legislation is to reduce the number of motorcycle accidents: In 2009, 4,462 motorcyclists were killed, a decrease of 16% from the previous year, according to the most recent figures from the National Highway Traffic Safety Administration. Twenty-two percent of motorcycle riders involved in fatal crashes in 2009 were riding without a valid motorcycle license at the time of the collision, compared with 12% of drivers of passenger vehicles involved in fatal crashes who lacked a valid license, according to the agency. So, how effective are the checkpoints? Do they actually prevent accidents and protect motorcyclists and others on the road? Perhaps. Unfortunately, the jury’s still out: Of approximately 27,000 motorcyclists that passed through their checkpoints last year, about 2,500 were stopped for closer inspection, Halvorsen said. Of those, 380 were ticketed for an illegal helmet. Six motorcyclists were arrested on suspicion of drunk driving. Forty-nine motorcyclists were ticketed for operating a motorcycle without the proper license class. A total of 1,665 tickets were issued. Not everyone supports this proposed legislation. According to opponents of the law, including the American Motorcyclist Association, the potential benefits don’t outweigh the significant violation of motorcyclist’s rights. Instead the association argues that efforts to protect motorcyclists should be aimed at preventing crashes rather than arbitrarily stopping and searching motorcyclists. And, even some lawmakers agree and have suggested that taxpayer dollars would be better spent on educational programs intended to prevent crashes from ever occurring. What do you think? Is it fair to target motorcyclists over other types of motorists? Do these types of laws have the intended effect of making the roads safer by preventing motorcycle accidents or do they unnecessarily violate the rights of motorcyclists? The Ankin Law Office LLC (www.ankinlaw.com) handles workers’ compensation and personal injury cases. You can reach the firm by calling (312) 346-8780.

  • Replacing Children’s Car Seats After an Automobile Accident

    Car accidents are a fact of life. If we escape with just a few scrapes and dents to a fender and no injuries, most of us consider ourselves lucky. But, even if you and your loved ones emerge from the accident unscathed, what about your child’s car seat? Is it still safe to use after an automobile accident? Unfortunately, according to the National Highway Traffic Safety Administration (NHSTA), there’s no clear cut answer to that question. Instead, it depends on the specific circumstances surrounding the car accident. In most cases, after a minor accident, car seats likely do not need to be replaced. However, according to the NHSTA, car seats should be replaced after severe or moderate accidents. But, how do you know for sure? Well, as explained in this ABC affiliate’s article, the NHSTA has issued guidelines to assist in determining whether your child’s car seat should be replaced:  Child safety seats probably do not need to be replaced if all of these conditions are met: 1. The vehicle was able to be driven away from the scene of the accident. 2. The door nearest the safety seat was undamaged. 3. No vehicle occupant was injured in the accident. 4. The airbags did not deploy. 5. There is no visible damage to the safety seat. Of course, even if the car seat is unharmed after a car accident, it only provides adequate protection if you use it properly. As we explained in a prior post, it’s important to install your child’s car seat correctly and appropriate use of car seat tethers is key. Guidelines for proper installation of car seats can be found on the Safe Kids USA Web site or on the Web site for the National Highway Traffic Safety Administration. The Ankin Law Office LLC (www.ankinlaw.com) handles workers’ compensation and personal injury cases. You can reach the firm by calling (312) 346-8780. Related articles Crash test dummy unveiled for larger children (cnn.com) Auto Insurance Co. Promotes Car Safety for Children (news.onlineautoinsurance.com) U.S. Car Accident Map and Chicago Bicycle Accident Map (thechicago-injury-lawyer.com) How to Buy a Safe and Affordable Car Seat (couponshoebox.com)

  • NFL Claims Workers’ Compensation Should Cover Players’ Head Injuries

    Last August we discussed lawsuits brought by over 75 ex-football players against the National Football League. The players sought unspecified amounts of damages for head injuries sustained over the course of their careers. The players alleged that the NFL knew of the harmful effects of multiple concussions as early as the 1920s, but kept that information from players until 2010. Riddell, the helmet maker, was also named in the lawsuit as a defendant. These lawsuits are still pending and a hearing was recently held in Miami to determine whether the cases, which were filed in various federal courts, including Atlanta, Miami, New York and Philadelphia, should be consolidated into a multidistrict region. One interesting issue in this case is the possibility that the NFL will claim that the terms of the collective bargaining agreement between the league and the players should apply to the players’ head injuries, thus requiring the players to seek compensation via more traditional outlets such as workers’ compensation and disability benefits and the NFL’s medical and long term care plans. As explained in a Workforce.com article about this lawsuit, according to an attorney representing many of the players,  the concussions and other head injuries suffered by the players were sustained in ways unrelated to typical workforce dangers: While some players have been able to receive benefits for concussion-related injuries, McGlamry said player attorneys are seeking to prove, in part, that their clients face health problems due to negligence that extended beyond typical workplace hazards. So, while the NFL would prefer to limit recovery by the injured players to more traditional venues, the players claim that the league negligently misled them by downplaying the risks of head injuries and minimizing the long term effects of concussion-related injuries and cognitive disorders. The outcome of this case remains to be seen and it will likely be quite some time until this brain injury lawsuit winds its way through the court system and a resolution is reached. But, nevertheless, it is an important case and emphasizes the dangers of traumatic brain injuries and the risks associated with engaging in activities that tend to result in head injuries. The Ankin Law Office LLC (www.ankinlaw.com) handles workers’ compensation and personal injury cases. You can reach the firm by calling (312) 346-8780. Related articles Hall of Famer suing NFL over health problems (foxnews.com) NFL back Jones-Drew disparages head-injury reforms (sfgate.com) NFL questions validity of concussion[READ MORE…]

  • Illinois to Allow Cameras in Courtrooms

    Up until very recently, Illinois was 1 of 14 states refusing to allow the use of cameras in courtroom for the purpose of recording court proceedings. But its hold out status changed last week after an announcement from the Illinois Supreme Court. The Court explained that it would test the waters and permit the use of cameras in select courtrooms via a special pilot program. As part of the test project, use of cameras in courtrooms would be limited to courts in the 14th Judicial District, which is located in Western Illinois near the Iowa border and includes Rock Island, Henry, Mercer and Whiteside counties. The decision to permit cameras in court was met with mixed reviews, as explained in this Chicago Tribune article: Evans (chief judge of the Cook County Circuit Court) praised the court’s decision last week, saying that allowing the public to see what happens inside a courtroom would allow them better understand the justice system in an era where most people can watch hours of courtroom drama daily on shows like “Law & Order.” “The way democracy works best is when the public is informed,” he said. “This will show the public that the courts are not like they see on those programs.” Some of Evans’ peers were concerned that cameras might make local courtrooms more like the TV versions, with witnesses, attorneys and even judges more likely to act out to draw attention to themselves. Of course, this debate is not a new one. Every time any state proposes allowing camera in courtrooms, similar arguments are made and there are some who vehemently oppose to the concept. Even so, the majority of states allow cameras in U.S. courtrooms and for good reason: transparency is an important part of the judicial process. Permitting the use of cameras in courtrooms and thus allowing the recording of Illinois lawsuits makes the court process more transparent and more easily accessible to the general public. The Ankin Law Office LLC (www.ankinlaw.com) handles  workers’ compensation and personal injury cases. You can reach the firm by calling (312) 346-8780. Related articles Northwest Illinois Courts First To Get Cameras (chicago.cbslocal.com) Cook County Plans To Go Ahead With Cameras In Courtrooms (chicago.cbslocal.com) Put U.S. Supreme Court arguments on TV (cnn.com) Ill. Supreme Court To Allow Cameras In Courts (chicago.cbslocal.com)

  • Minnesota Bridge Collapse

    The Minnesota Supreme Court ruled last November 2011 that the State of Minnesota could proceed with its claim against Jacobs Engineering Group, Inc., the California firm that designed the Minnesota bridge that collapsed in 2007, killing 13 and injuring 145 others.  The State’s claim against Jacobs Engineering Group (Jacobs) is based on the fact that the bridge was designed by a firm that Jacobs acquired in 1999.  The bridge collapse was found to have been caused by a design error that led to inadequate load capacity. More than 100 lawsuits were filed in 2009 and, pursuant to the Minnesota Tort Claims Act, the State of Minnesota has paid more than $37 million to victims of the bridge collapse.  The State has also sued URS Corporation, the firm hired to inspect the bridge in 2003, and Progressive Contractors Inc., the company who had performed repairs on the bridge.  Both of these companies have also filed claims against Jacobs, the design firm, seeking contribution, indemnity and reimbursement for their liability under a Minnesota law that allows injured victims to make a statutory claim for reimbursement in the event of an accident.  The court dismissed these claims, however, due to a ten-year Statute of Repose, which provides that a company is immune from liability ten years after construction of the bridge.  Since the bridge was built in 1967, liability of Jacobs with respect to the claims of URS Corporation and Progressive Contractors expired in 1977. Despite the fact that the indemnity claims of URS and Progressive Contractors against Jacobs were dismissed, the State of Minnesota’s claims against Jacobs were not dismissed.  The Minnesota Supreme Court ruled that the State’s claims for reimbursement could continue due to a Minnesota statute that retroactively revived the State’s claims despite the expiration of the State of Repose deadline.  Specifically, Minnesota statute 3.7394 allows the state to recover from any responsible third parties any payments made from the emergency relief fund despite any statute to the contrary.  Accordingly, the State is permitted to seek reimbursement for the payments made to victims of the bridge collapse despite the time limitations in the Statute of Repose. Impact of Court’s Decision The Minnesota Supreme Court’s ruling allowing the case to proceed against Jacobs Engineering could have far reaching effects.  Despite a Homeland Security Report issued in April of 2011 revealing that nearly 12 percent of U.S. bridges are structurally deficient and[READ MORE…]

  • Tracking Medical Device Implants

    In an attempt to protect consumers from the dangers of defective medical devices, the U.S. Senate recently proposed draft legislation that would require manufacturers to conduct ongoing safety studies of medical devices even after the device has obtained the approval of the U.S. Food and Drug Administration (FDA).  The legislation was drafted, in part, as a response to the increasing number of lawsuits that have been filed against the manufacturers of defective medical devices, particularly vaginal mesh implants. Currently, the FDA permits certain medical devices to be approved under its 510(k) system, which requires only that manufacturers demonstrate that their product is substantially similar to one already on the market.  The Senate pointed to the 2010 recall of the DePuy ASR hip implant system, which was approved under 510(k) procedures, as evidence that the current guidelines are ineffective in protecting the public from dangerous and defective medical devices. With respect to the specific dangers associated with transvaginal mesh implants, the FDA has also requested that manufacturers of vaginal mesh implants, such as Bard and Johnson & Johnson, provide additional information regarding the companies’ safety inspections and recall procedures. Since 2008, the FDA has warned consumers and health practitioners since 2008 about serious complications associated with vaginal mesh implants that are used to treat pelvic organ prolapse and stress urinary incontinence.  According to the FDA, more than 1,000 reports from nine surgical mesh manufacturers, including American Medical Systems, Bard, Boston Scientific, Caldera, Ethicon, Gynecare, Johnson and Johnson, Mentor and Sofradim, have been filed with the FDA’s adverse events reporting database.  The American of Obstetricians and Gynecologists and the American Urogynecologic Society issued a joint statement last November recommending that the use of transvaginal mesh be limited.  Although the FDA is continuing its safety review of vaginal mesh implants, there are currently no plans to issue a recall of these products. Hundreds of lawsuits have been filed against the manufactures of transvaginal mesh implants, as well.  C.R. Bard and Johnson & Johnson face hundreds of lawsuits from women claiming that their transvaginal mesh implants caused scarring, pain, bleeding, blood vessel damage and other complications. If you have been injured by a medical device, such as transvaginal mesh or a hip replacement system, you may wish to consult with an experienced product liability attorney.  At Ankin Law Offices, LLC, our knowledgeable Chicago product liability attorneys focus on protecting the victims of dangerous and[READ MORE…]

  • BPA Litigation Hits Roadblock

    Litigation pending over BPA in plastic bottles has hit a major roadblock.  Last month a Missouri federal court denied class certification for the plaintiffs’ claims over the use of bisphenol A in baby bottles and sippy chips.  The plaintiffs’ claims were part of multidistrict litigation pending in a federal court in Missouri.  Multidistrict litigation, or MDL, is a federal court procedure whereby civil actions with common issues of fact are combined for purposes of discovery procedures and pre-trial motions. Although the court initially refused to certify three proposed multistate classes in 2011 based on issues regarding choice of law, commonality, and damages, the court granted the plaintiffs an opportunity to show that a class of Missouri-only consumers is appropriate for class certification.  The plaintiffs then filed a motion for class certification of claims brought by Missouri-only plaintiffs against three manufacturers of baby bottles and children’s sippy cups – Handi-Craft Company, Gerber Products Company, and Evenflo Company, Inc. In denying the plaintiffs’ motion for class certification of Missouri-only plaintiffs, the court focused on the plaintiffs’ lack of standing.  A court may not certify a class if the proposed class includes members who lack standing to bring a lawsuit against the respective defendants.  The plaintiffs’ class in this case included individuals who had not suffered an injury, such as those individuals who knew about BPA’s existence and the potential dangers associated with BPA but purchased the products despite possessing this information. The court also denied class certification based on issues of reliance.  For instance, plaintiffs argued that knowledge includes only consumers’ reliance on defendants’ alleged nondisclosure of the dangers associated with BPA.  The court disagreed with plaintiffs’ assessment, however, and explained that the issue of reliance presupposes that the consumer did not know the relevant information.  Since many plaintiffs in this case did possess knowledge regarding the potential dangers of BPA prior to purchasing the products, reliance could not be asserted. Moreover, the court determined that the proposed class included individuals who may not have suffered an injury even if they were unaware of BPA when they purchased the products.  The plaintiffs argued that the class members were injured through the lack of material information prior to making their purchases, but the court held that the consumers were purchasing baby products and not information. In addition, the court found that there were concerns regarding commonality of claims with respect to the proposed[READ MORE…]

  • Johnson & Johnson Recalls 12 Million Bottles of Motrin

    Healthcare and pharmaceutical giant Johnson & Johnson (J&J) recently issued a recall of approximately 12 million bottles of its popular pain reliever, Motrin, due to concerns that the Motrin IB pills may not dissolve and begin working as quickly as intended, resulting in delayed pain relief, as the pills approach their three-year expiration date.  The recall only affects Motrin IB from retailers, and not those in the hands of consumers, since there is no safety risk. The recalled bottles of Motrin were sold in 24 or 30 count packages that were distributed in the United States, Puerto Rico, the Bahamas, Fiji, Belize, St. Lucia and Jamaica.  There are 59 affected lot numbers, all of which are listed on the product’s Web site at http://www.motrin.com.  The affected bottles of Motrin were manufactured between February 2009 and July 2011. J&J’s Prior Recalls J&J has been plagued by safety problems and efficacy concerns with respect to its products for the past several years.  Since September 2009, J&J has recalled a number of prescription and over-the-counter medications, including children’s and adult Tylenol and Motrin, Benadryl, Zyrtec, Rolaids, Simply Sleep pills, Prezista (an HIV medication), Levaquin (an antibiotic) and Topamax (an epilepsy medication).  The manufacturer has also recalled a number of its medical devices, including hip replacement systems, contact lenses and diabetes test strips. As we reported, earlier last year, J&J was ordered to pay $1.8 million to an 82-year-old man from Minnesota who claimed that he was injured by Levaquin, an antibiotic used to treat infections such as pneumonia and chronic bronchitis, as well as sinus, urinary tract, kidney, prostate and skin infections.  Levaquin has been known to cause complications including tendon damage, Achilles tendon rupture, inflammation, Achilles tendonitis, and injury to the rotator cuff, biceps, hand and thumb that may require extensive surgery and could leave the patient incapacitated and facing large medical bills. J&J’s recalls cost the company $900 million in 2010 alone as a result of lost revenue from products pulled from store shelves, factory renovation costs, and legal expenses.  J&J’s Consumer Healthcare factory in Fort Washington, Pa., has been closed since spring 2010 when serious health problems forced the company to undergo a comprehensive renovation and rebuilding of the facility. J&J’s safety and efficacy concerns have sparked the interest of the federal government as well.  The U.S. Food and Drug Administration (FDA) and Congress are both investigating how the company’s[READ MORE…]

  • New California Car Seat Law Targets Older Children

    With the new year came new laws, including a new California car seat law that requires children to use a booster seat until they are age 8 or 4 feet, 9 inches tall.  The previous California law only required children to remain in car seats until they were 6 years old or weighed 60 pounds.  The new law eliminates any weight requirements.   Although children over the age of 8, but under the height requirement, are not required to use a booster seat, California’s Office of Traffic Safety has stated that it considers the use of a booster seat in the cases to be “best practice.” Because seat belts are designed to fit adults, a booster seat “boosts” a child up to allow the adult-sized seat belt to fit properly.  In order for a seat belt to fit correctly, the lap belt should be low on the hips, touching the upper thighs, with the shoulder belt crossing the chest without touching the face or neck, according to the Office of Traffic Safety.  If the belt is ill-fitting (for instance, it crosses the stomach instead of the hip bones), a child can be severely injured by the seat belt itself in an auto accident.  It can also be dangerous for children to put the shoulder belt behind their back or arm as it can increase the risk of head and spinal cord injuries. Parents or drivers can be fined a minimum of $475 and receive one violation point on their driving record for each child under 16 who is not using a booster seat as required by the new law. The use of booster seats has been shown to increase a child’s chance of surviving a crash by 45 percent, according to Christopher J. Murphy, director of California’s Office of Traffic Safety. Illinois Seat Belt Laws Illinois law also requires that all children younger than 8 years of age be properly restrained in a child safety seat.  Additionally, as we recently reported, a new Illinois law that went into effect January 1, 2012 requires that everyone in a vehicle buckle up (with a few exceptions), including backseat riders.  Previous Illinois law only exempted backseat riders over 18 from the requirement to use a seatbelt. The new Illinois law exempts passengers in ambulances, taxis, school buses, delivery trucks that make frequent stops and do not exceed 15 mph, and anyone with a physical[READ MORE…]

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    Our firm handles workers' compensation and personal injury claims in Chicago, Berwyn, Joliet, Cicero, Waukegan, Chicago Heights, Elgin, Aurora, Oak Park, Oak Lawn, Schaumburg, Bolingbrook, Glendale Heights, Aurora, Niles, Schaumburg, Arlington Heights, Naperville, Plainfield and all of Cook, DuPage, Lake, Will, McHenry, LaSalle, Kankakee, McLean and Peoria Counties.