A jury in Zavala County, Texas recently hit Ford Motor Co. with a $28 million dollar verdict in a fatal rollover case. Two young women, Corina Garcia and Diana Alicia Alonzo, both 19, were thrown from the car and killed. Two other passengers were also thrown, but not seriously hurt. The attorneys representing the plaintiffs argued that the automaker was responsible because it used tempered side glass in the vehicle[a 2000 Explorer]even though Ford had been aware for years that a different type of glass reduced the risk of passenger ejection.
The case was briefly interrupted when Ford lawyers discovered that one of the jurors, Diana Palacios, was apparently romantically involved with one of the lawyers representing the plaintiffs. Ford then requested a mistrial. At the hearing on Ford's motion, it apparently came to light that in addition to dating the lawyer, the juror had apparently tried to steer two of the plaintiffs to her boyfriend for representation. The judge however, denied the motion[but did remove the juror]. The decision to deny the mistrial no doubt going to be raised on appeal.
Ford had presented evidence that the driver had been drinking before the accident and was speeding immediately before the accident. The jury found Ford 90% responsible for the deaths and the driver 10% responsible.
Sunday, April 24, 2005
Thursday, April 21, 2005
NO COMP LIEN IN MED MAL CASE
The Appellate Court for the Fourth District of Illinois came down with a decision recently clarifying how an employer can successfully claim a Workers' Comp lien on monies recovered in a related med mal case. In Borrowman v. Prastein, M.D., et al, the plaintiff suffered an injury to his heel after a fall at work in April, 1995. Shortly after his fall, plaintiff filed his Workers' Comp claim. Surgery was necessary due to the injuries. After surgery, the plaintiff developed a bone infection. The ortho surgeon prescribed antibiotics. When the infection worsened, another surgery was necessary. The defendant doctor also prescribed two more aggressive antibiotics, Vancomycin and Gentamycin. Although the bone infection cleared, the plaintiff experienced significant health problems associatiated with the use of the Vancomycin and Gentamycin. Ultimately the plaintff suffered irreversible damage to his inner ear. The two antibiotics should not have been prescribed without close scrutiny of the patient. In October of 1997, plaintiff filed suit against the various medical providers for the injuries he had suffered at their hands. In January of 2000, the plaintiff and his employer settled the Workers' Comp claim. Plaintiff's employer then asserted that it was entitled to some of the funds that were recovered in the Malpractice case. The plaintiff disagreed and ultimately the trial Court held that the employer was entitled to a large portion of the plaintiff's medical malpractice settlement.
Both parties appealed. In deciding the matter the Court determined that the Employer was aware that plaintiff had brought an action against the medical providers. The employer however, had not attempted to insert itself into the settlement disussions between the plaintiff and doctors. Furthermore, the Settlement Agreement used in the Comp claim failed to make any mention of the Med Mal case. The Court ruled that under those circumstances, the employer couldn't assert any sort of lien on the med mal proceeds. The lower court's ruling was reversed.
Both parties appealed. In deciding the matter the Court determined that the Employer was aware that plaintiff had brought an action against the medical providers. The employer however, had not attempted to insert itself into the settlement disussions between the plaintiff and doctors. Furthermore, the Settlement Agreement used in the Comp claim failed to make any mention of the Med Mal case. The Court ruled that under those circumstances, the employer couldn't assert any sort of lien on the med mal proceeds. The lower court's ruling was reversed.
Wednesday, April 20, 2005
THIS TECHNICAL STUFF
Still struggling to make this a more reader-friendly blog. Will be meeting with two web consultants over the next several days and hope that they can get me on the right path. The patience of those who are reading these entries(assuming that readers actually exist) is appreciated...
SUBROGATION DECISION
Interesting subrogation case out of the Fourth Appellate District. In American Family v. Cleveland, the defendant was a passenger in a car driven by Lakenya Champion. Champion was an American Family insured. American Family paid various medical expenses on behalf of Cleveland. Cleveland sued the driver of the other car and obtained a settlement. Not suprisingly, American Family wanted their money back. They sue Cleveland. At trial, the Court dismisses Counts I and II, where American Family alleged contractual subrogation and that Cleveland was a third party beneficiary. Court also found for Cleveland on the remaining count, equitable subrogation. Again, not suprisingly, American appealed.
On appeal, Cleveland argued that she wasn't liable for the medical payments because she wasn't a signatory to the contract, and thus, American couldn't enforce the contract against her(even if she was a third party beneficiary). The Appellate Court didn't buy it. The opinion noted that Cleveland wanted her cake and wanted to eat it too. The Court found that Cleveland couldn't accept the benefits of coverage under the contract and at the same time reject the subrogation rights under the same contract. The trial court was reversed.
Still struggling to make this a more reader-friendly blog. Will be meeting with two web consultants over the next several days and hope that they can get me on the right path. The patience of those who are reading these entries(assuming that readers actually exist) is appreciated...
SUBROGATION DECISION
Interesting subrogation case out of the Fourth Appellate District. In American Family v. Cleveland, the defendant was a passenger in a car driven by Lakenya Champion. Champion was an American Family insured. American Family paid various medical expenses on behalf of Cleveland. Cleveland sued the driver of the other car and obtained a settlement. Not suprisingly, American Family wanted their money back. They sue Cleveland. At trial, the Court dismisses Counts I and II, where American Family alleged contractual subrogation and that Cleveland was a third party beneficiary. Court also found for Cleveland on the remaining count, equitable subrogation. Again, not suprisingly, American appealed.
On appeal, Cleveland argued that she wasn't liable for the medical payments because she wasn't a signatory to the contract, and thus, American couldn't enforce the contract against her(even if she was a third party beneficiary). The Appellate Court didn't buy it. The opinion noted that Cleveland wanted her cake and wanted to eat it too. The Court found that Cleveland couldn't accept the benefits of coverage under the contract and at the same time reject the subrogation rights under the same contract. The trial court was reversed.
Monday, April 11, 2005
MED MAL INSURER NOT RAISING RATES
In a suprising development reported in the Chicago Sun Times on April 7, 2005, ISMIE, the insurance company for doctors[with about 60% of the market]has indicated that for the first time in 5 years, the company won't be raising their premiums. Although the Republicans drone on and on about a Medical Malpractice "explosion" and "crisis", the undisputed numbers tell a far different story. There were actually fewer Illinois malpractice cases filed in 2004 and the average amount ISMIE paid on claims went down 6%, to $556,000. Dr. Harold Jensen, the chairman of ISMIE had an unusual take on the numbers. Jensen felt that doctors had drawn attention to the "malpractice crisis" by[and I am not making this up]wearing green armbands.
It should also be noted that in 2004 ISMIE took in $420 million in premiums and only paid out $150 million in claims. Wow, $270 million to the good. Green seems to be an appropriate color for ISMIE as well.
It should also be noted that in 2004 ISMIE took in $420 million in premiums and only paid out $150 million in claims. Wow, $270 million to the good. Green seems to be an appropriate color for ISMIE as well.
Sunday, April 10, 2005
CHAMBER OF COMMERCE SURVEY
BIG SUPRISE: U.S. CHAMBER OF COMMERCE DOESN'T LIKE ILLINOIS COURTS!
According to a March 8, 2005 a report by Kevin McDermott in the St. Louis Post Dispatch, the US Chamber of Commerce claims Illinois has a anti-business climate. No shock there, because the Chamber jumped on the "tort reform" bandwagon last year and has been pushing the same propoganda for months. Just wanted to comment though on the questionable methodology the Chamber folks used in reaching its opinion that Illinois is anti-business. They called senior attorneys at companies with annual revenues of at least $100 million and asked them to give their opinions on the Illinois Courts. Wow, the Chamber should really be commended for knocking itself out, going after such a diverse cross section of voters. The Chamber has lost all credibility - it just continues spouting inaccurate, misleading statistics designed to scare the public into thinking the legal system is run amok. The Chamber has simply become another mouthpiece for the Conservative movement.
According to a March 8, 2005 a report by Kevin McDermott in the St. Louis Post Dispatch, the US Chamber of Commerce claims Illinois has a anti-business climate. No shock there, because the Chamber jumped on the "tort reform" bandwagon last year and has been pushing the same propoganda for months. Just wanted to comment though on the questionable methodology the Chamber folks used in reaching its opinion that Illinois is anti-business. They called senior attorneys at companies with annual revenues of at least $100 million and asked them to give their opinions on the Illinois Courts. Wow, the Chamber should really be commended for knocking itself out, going after such a diverse cross section of voters. The Chamber has lost all credibility - it just continues spouting inaccurate, misleading statistics designed to scare the public into thinking the legal system is run amok. The Chamber has simply become another mouthpiece for the Conservative movement.
Tuesday, April 05, 2005
MEDICAL MALPRACTICE "CRISIS"
I have been requested to speak at my local Chamber of Commerce meeting tomorrow on the alleged Medical Malpractice crisis in Illinois. The United States Chamber of Commerce, and a number of local chambers as well, have been very vocal about how this "crisis" is driving doctors out of Illinois. Suprisingly, we trial lawyers, the guys whose livelihood depends on communicating, are not doing a particularly good job getting our message out. The tort reform people have framed the issues - and from what I can see, aren't terribly concerned with accuracy or truthfulness. I have set forth below some of the mistruths the "tort reform" agents are spouting:
1. Caps on non-economic damages is a fair way to limit damages. Not quite. Caps discriminate against the young, the elderly, the poor, females and minorities. Those are the groups who may not have large economic losses[i.e. lost wages] that would offset the reduction in non-economic damages.
2. Caps will lower malpractice premiums. Not so fast. 19 states, over a 12 year period from 1991 to 2002, enacted some form of caps. In those states, the median increase in malpractice premiums over that span was nearly 50%. The median increase in premiums in non-cap states was significantly lower. Similarly, a 2003 General Office of Accounting study found no support for capping damages as a way to lower insurance rates.
3. Malpractice payments are the primary reason insurance rates go up. Not quite. The National Bureau of Economic Research found that malpractice verdicts and awards are not the primary force behind premium increases. A number of factors causes increases, including industry competition and the insurance underwriting cycle.
4. Caps have worked in other states. Ah, no, not quite. Mississippi, Nevada, Oklahoma, Texas and Ohio have all recently enacted caps. In those states premiums rose at nearly twice the rates as compared to states that did not have caps. In Missouri, where caps have been in place since the 1980's between 2000 and 2003, claims dropped to record lows and total payouts were down as well. Nonetheless, insurance premiums for physicians went up 121% in those three years.
5. Effective PR will get claims down[and premiums will surely follow]. Again, not quite. In Illinois, the number of claims ISMIE[ a large physician insurer] has seen the last several years has dropped. ISMIE's premiums, however, have continued to rise.
6. Doctors are running for the borders. Not true. As of May, 2004, there were nearly 40,000 licensed doctors in Illinois, up 5% from 2003. There are 9000 more doctors in Illinois in 2003 than there were in 1994.
7. The medical malpractice "crisis" is causing physician income to plummet. Not really. Physician income has taken a hit recently for a number of reasons, including Medicare reimbursement restrictions and HMO reimbursement policies. In 2001 an exhaustive study ws undertaken of California doctors. Caps had been in place for years. A full 43% of those polled indicated they intended to close their practice by 2003 citing a cut in income due to managed care and low reimbursement.
I got a lot of the above information from the Illinois Trial Lawyers Association Website. Give it a look.
1. Caps on non-economic damages is a fair way to limit damages. Not quite. Caps discriminate against the young, the elderly, the poor, females and minorities. Those are the groups who may not have large economic losses[i.e. lost wages] that would offset the reduction in non-economic damages.
2. Caps will lower malpractice premiums. Not so fast. 19 states, over a 12 year period from 1991 to 2002, enacted some form of caps. In those states, the median increase in malpractice premiums over that span was nearly 50%. The median increase in premiums in non-cap states was significantly lower. Similarly, a 2003 General Office of Accounting study found no support for capping damages as a way to lower insurance rates.
3. Malpractice payments are the primary reason insurance rates go up. Not quite. The National Bureau of Economic Research found that malpractice verdicts and awards are not the primary force behind premium increases. A number of factors causes increases, including industry competition and the insurance underwriting cycle.
4. Caps have worked in other states. Ah, no, not quite. Mississippi, Nevada, Oklahoma, Texas and Ohio have all recently enacted caps. In those states premiums rose at nearly twice the rates as compared to states that did not have caps. In Missouri, where caps have been in place since the 1980's between 2000 and 2003, claims dropped to record lows and total payouts were down as well. Nonetheless, insurance premiums for physicians went up 121% in those three years.
5. Effective PR will get claims down[and premiums will surely follow]. Again, not quite. In Illinois, the number of claims ISMIE[ a large physician insurer] has seen the last several years has dropped. ISMIE's premiums, however, have continued to rise.
6. Doctors are running for the borders. Not true. As of May, 2004, there were nearly 40,000 licensed doctors in Illinois, up 5% from 2003. There are 9000 more doctors in Illinois in 2003 than there were in 1994.
7. The medical malpractice "crisis" is causing physician income to plummet. Not really. Physician income has taken a hit recently for a number of reasons, including Medicare reimbursement restrictions and HMO reimbursement policies. In 2001 an exhaustive study ws undertaken of California doctors. Caps had been in place for years. A full 43% of those polled indicated they intended to close their practice by 2003 citing a cut in income due to managed care and low reimbursement.
I got a lot of the above information from the Illinois Trial Lawyers Association Website. Give it a look.
Monday, April 04, 2005
VERDICT OF NOTE
As recently reported in the Chicago Sun-Times, a Chicago jury recently whacked the Chicago Police Department for $17.5 million after a police chase went horribly wrong. The plaintiff, Vernon Hudson, was driving on the Eisenhower Expressway in 2001, on his way to help a friend whose battery had died. He heard sirens and pulled over to the side and saw 10-20 police vehicles whiz by as they chased a murder suspect. Another officer, assigned to the Chicago Housing Authority, heard the chase over the radio and promptly joined it. The officer had no authority to do so and crashed into Hudson's car. As a result of the crash, Mr. Hudson, age 51, could no longer use his legs and has only limited use of his arms.
WORKERS' COMP RULING CLARIFIES "REPETITIVE TRAUMA"
In a recent Second District case, the Appellate Court discussed the proof necessary for a repetitive trauma claim. In Hines Precision v. The Industrial Commission the claimant worked as a truck driver for five years. He drove approximately 200 miles a day. He delivered trusses that had to be strapped down either manually or with a tool. To do so required substantial force. The claimant estimated he tied down the straps 35 to 40 times a day. The claimant often had to re-strap a load due to rough roads. In late 2000 the claimant began having pain in his elbows, which he had never suffered before. Ultimately, he was diagnosed with carpal tunnel and nerve entrapment. Claimant's treating surgeon testified that there was a causal connection between the condition and claimant's job.
The employer hired an "independent medical examiner" to see the claimant. After finding the same condition, the expert testified there was NO causal connection. The foundation for his opinion was that the claimant didn't perform the strapping down on a regular basis. And he also opined the carpal tunnel could be related to his weight or smoking[though claimant hadn't smoked in 9 years]. The abitrater found no causal connection. The Industrial Commission reversed.
On appeal, the employer argued that the claimant spent only 2% of his day strapping down the loads, so there couldn't be a causal relation. The Appellate Court however, correctly pointed out that there is no requirement that a certain percentage of time be spent on a task to make it "repetitive". Interestingly, the Court also pointed out that the alternative explanations offered by employer's expert were "suspect".
As recently reported in the Chicago Sun-Times, a Chicago jury recently whacked the Chicago Police Department for $17.5 million after a police chase went horribly wrong. The plaintiff, Vernon Hudson, was driving on the Eisenhower Expressway in 2001, on his way to help a friend whose battery had died. He heard sirens and pulled over to the side and saw 10-20 police vehicles whiz by as they chased a murder suspect. Another officer, assigned to the Chicago Housing Authority, heard the chase over the radio and promptly joined it. The officer had no authority to do so and crashed into Hudson's car. As a result of the crash, Mr. Hudson, age 51, could no longer use his legs and has only limited use of his arms.
WORKERS' COMP RULING CLARIFIES "REPETITIVE TRAUMA"
In a recent Second District case, the Appellate Court discussed the proof necessary for a repetitive trauma claim. In Hines Precision v. The Industrial Commission the claimant worked as a truck driver for five years. He drove approximately 200 miles a day. He delivered trusses that had to be strapped down either manually or with a tool. To do so required substantial force. The claimant estimated he tied down the straps 35 to 40 times a day. The claimant often had to re-strap a load due to rough roads. In late 2000 the claimant began having pain in his elbows, which he had never suffered before. Ultimately, he was diagnosed with carpal tunnel and nerve entrapment. Claimant's treating surgeon testified that there was a causal connection between the condition and claimant's job.
The employer hired an "independent medical examiner" to see the claimant. After finding the same condition, the expert testified there was NO causal connection. The foundation for his opinion was that the claimant didn't perform the strapping down on a regular basis. And he also opined the carpal tunnel could be related to his weight or smoking[though claimant hadn't smoked in 9 years]. The abitrater found no causal connection. The Industrial Commission reversed.
On appeal, the employer argued that the claimant spent only 2% of his day strapping down the loads, so there couldn't be a causal relation. The Appellate Court however, correctly pointed out that there is no requirement that a certain percentage of time be spent on a task to make it "repetitive". Interestingly, the Court also pointed out that the alternative explanations offered by employer's expert were "suspect".
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