Chicago Injury Lawyer Blog

At Hurley, McKenna, & Mertz, we are well aware of the trauma that accompanies wrongful death of children in foster care, as we have both experience and success with such cases. A recent article in the University of La Verne Law Review authored by Daniel Pollack and Gary L. Popham, Jr. illustrates the severity of the cases involving wrongful death of foster children (Pollack and Popham, LaVerne Law Review, Vol 31:1).

The U.S. Department of Health and Human Services reports that an estimated 1,460 children died from abuse or neglect during the fiscal year 2005. This shockingly large number is only the tip of the ice burg when it comes to foster care issues. However, it is difficult to generalize a problem such as wrongful death of foster children since state laws regarding who can bring suit and what damages may be sought vary from state to state. Furthermore, while the goal of foster care is to “provide a stable, nurturing, and non-institutionalized environment” for children who have been removed from their biological parents, the system of foster care has proven to be notoriously hard to monitor adequately. Sadly, sixty percent of children who enter foster care do so as a result of abuse or neglect from their biological parents. For some of these children, the abuse and neglect only continues.

Evelyn Pesante was the biological mother of four-year-old Angelica who was killed while in foster care. Ms. Pesante brought a wrongful death suit seeking damages for pain and suffering. Angelica and her half brothers were removed form Ms. Pesante’s care as a result of neglect and placed in foster homes. While in foster care, Angelica was severely injured by her foster parent’s thirteen-year-old, 180-pound son who tackled the four year old causing her to lacerate and rupture a liver. After receiving no medical care and essentially bleeding to death internally, Angelica became disoriented and fell down the stairs in the home, causing her death. This is only one case, but the article goes on do describe many other cases that are just as disheartening.

Such irresponsible foster care is a nationwide problem. As a Chicago personal injury attorney who has argued a similar case in Illinois, I am outraged that abuse and neglect is a continuous problem in foster care situations. For many of these children, abuse and neglect is all they have ever known, something we simply cannot tolerate.

Although drivers distracted by cell phone use has received a lot of notoriety lately, most people don’t consider the effect cell phones have on pedestrians. The boom of mobile devices that not only allow users to talk, but also to text and to surf the internet opened a new world to the new age multitasker. The new distracted walking phenomenon has made crowded city sidewalks perilous for the average commuter.

One such unlucky pedestrian, 25 year old Tiffany Briggs, was “lost in conversation” when she ran into a parked truck (New York Times, Matt Richtel, 1/17). Although distracted walking accidents tend to be much less serious than their driving counterparts, they can be serious and they are increasing dramatically. In 2008, just over a thousand pedestrians made emergency room visits because of walking while talking or texting. An Ohio State University study concluded that the 2008 emergency room visits were two fold the 2007 visits.

As car and truck accident attorneys in Chicago who fight through the city sidewalks filled with distracted walkers in a daily basis, we at Hurley, McKenna & Mertz urge all people to be careful when walking as well as driving, for their own safety as well as the safety of others.

U.S. Customs and Border Protection officials are reminding parents this holiday season to beware of imported toys that may either be dangerous to children or in violation of copyright laws (12/24 Miami AP for FindLaw). Although customs officials intercept many dangerous and illegal products, some inevitably get on the market unnoticed and an influx of imported toys occurs for the holiday season. Last year, 1,000 shipments of products were seized, the majority of which came from China.

Items commonly intercepted include, “black toy guns that could be easily confused for real firearms, yellow toy ducks with lead paint and bright green, frog-shaped lighters without safety mechanisms.”

As a Chicago attorney with experience in products liability related personal injuries, I too urge all consumers to purchase products carefully, especially during the hectic holiday season and first of the year sales.

The Consumer Product Safety Commission announced a recall this week of “more than 50 million Roman-style shares and roll-up blinds because of the risk children may be strangled by the cords” (12/17, AP for FindLaw).

To date, The CPSC says five deaths and 16 near-strangulations have resulted from Roman shades, in addition to three deaths connected to roll-up blinds.”

As a chicago personal injury attorney, I join the commission and the industry in urging parents to ensure all shades and blinds in their homes have no accessible cords. Cordless window coverings are recommended for all homes where children live or visit.

The World Heath Organization said Wednesday, “Tobacco use kills at least 5 million people every year, a figure that could rise if countries don't take stronger measures to combat smoking” (12/11, M.Cheng, AP London for FindLaw).

This is a world-wide problem as a new WHO report on tobacco use and control, “said nearly 95 percent of the global population is unprotected by laws banning smoking. WHO said secondhand smoking kills about 600,000 people every year. The report describes countries' various strategies to curb smoking, including protecting people from smoke, enforcing bans on tobacco advertising, and raising taxes on tobacco products. Those were included in a package of six strategies WHO unveiled last year, but less than 10 percent of the world's population is covered by any single measure.”

As an Chicago attorney who specializes in personal injury cases, and who has seen many tobacco related cases, I fully support the WHO in their mission to tackle tobacco problems world-wide. As Doublas Bettcher, director of WHO’s Tobacco-Free Initiative, said, "People need more than to be told that tobacco is bad for human health…they need their governments to implement the WHO Framework Convention."

Mark Stephan, a client of Hurley McKenna & Mertz, fractured his neck when the wheel on his bicycle came off unexpectedly on a Chicago area roadway. Since then he has inspired our firm and the world with his relentless drive to teach himself to walk again. Mark Stephan embodies the American spirit. He simply will never quit. We are proud to work for this man.

Check out Mark Stephan's inspiring story as told by Mike Leonard on the Today Show.

If you have been following Hurley McKenna & Mertz client Mark Stephan's courageous fight to learn to walk again then you should look at this video of Mark leaving the Rehabilitation Institute of Chicago. Although his neck was broken in several places and his limbs were not responding, as soon as Mark was able to speak again after coming out of a coma he said he would walk out of the Rehabilitation Institute of Chicago some day. Well that day came on December 22, 2007. True to his word Mark walked out of the RIC.

As a Chicago attorney who has tried elderly care cases, I am thrilled to see this new wandering device for Alzheimer’s patients. One of the scariest issues surrounding the degenerative disease is the propensity to wander and become confused with their surroundings. Since, more than 5 million Americans are estimated to be living with Alzheimer's, the new technology has the potential to allow many family members to worry less about their elderly loved ones (AP for Findlaw, 11/17, Neergaard). As many as have of the 5 million figure have very early stages of the disease and have many independent years ahead of them before the disease runs it course and becomes too severe for adequate cognitive function. For patients in this situation, the technology may have its greatest impact.

At some point, however, the majority of Alzheimer's patients will begin what is called wandering, at which point more intense supervision is required to ensure their safety. This is when many families decide a loved one should make the move to a 24 hour care facility.

A growing number of states are adopting "Silver Alerts" programs, modeled off the Amber Alert for missing Children, that notify the public when an Alzheimer's patient or other cognitively impaired adult wanders off. While this is useful in severe situations, many families want a more personalized solution.

So, the new Comfort Zone program goes a step further, “with a Web-based mapping service that works with multiple brands of tracking transmitters. First out are a pocket-size transmitter and a car version, while a harder-to-remove wristwatch style and one secreted in shoes are being explored. Families can check where Dad is at any given time, or in an emergency track his movements every 2 minutes while someone heads him off.” This technology has the potential to help many families feel good about elderly loved ones and may even keep some Alzheimer’s patients at home and under family care longer.

The several hundred page Healthcare Bill that the House recently passed considered, and ultimately did not include, a piece of right-wing consolation in the form of caps on damages in medical malpractice cases. As a lawyer who has dedicated his professional career to helping those harmed by medical negligence, I feel strongly that the proposed solution does not address the root of the problem – the hundreds of thousands of people who are adversely affected each year as a result of medical negligence. Rather, restricting the legal rights of injured patient’s only gives physicians less incentive to avoid negligently injuring other patients.

Joanna Doroshow discusses the medical malpractice component of the health care bill in her recent article, stating, “to proponents of legislation like this, dealing with malpractice is never actually about solving the problem of malpractice. Medical negligence kills at least a hundred thousand people every year and injures ten times more, costing the economy tens of billions of dollars annually. What they mean is weakening the legal rights of patients, lessening the accountability of incompetent doctors and unsafe hospitals, and giving more money to the insurance industry” (Huffington Post).

The bill functions to protect “medical and insurance companies [by] preventing juries from awarding [the injured] too much money for malpractice.” However, those who think this will fix the problem of rising health care costs will soon be eating their words, as reduction in medical malpractice damages “will cap those malpractice costs… which the Congressional Budget Office just found out contribute to the rising cost of care to the tune of merely one-half of one percent." On the contrary, other studies have shown that the costs of health care can be attributed, at least in large part, to the insurance companies who are protected by this very bill. Insurance companies advocate for damage capping legislation with little or no intent to proportionately decrease medical malpractice insurance premiums that they charge to doctors.

Elisabeth Leamy reports for abcnews (11/10) about the controversy surrounding the aftermath of the Maclaren recall of umbrella strollers following reports of finger amputations, which lead the Consumer Product Safety Commission to review similar umbrella strollers manufactured by different companies. The issue with the Maclaren umbrella stroller, which they invented over 40 years ago, involves an elbow hinge in which small children have caught their fingers, and CPSC found many other umbrella strollers to have the same issue.

Maclaren's recall, announced last week, “includes every umbrella stroller the company has sold over the past decade [even though] the company says its strollers meet all federal safety standards and it's because of a commitment to safety that it took this step to get the word out.” Maclaren is now offering free hinge covers and instructional videos, which are accessible through their website.

Currently, the CPSC is looking into the potential need for further recalls including other brands, but as a products liability attorney, I advise all parents to be aware of the issues surrounding umbrella strollers and consider using other stroller designs until the safety investigations have concluded.

Sam Hananel reports, “The Occupational Safety and Health Administration is issuing a record $87 million fine against oil giant BP for failing to correct safety hazards after a 2005 explosion killed 15 people at its Texas City refinery” (AP for FindLaw, 11/1).
The fine, which is the largest in the history of OSHA, is the result of a several month investigation that revealed hundreds of violations of a 2005 agreement to address and repair hazards at the oil refinery.

Although a BP spokesman says the company believed it was in “full compliance” with the settlement agreement, OSHA rebuts that BP will now face “hundreds of new violations for failing to follow industry controls on pressure relief safety systems and other precautions.”

As a Chicago lawyer who dedicates his career to helping average Americans obtain just compensation, I am pleased to see that the OSHA is holding large companies responsible for breaching of settlement agreements. Violating industry controls is an irresponsible way to conduct business for which companies must be held liable.

Important new research has linked posttraumatic stress disorder to “implicated ills of the body…suggesting it may be associated with death after surgery” (CNN, E. Landau, 10/24). The study shows “that veterans with PTSD were more likely to die within a year after surgery than those without the disease, regardless of how many years have passed since their service,” and is the first to study the mortality rates of PTSD patients after surgery.

Approximately 6.8% of Americans have PTSD at some point during their lives, and considering the quantity of PTSD patients stands to increase over the next few decades, the implications of the new research hold critical weight. Physicians should “treat PTSD not only as a mental condition, but also as an independent risk factors for other health problems.” As a Chicago attorney who specializes in both personal injury and medical negligence cases, I am pleased that this research is being circulated in the medical community so physicians can consider these new important factors.