Chicago Injury Lawyer Blog

Declaring that a competitor's insurance policies violate Illinois public policy, State Farm Mutual Automobile Insurance Co. is crusading against ''step-down'' provisions.
Step-downs contained in auto policies peddled by Illinois Farmers Insurance Co. reduce — to the statutory minimum — the amount of liability insurance for certain ''permissive'' drivers.

Auto policies usually provide the same level of financial protection for named insureds and permissive drivers. So, when an owner has a policy providing $250,000 in liability protection, a friend or neighbor who is driving the vehicle with the owner's permission would also have $250,000 in coverage.

Spotting an opportunity to reduce its financial exposure in a way that most policyholders probably do not notice, Illinois Farmers uses step-down provisions.

When an accident is allegedly caused by a permissive driver who is not a relative of the named insured, or a resident of the name insured's household, Illinois Farmers policies provide only the minimum amount of liability protection required by the Illinois Safety and Family Financial Responsibility Law.

This means that even if an Illinois Farmers policy provides $100,000 in liability protection for a named insured, a friend of the owner would have coverage of only $20,000 per person, $40,000 per occurrence and $15,000 for property damage.

"A birth control patch has triggered a major legal migraine for Johnson & Johnson, which has been hit with a slew of lawsuits over its patented contraceptive device. As many as 500 suits have been filed over the Ortho Evra patch in the last two years, claiming it has caused clots, strokes and in several cases, death, according to court records and plaintiffs' lawyers."

Tresa Baldas, National Law Journal, 12/18/06
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1166177119102

Federal health officials yesterday proposed sterner warning labels for acetaminophen, aspirin and ibuprofen, again cautioning millions of Americans who take the nonprescription pain relievers regularly of potentially serious side effects."

Andrew Bridges, Associated Press, Washington Post, 12/19/06
http://www.washingtonpost.com/wp-dyn/content/article/2006/12/19/AR2006121901327.html

The Illinois Appellate Court has reversed a trial court ruling in a medical malpractice case involving apparent agency. Even though the patient and his wife signed consent forms stating that the doctors were not employees of the hospital the court held that summary judgment was not properly granted on the issue of apparent agency.

The plaintiff also argued that the evidence established a genuine issue of material fact that the defendant physicians were the apparent agents of the hospital. She argued that the consent form which she and the decedent signed was ''extremely confusing'' and ambiguous because it did not state clearly that the doctors who would be caring for the decedent were not hospital employees or agents and it could have been reasonably interpreted to mean that his personal physicians were employed by Northwest but the other unidentified physicians were not.

"As Dorris Edwards slowed for traffic near Kingdom City, Mo., on her way home from a Thanksgiving trip in 2004, an 18-wheeler slammed into her Jeep Cherokee. The truck crushed the sport-utility vehicle and shoved it down an embankment off Interstate 70. Ms. Edwards, 62, was killed. The truck driver accepted blame for the accident, and Ms. Edwards's family filed a lawsuit against the driver and the trucking company. In the course of pursuing its case, the family broached a larger issue: whether the Bush administration's decision to reject tighter industry regulation and instead reduce what officials viewed as cumbersome rules permitted a poorly trained trucker to stay behind the wheel, alone, instead of resting after a long day of driving. After intense lobbying by the politically powerful trucking industry, regulators a year earlier had rejected proposals to tighten drivers' hours and instead did the opposite, relaxing the rules on how long truckers could be on the road. That allowed the driver who hit Ms. Edwards to work in the cab nearly 12 hours, 8 of them driving nonstop, which he later acknowledged had tired him. Government officials had also turned down repeated requests from insurers and safety groups for more rigorous training for new drivers. The driver in the fatal accident was a rookie on his first cross-country trip; his instructor, a 22-year-old with just a year of trucking experience, had been sleeping in a berth behind the cab much of the way."

Stephen Labaton, New York Times, 12/3/06
http://www.nytimes.com/2006/12/03/washington/03trucks.html

As a Chicago medical malpractice lawyer I estimate that 40% of my cases are related to care given by hospital residents. Most of us know from experience and common sense that people that are tired make more mistakes. The aviation industry has long had rules in place to limit the amount of flying a pilot can do without sufficient sleep. By law truck drivers must get off the road after a certain number of hours driving. But for some reason hospitals continue to make residents work as much as 30 hours without a break. A new study sheds light on the deadly consequences of this practice:

"Medical residents are routinely scheduled to work shifts that last 24 hours or more, yet a study out today suggests that these sleep-deprived doctors are at high risk of making medical mistakes that can harm or even kill patients. 'Working for more than 24 hours is hazardous,' says sleep researcher Charles Czeisler at the Harvard Medical School. Scores of studies show that people who stay awake for 18 hours straight can have trouble thinking clearly and can zone out or nod off suddenly. In July 2003, the Accreditation Council for Graduate Medical Education, a Chicago group that accredits medical residency programs, limited work schedules to no more than 80 hours in a week. But the rules still allow marathon shifts that last up to 30 hours."

Kathleen Fackelmann, USA Today, 12/11/06
http://www.usatoday.com/news/health/2006-12-11-sleep-study_x.htm

Pamela A. MacLean of the National Law Journal reports that courts in Illinois, New Jersey and New York are giving more credence to the concept of collective scienter, or guilty knowledge by any corporate employee, in securities fraud cases. Plaintiffs benefit from this trend because they do not need to prove fraudulent intent by a particular executive. It is far easier for a plaintiff to prove knowledge than it is for that same plaintiff to prove intent.

This trend, to make corporations more responsible and more accountable, is especially encouraging in light of recent corporate scandals including Enron and World Com. Hurley McKenna & Mertz is dedicated to protecting the rights of individuals and to placing people before profit.

The U.S. Consumer Product Safety Commission reports that an Illinois Company is recalling approximately 51,600 necklaces because they are made with high levels of lead. The necklaces are sold under the name Children’s Mood Necklaces and Diva Necklaces. Consumers are warned to stop using the necklaces immediately. See the warning for a full description of the products, including photographs.

Lead is a highly toxic material that can cause brain damage, especially in children. Anyone injured by these products should contact an attorney to determine whether they should bring lead poising cases or product liability cases against the makers of these dangerous products.

Desiree Hunter of the Associated Press reports that the Toyota involved in the crash that killed four Huntsville Alabama students may have experienced a steering malfunction. In our last blog, we wondered whether this was the case.

Hunter reports:

Gary Van Etten, the investigator in charge for the National Transportation Safety Board, said the 1990 Toyota Celica that hit the bus taking Lee High school students to technical school classes may have had “a mechanical problem.”

“He told us that he was experiencing a difficulty in steering his vehicle and as he continued with this difficulty, it got progressively worse until he felt he lost control of the vehicle,” Van Etten said.

This is a tragic case that will likely play out in the courts. Product liability cases against the manufacturer of the car and against the manufacturer of the steering system seem likely.

Medical malpractice lawyers in Chicago and across the country have been fighting special interest groups in Illinois and throughout the United States that want to replace our jury system with a panel of supposed experts to decide medical malpractice cases. Now after 63 years the Japanese are realizing the importance of the system which has made this the greatest democracy the world has ever known. Robert E. Precht of the New York Times writes:

"Japan is about to embark on a democratic experiment with important consequences for the rest of Asia. After a lapse of 60 years, the country is planning to bring back a jury system - but a huge effort will be required to convince ordinary Japanese about its advantages. Americans can help by sharing their jury experiences with the Japanese. Beginning in 2009, Japan will institute a jury system called saiban-in. Juries consisting of three law-trained judges and six citizens chosen by lottery will decide criminal cases by majority vote. Japan had an American-style jury system for 15 years, but it was abolished by Japan's military government in 1943. Since then, verdicts have been decided by three-judge panels, leaving citizens with no voice in a system in which virtually all criminal trials end in a conviction. The return to citizen participation represents a bold commitment to have ordinary Japanese take greater responsibility in running the country. If a jury is sufficiently unhappy with the government's case or the government's conduct, it can simply refuse to convict. This possibility puts powerful pressure on the state to behave properly and ultimately leads to better governance. For this reason, a jury is one of the most important protections of a democracy."

Robert E. Precht, New York Times, 12/1/06
http://www.nytimes.com/2006/12/01/opinion/01precht.html

As a medical malpractice lawyer I have unfortunately seen my share of cases where health care providers failed to adequately intervene on behalf of a suicidal patient. Now there is evidence that medications may be playing a role in the suicides of young adults on antidepressant medications. Benedict Carey of the New York Times reports:

"In a long-awaited analysis, health officials reported yesterday that antidepressant medications appeared to increase significantly the risk of suicide attempts and related behaviors in adults under 25, while reducing such risks in older people. The analysis, the most comprehensive and rigorous to date, found that suicidal behavior of any kind was rare, and that people taking the medications were no more likely to kill themselves than those taking placebo pills. But adults under 25 taking the drugs were more than twice as likely as those on placebos to report a suicide attempt, or to prepare for one by, say, writing a suicide note. The report, which included more than a dozen medications, was compiled by the Food and Drug Administration and posted on its Web site."

Benedict Carey, New York Times, 12/6/06
http://www.nytimes.com/2006/12/06/health/06drug.html?_r=1&oref=s

When larger numbers of people in a clinical trial died on a drug for high colesteral than people not in the trial Pfizer stopped the trial.

"The news came to Pfizer's chief scientist, Dr. John L. LaMattina, as he was showering at 7 a.m. Saturday: the company's most promising experimental drug, intended to treat heart disease, actually caused an increase in deaths and heart problems. Eighty-two people had died so far in a clinical trial, versus 51 people in the same trial who had not taken it. Within hours, Pfizer, the world's largest drug maker, told more than 100 trial investigators to stop giving patients the drug, called torcetrapib. Shortly after 9 p.m. Saturday, Pfizer announced that it had pulled the plug on the medicine entirely, turning the company's nearly $1 billion investment in it into a total loss. The abrupt decision to discontinue torcetrapib was a shocking disappointment for Pfizer and for people who suffer from heart disease. The drug, which has been in development since the early 1990s, raises so-called good cholesterol, and cardiologists had hoped it would reduce the buildup of plaques in blood vessels that can cause heart attacks. Just last Thursday, Pfizer's chief executive, Jeffrey B. Kindler, said publicly that the drug could be among the most important new developments for heart disease in decades and that the company hoped to get Food and Drug Administration approval for it in 2007."

Alex Berenson, New York Times, 12/4/06
http://www.nytimes.com/2006/12/04/health/04pfizer.html?_r=1&ref=todayspaper&oref=slogin

As a medical malpractice lawyer I have handled a large number of suits involving defective medications and medical devices. A recent jury verdict in Pennsylvania highlights the tragic consequences of poorly labeled drugs.

"When Dunson, 1, developed cold symptoms, his parents gave him Infants' Tylenol over a three-day period. During that time, he began vomiting and grew listless. When his parents took him to the family physician on the third day, he was lethargic, dehydrated, and in acute distress. He died shortly thereafter. An autopsy concluded the cause was liver damage due to acetaminophen toxicity. Dunson is survived by his parents and four minor siblings. Dunson's parents, on behalf of their son's estate, sued the manufacturer of the drug in strict liability, alleging the drug was defective in that its label failed to warn of the risks of liver damage and death from acetaminophen and failed to warn that the product is three times more concentrated than Children's Tylenol."

Dunson v. McNeil-PPC, Inc., Pa., Phila. Co. Com. Pleas, No. 040302907, July 24, 2006.
ATLA Products Liability Reporter, December 2006
http://www.atla.org/Publications/PLlawreporter/2006_12/0612dru_inad.aspx

In Champaign County, Illinois, a teenager struck and killed a Michigan teen that was standing in the middle of U.S. Highway 136, two miles east of Rantoul, Illinois. The incident occurred at approximately 6:30 p.m. on Monday evening. Illinois State Police said no tickets were issued. According to the Champaign News-Gazette, the Champaign County Coroner would perform an autopsy on the Michigan teen which would include toxicology tests.

Under the Illinois Vehicle Code, 735 ILCS 5/11-1003.1, “every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian, or any person operating a bicycle . . . and shall exercise proper precaution upon observing any child or other obviously confused, incapacitated, or intoxicated person." Violation of the statute can lead to a traffic citation, as occurred above, and can also serve as a basis for civil liability in a suit for negligence. Illinois courts require specific evidence that a pedestrian is "obviously confused or incapacitated." See Matelis v. City of Chicago, 112 Ill.App.3d 683 (1st Dist. 1983). Once that evidence is found however, such as through autopsy evidence that the pedestrian is drunk or high on drugs, an extraordinary duty is placed on the vehicle driver to avoid the pedestrian.

In a Sunday Chicago Tribune article by Stephen Franklin and Darnell Little, the authors connect truck driver fatigue to the increased risk of serious highway accidents.

1. More than 5,000 people die and 116,000 are injured yearly in truck-related accidents, according to the Federal Motor Carrier Safety Administration.

2. Truckers do not escape being victims; 930 were killed in the U.S. while working last year, up 33 percent from 1992. And while they made up only 2 percent of the workforce last year they accounted for more than 16 percent of fatal workplace injuries.

3. The Federal Motor Carrier Safety Administration has acted to protect the interests of the trucking industry. In 2003 FMCSA issued a rule that actually expanded truckers' allowable daily driving time to 11 hours from 10, which helps corporate trucking firms cut costs, but leads to more truck driver fatigue.

4. Since 1980, when the federal government deregulated the trucking industry, the rate of union membership among truckers has fallen from 90% to 10%. These non-union, low paid and inexperienced truck drivers must driver longer hours for less pay, leading to increased risk of trucking-related highway collisions.

Thus, the trucking industry, and profit-minded trucking corporations, bear legal responsibility when they push their drivers to take risks and to become fatigued, leading to fatalities on our highways.

The auto industry seems to have an agenda of withholding auto safety information from the public. As noted recently by columnist Cindy Skrzycki in the Washington Post:

"For almost three years, the major automakers have shipped voluminous data to U.S. traffic-safety regulators: Eight million consumer complaints, 138 million warranty claims and 5 million field reports on product malfunctions. It's part of an 'early warning reporting' program Congress set up to prevent a repeat of the Firestone tire-failure scandal. General Motors, Ford, Chrysler and some German and Japanese manufacturers have argued that this information should be kept strictly confidential. And officials at the National Highway Traffic Safety Administration have agreed, despite protests and court challenges from public safety groups. Late last month, the highway-safety administration proposed the latest in a string of rules over the confidentiality of those millions of documents. It did so on the orders of a federal judge, who accused the agency earlier this year of pulling a 'switcheroo' by deleting from an earlier draft a presumption that the data would be available to the public."