Chicago Injury Lawyer Blog

The impact that drug and medical device companies may have on physician treatment decisions is a cause for concern. Creating incentives for physicians to use a certain company’s devices or drugs may jeopardize patient care. As a medical malpractice lawyer in Chicago, I support the University of Wisconsin policy that requires physicians to divulge outside income.

John Fauber reported for the Milwaukee Journal Sentinel (6/20), "At least 11 doctors with the University of Wisconsin School of Medicine and Public Health received more than $50,000 from drug or medical device companies last year, including seven who pulled in six-figure amounts." As a result, the university is requiring "doctors for the first time...to specify how much outside income they receive." According to "the disclosure forms...orthopedic surgeons, who command some of the highest salaries among university and state employees, also got some of the biggest outside income checks, mostly from companies that make medical devices."

Some of these surgeons "were among the most vocal opponents to the university's new disclosure requirements, referring to the more stringent disclosure requirements as voyeuristic." Meanwhile, "critics of these arrangements say they increase the cost of medicine, potentially compromise patient care, and damage the integrity of medical research." Physicians who work "for drug and device companies" have "come under scrutiny in recent years, including congressional investigations, medical journal articles and the media."

The USA Today (6/22, Szabo) reports, "There's a growing debate about the safety of the recycled rubber chips used to cushion falls on many children's playgrounds." The Environmental Protection Agency (EPA) has approved rubber play surfaces since 1991, both to protect children from head injuries and to prevent tires from ending up in landfills. However, EPA officials now "say they can't vouch for the safety of recycled rubber, which can be contaminated with lead and other toxins, according to internal documents released under the Freedom of Information Act.

New York and New Jersey "last year closed half a dozen [synthetic playing] fields because of high lead levels. The EPA is conducting a pilot study to decide whether to launch a larger, more comprehensive study of the risks," spokesman Dale Kemery says.

Despite the risks, rubber chips present real advantages. A 1997 Lancet study found that playgrounds with rubber surfaces had the lowest rate of injury, with half the risk of bark mulch and a fifth the risk of concrete. Playground injuries cause 200,000 emergency room visits and about fifteen deaths each year.

As a Chicago personal injury lawyer, I support further testing of the recycled rubber chips and the evaluation of other safe alternatives. If the chips are truly harmful, then the decreased risk is not worth exposing children to harmful chemicals.

The Loyola Elder Law Initiative Presents the 2009 Hurley, McKenna & Mertz Lecture Series Event: Tips and Trends in Long-Term Care. Hurley, McKenna & Mertz, P.C. is a partnership of trial lawyers in Chicago dedicated to the representation of persons whose lives have been destroyed by the negligence of others. The firm's practice includes representation of nursing home residents and their families in cases of abuse, neglect, and fraud.

Eric M. Carlson, J.D. the Director of the Long-Term Care Project of the National Senior Citizens Law Center (NSCLC) will present on July 16, 2009. The Lecture will be held at the Loyola University Chicago School of Law located at 25 East Pearson Street in room 1103 at 6:00 p.m. The lecture is free and is open to the public; a reception will follow.

Mr. Carlson advises attorneys all across the country on long-term care issues. He co-counsels litigation on the behalf of long-term care residents, and is the author of numerous publications including Long-Term Care Advocacy and Long-Term Care Law Reporter.

Long-Term care is an important topic because it is relatively unfamiliar territory for many attorneys. Many are not aware of significant inconsistencies that often exist between a facility’s current policies and their legal obligations. In the lecture, Mr. Carlson will enlighten the audience as to the common problems with long-term care and will provide practical tips for advocating on residents’ behalf. Noteworthy trends in the provision of long-term care will also be a relevant topic for those in attendance and will be discussed with a critical eye towards both opportunities and potential pitfalls.

The New York Times /AP (6/21, A18) reported, "Rail cars containing thousands of gallons of ethanol exploded when a Canadian National Railway freight train derailed on Friday night, killing one person and resulting in the evacuation of hundreds of nearby homes." The accident occurred in Rockford, Illinois, a town about 80 miles northwest of Chicago. The Rockford Fire Department determined that 74 of the 114 train cars contained ethanol. Five cars were still burning on Saturday morning and fire fighters were waiting for the “very dangerous inferno to burn out by itself.”

The Winnebago County coroner, "Sue Fiduccia, said on Saturday that the person who was killed was a woman who had been waiting in a car for the train to pass through a crossing." Chief Derek Bergsten of the Rockford Fire Department "said that three people ran from the [same] car when it was bombarded with flying railroad ties and that they were severely burned by flaming ethanol." Currently, the cause of the derailment is undetermined, and a National Transportation Safety Board spokesman said the investigation could take a year.

This tragedy illustrates the need for increased railroad safety measures. As a personal injury lawyer in Chicago, I am an advocate of heightened safety requirements.

The National Highway Traffic Safety Administration has issued 43 vehicle recalls this month for defects that pose safety hazards. Manufacturers are required to correct the defects at no cost to consumers (New York Times, 6/19). Recalls involve brands including but not limited to Kia, Hyundai, Volvo, Ducati and Harley.

Some of the recalls are limited to certain regions or geographies. For example, the Kia and Hyundai recalls are limited to regions that have harsh winter climates and heavy road salting during the winter months. Illinois is one of the states included in the regional recall. Kia said, “the rusting front subframe could cause alignment problems and, in the worst case, the subframe could separate, possibly causing a crash.”

The Volvo recalls are due to a “software programming error” that may cause the radiator fan to stop working, which may cause the vehicle to overheat very quickly.

As a personal injury lawyer, I encourage all to pay attention to vehicle recalls and make the necessary appointments to avoid injury.

As a Chicago medical malpractice lawyer, I support restrictions on the hours that residents can work. Resident doctors need to be well rested in order to learn and adequately perform complicated surgical procedures, and consequences of overworking residents could be fatal for patients.

Liz Kowalczyk (6/23, The Boston Globe) reports, "Junior surgeons at Massachusetts General Hospital have been working too many hours, in violation of patient safety rules, according to a national accrediting organization that is threatening to put the hospital's surgery training program on probation."

The Accreditation Council for Graduate Medical Education "cited the hospital because a significant number of its surgeons in training, known as residents, were exceeding hour limits and working seven days straight. The organization believes these workloads contribute to fatigue-related mistakes, and has given the hospital until August 15 to fix the problem." The Institute of Medicine, which advises the U.S. government on health policy, "is pushing the council to limit residents' hours even further. It recently recommended that nap time be mandated for residents who work 30-hour overnight shifts."

The most difficult transition has been changing the “resident culture,” as residents do not like the hour restrictions because they feel as though it does not allow them to spend adequate time with patients and forces them to hand off their patients to other doctors mid procedure. However, a well rested physician is less likely to make an error due to fatigue than a physician who has been on call for 30 hours. Avoiding injuries is surely worth any inconveniences caused by the restrictions.

At Hurley, McKenna, & Mertz, we have argued many cases of institutional negligence. Institutional negligence occurs when a hospital, nursing home, “surgicenter” or other health care facility violates its independent duty to act reasonably in providing care to patients, and in supervising the provision of that care in the facility, resulting in injury to a patient. Over forty years ago the Illinois Supreme Court recognized that a hospital has a duty to use reasonable care in the administration and management of the institution. Courts in other states have followed suit and held hospitals around the United States to the same standard. As medical malpractice lawyers, we find the following case unacceptable.

The New York Times (6/21, A1, Bogdanich) reports on the Philadelphia VA hospital, where "a rogue cancer unit...that operated with virtually no outside scrutiny...botched 92 of 116 cancer treatments over a span of more than six years -- and then kept quiet about it."

Dr. Gary D. Kao was responsible for all but a handful of the treatment mistakes. In treating Prostate cancer, small radioactive stones can be inserted into the body and placed near the prostate. In several instances, Dr. Kao was severely inaccurate with his placement of the stones. In one case, most of the 40 stones inserted ended up in the patient’s gall bladder. Dr. Kao then rewrote his surgical plan to cover up his mistake with permission from the institutional regulators. The patients were not informed of the mistakes in their treatment for several years until federal investigators uncovered the mistakes.

Negligence occurred not only on the part of the physician, but also on the part of the institution for knowingly allowing surgical revisions. Furthermore, “peer review, a staple of every good hospital, in which colleague’s examine one another’s work, did not exist in the unit.” Overall, the implant program lacked a “safety culture,” and the nuclear commission found that Dr. Kao and other members of his team were not properly supervised or trained.

The Denver Post (6/22) editorializes, "A U.S. Supreme Court decision last week made it significantly more difficult - too difficult, we think - for older workers to prove age discrimination claims." The decision, "which came on a 5-4 vote, means workers have to prove their age was the key reason for the employment decision in question, regardless of whether there is at least some evidence that age was a motivating factor."

The practical impact of the decision "will be to create an unfair distinction between age discrimination cases and other types of discrimination cases based on gender, race and ethnicity." The Post argues, "The remedy for this situation is for Congress to amend the Age Discrimination in Employment Act so the burden of proof mirrors that in Title VII of the Civil Rights Act, under which other discrimination cases are brought."

As a personal injury lawyer who has seen many employment discrimination cases in the Chicago area, I am concerned that the new Supreme Court Ruling makes it too difficult to prove age discrimination and will leave many worthy victims uncompensated.

As an anti-tobacco advocate and a personal injury lawyer who has seen many smoking-related injuries, I am thrilled by the President’s signing of the tobacco bill into law.

The historic measure gives the Food and Drug Administration unprecedented power to regulate tobacco, including the marketing and distribution of tobacco products. CBS Evening News (6/22, story 5, 0:30, Couric) reported the President signed the "landmark legislation today, saying it will save lives" and that “as someone who started smoking as a teenager, he knows how hard it is to quit."

The Los Angeles Times (6/23, Parsons) reports, "Obama declared that his signature on the bill represented a significant defeat for tobacco companies that tried to hook young customers." President Obama said yesterday, "Their campaign has finally failed. Today, change has come."

Although media coverage of the signing focused largely on the President’s unclear personal use of cigarettes, what is important is that the bill has been signed in to law, and that tobacco companies no longer have the ability to inaccurately promote their products. When asked if the President “practices what he preaches,” White House press secretary Robert Gibbs was shown saying: "I don't honestly see the need to get a whole lot more specific than the fact that it's a continuing struggle." Regardless of the President’s personal afflictions with smoking, he has acted rightfully within his capacity as President by signing the bill into law.

The New York Times (6/16) reports “a medical device maker, Synthes Inc., and four of its executives were indicted Tuesday on federal charges that they improperly promoted a bone filler for purposes not approved by the Food and Drug Administration including encouraging its use in what prosecutors called ‘unauthorized’ human trials.”

The Indictment was sought by the United States attorney in Philadelphia and is one of the strongest actions against medical drug and device makers in years. Michael L. Levy, the United States attorney said, “they put their profits ahead of responsible business practices and the truth.”

In 2002, the FDA approved the bone filler only for general bone repair but regulators “insisted that Synthes not promote its use for spinal procedures.” Charges in the indictment allege that Synthes company officials went behind the FDA’s back and approached selected operators to perform unapproved operations with the understandings that “the company would help them publish their clinical results.”

Cautionary findings, including possible severe blood clotting caused by the use of the bone filler were not taken seriously by executives. The company was further accused of running unauthorized human trials of the bone filler in spinal procedures, which may have lead to three deaths. These deaths were not reported to the FDA.

Improper business relationships between doctors and medical device makers are a cause for concern. If a doctor has the incentive to use one device over another, then patients cannot be certain that they are receiving the best quality care. Incentives drive human behaviors, and as a Chicago medical malpractice lawyer, I feel strongly that such incentives should not influence the doctor-patient relationship.

Mercedes-Benz is known for pioneering advanced safety technologies (New York Times, 6/18). This week, the automaker introduced a concept car built to illustrate some ideas to protect drivers and pedestrians.

The concept car, the ESF 2009, was unveiled at the Enhanced Safety of Vehicles Conference in Stuttgart, Germany. The car includes 13 safety innovations, some of which are improvements on current features, and others that are new inventions.

For example, “the Belt Bag, a combination seat belt and air bag, is a good example of something we may see in the not-too-distant future. It’s a seat belt with two layers, and when crash sensors detect a serious impact, a generator at the belt armature inflates the seat belt.” The “Child Cam” is another fairly simple technology that allows the driver to monitor passengers in the back seat by placing a small camera on the roof lining between the front and back seats. A series of still frame images then appear on the dashboard.

The company has previously produced 35 Enhanced Safety Feature (ESF) vehicles. Past vehicles have included technologies such as antilock breaks, seat belt tensioners, airbags, and side impact protection, which have eventually appeared on the market. As a Chicago personal injury lawyer, I find new automobile safety features to be exciting news.

Ken Thompson began to question airbag safety after he suffered a partial amputation of his right thumb after minor impact (New York Times, 6/17). This was the only injury he sustained in the very minor collision as both cars were able to drive away from the accident virtually undamaged. Doctors were able to reattach his thumb and restore much of its functionality. However, Thompson plans to file a personal injury lawsuit against BMW, the manufacturer of the vehicle, alleging that his injury was caused because the horn was placed in the center of the steering wheel, and he was honking the horn at the time of impact.

Horns could be placed on the spokes of the steering wheel, and there does seem to be an inconsistency between automobile manufacturing and the National Highway Traffic Safety Administration’s warning, “air bags deploy very rapidly and very close or direct contact with a deploying air bag can cause serious or even fatal injury.”

One BMW spokesman said, “Our experience has shown that the most effective position of the horn button is in the center of the steering wheel. In a surprise driving situation, the driver has the best chance of activating the horn if a large portion of the center of the steering wheel will activate the horn.” However, in an automobile accident, drivers with their hands on the horn and very close to the airbag are at increased risk for hand and arm injuries.

“No system is perfect, but the combination of seat belts, air bags and crumble zones are remarkably safe,” wrote James M. Williams, an emergency-room doctor from San Antonio. “Given the high-speed accidents that occur, it is amazing to see what people walk away from.” In serious accidents, airbags are clearly essential, but overly sensitive airbags that deploy in very minor collisions, such as the personal injury case at hand, warrant further research as to the safest location for both horns and airbags to save lives while avoiding injuries.

Court secrecy is a dangerous practice that prevents people from finding out about unsafe products. As a personal injury lawyer in Chicago I find the practice of document sealing irresponsible. Consider the following example of such irresponsibility.

The American Association for Justice reports (6/4), “Over the past year, Bausch & Lomb has quietly settled over 600 contact solution lawsuits, with more cases still pending”. The contact solution was tied to instances of fungus infections and blinding in many patients that used the product.

As part of the settlement agreement, Bausch & Lomb forced all court documents in the case to remain sealed. This keeps vital information including internal investigations into the cause of the infections from contact users and doctors. Details of outdated company testing procedures, which are widely used by other contact solution manufacturers are also included within the sealed documents.

The Sunshine Litigation Act currently facing Congress would give judges “additional discretion to limit secrecy agreements that keep hidden important and life saving information from the public” and would “close the loophole in our courts” to ensure that such information is disclosed.

NPR (6/9, Goodwyn) reported that "Jamie Leigh Jones was a...Halliburton employee in 2005 when she was sent to work in Iraq." She was drugged, beaten and raped shortly after her arrival. "It has been four years since the attack, and despite the physical and circumstantial evidence, the Department of Justice has declined to investigate." She is now fighting for the right to have her case heard in court instead of arbitration.

Arbitration has "become a dominant feature in the legal relationship between American corporations, their employees, and their customers." The Arbitration Fairness Act “now before Congress would ban clauses that make arbitration mandatory for the resolution of disputes - restoring to consumers and employees the choice of taking their case to court."

At Hurley McKenna & Mertz, we believe in the right to a trial by jury, and oppose mandatory arbitration and anything else that interferes with that right. Congress should ban mandatory arbitration and allow people to chose to take their case to court or to arbitration, as the right to trial by jury is a pillar that is essential to the principle of justice in this country.

American Association for Justice President Les Weisbrod issued a statement following President Obama’s comments (6/15). Mr. Weisbrod agreed that “it’s clear America’s health care system is in crisis. Over 40 million people are without health insurance and costs are skyrocketing. President Obama is right that health care reform is needed now and patient safety should be the top priority.” As a medical malpractice lawyer I align myself with his sentiment.

What is less clear is the role that medical negligence plays in the skyrocketing costs and the health care debate. “According to the Institute of Medicine, 98,000 people die every year because of medical errors. Eliminating these errors, not further hurting the victims of negligence, is where lawmakers should focus their attention.”

Many believe that the practice of so called “defensive medicine” is the primary culprit for the high and rising health care costs. However, this assertion “is not supported by empirical data or academic literature.” Recent news reports, CBO and GAO analyses, and statements from administration officials have shown that “physicians will over-test and over-treat purely for financial reasons, unrelated to liability concerns.”

While the healthcare system is clearly in need of reform, patient saftey should not be sacrificed. Limiting the rights of victims of medical negligence would have a detrimental effect on the quality of health care. Lawmakers should seek to decrease the 98,000 deaths that occur each year as the result of medical negligence, and limiting the ability for victims to hold wrongdoers accountable will not accomplish this goal.

USA Today (6/8, Levin) reported, "In nearly every serious regional airline accident during the past 10 years, at least one of the pilots had failed tests of his or her skills multiple times, according to an analysis of federal accident records." As both a Chicago personal injury lawyer and a regular airline passenger, I find this information disconcerting.

In eight of the nine serious regional airline accidents during that past ten years, pilots had a history of failing two or more "check rides," which are tests by federal or airline inspectors of pilots' ability to fly and respond to emergencies. In the one case in which pilots didn't have multiple failures since becoming licensed, the co-pilot was fired after the non-fatal crash for falsifying his job application. Bill Voss, president of the independent Flight Safety Foundation, said, "this is a symptom of a larger problem in selection and certification."

Pilot qualifications on regional carriers was at the center of an NTSB hearing last month into the February crash of a turboprop near Buffalo that killed 50 people. The pilot in control of the Buffalo flight at the time when the plane plunged had failed five “check rides”, according to records revealed at the hearing.

The Wall Street Journal (6/10, Carey, Pasztor) reports, "Facing escalating congressional criticism, the Federal Aviation Administration said Tuesday it ordered immediate inspections of pilot-training programs at smaller carriers." As a result, "Randy Babbitt, the FAA administrator, said, his goal 'is to make sure that the entire industry-from large commercial carriers to smaller, regional operators-is meeting our safety standard.'"

As a personal injury lawyer in Chicago, I see many transportation accident cases. In order to avoid unnecessary injuries and fatalities, transportation safety measures should be reevaluated at regular intervals, especially after material information surfaces suggesting the current measures are not sufficient to ensure public safety.

The National Transportation Safety Board (NTSB) recently concluded driver fatigue and the lack of federal safety standards protecting passengers on buses contributed to the death and severity of the injuries sustained in the 2008 Utah bus rollover which killed nine and injured 43. (AAJ, Washington, DC)

“The transportation industry has been aware of these problems for years, if not decades, and they have done nothing about it. Current federal standards are needed to save lives,” said Tennessee attorney Morgan Adams. “Driver fatigue is a killer and it will continue to kill until the government takes action. There is no question some corporations will overwork employees, and ignore problems, in order to earn another dollar.”

In response, the American Association for Justice (AAJ) is calling on transportation regulators to review pending pre-Obama administration regulations and open new rulemaking proceedings to enhance commercial transportation safety measures for both trucks and buses.

The Chicago Tribune (6/10, Hawthorne) reports that Illinois Attorney General Lisa Madigan “filed a civil lawsuit Tuesday that accuses Crestwood officials of lying more than 120 times about their secret use of a [Chicago area] community well contaminated with cancer-causing chemicals."

Hurley McKenna & Mertz filed the first Crestwood case in Illinois.

The complaint "outlines a systematic coverup of Crestwood's routine use of its tainted well and provides more details about actions first publicly revealed by the Tribune in April." Crestwood officials avoided scrutiny for over twenty years by misleading the state to believe that residents were getting only Lake Michigan water.

In late 2007, when EPA inspectors tested the water for the first time since 1986, they found the well was contaminated with dichloroethylene and vinyl chloride, which is so toxic the U.S. EPA says there is no safe level of exposure. The well was finally shut down in Late 2007, after exposing citizens to its harmful contaminants for over two decades.

Moreover, records show Crestwood officials knew the well was contaminated at least as early as 1986. They also heard about the pollution in 1998, when village officials tested the well and found dichloroethylene in the water. Both times, Crestwood officials managed to cover their tracks. The continuous irresponsible and clandestine actions by Crestwood are infuriating to all.

The Wall Street Journal (6/10, Koppel) reports, "The U.S. Supreme Court's decision this week calling for judges” to recuse themselves from “cases involving big political donors confronts the growing role of money in the U.S. judicial system." The Journal adds, "Political donations to judicial candidates at the highest state courts have soared in recent years, creating concerns that money is eroding public confidence in the system."

NBC Nightly News (6/8, story 3, P. Williams) reported that the Caperton v. A.T. Massey Coal Co. "reads like it's right out of a John Grisham novel. The justices ruled today that state court judges that get big campaign contributions cannot sit in judgment of their biggest contributors”. This case, which is a particularly poignant example that favors the recent U.S. Supreme Court decision, “comes from West Virginia, where a coal company executive spent $3 million to get Judge Brent Benjamin elected to the state supreme court. He then ruled in favor of that coal company in a $50 million case."

Concluding, the Washinton Post (6/10) says, "States should consider abandoning judicial elections for a merit selection system that better insulates judges from the corrosive influences of money and politics." At Hurley McKenna & Mertz, we favor the Massey ruling requiring judges to recuse themselves when large contributors come before them.

The Deseret Morning News (6/5, Davidson) reported that Bruce R. Kaster, "an attorney who represents the families of Utah State University students killed in a grim 2005 van accident, told Congress on Thursday" that "courts allow companies to keep too many civil lawsuit documents secret that could save lives by disclosing dangerous defects in products."

An example of such a document is a memo from 2000 by Copper Tires that discusses that the tires they produce lack important safety features that are present in other brands. Copper Tires manufactured the tires involved in the 2005 accident that killed eight Utah State University students.

Currently, the House Judiciary subcommittee is “considering the Sunshine in Litigation Act, which would make it more difficult for companies to keep secret documents used in civil cases.” Each year, countless American’s are injured or killed by defective products that manufactures are aware of, but the public is not. As a product liability lawyer, I believe that companies are too easily allowed to seal important facts about defective products in court files to the detriment of public safety. I support an Act that would increase the likelihood that manufactures would be held accountable for their defective products.

A blog on the New York Times (6/6) website discusses the different points of view on the medical malpractice “crisis”. Jeremy Peters wrote, "For years…health care lobbyists have argued that the exceedingly high cost of medical malpractice insurance was a result of a runaway legal system that allowed juries to award huge judgments to victims of doctors' mistakes."

However, "a new report from an independent government watchdog group suggests that those claims are exaggerated." The study by the New York Public Interest Research Group found that "the amount of money paid for malpractice claims in New York has actually fallen in recent years, and that the number of overall claims has remained remarkably stable.” Tom Baker wrote in his book, The Medical Malpractice Myth (U. Chicago Press), that a “California study, as confirmed by more recent, better publicized studies” verifies “that the real problem is too much medical malpractice, not too much litigation.” He found that “most people do not sue, which means that victims—not doctors, hospitals, or liability insurance companies—bear the lion’s share of the costs of medical malpractice.”

Many public complaints about the medical malpractice “crisis” have been greatly exaggerated. Doctors who have not exercised due care with their patients should be liable for injuries their negligence caused. As a medical malpractice lawyer, I provide a service to those who have been injured by the negligence of medical care providers.

In 2006, the hip resurfacing procedure became available in the United States. Since that time, some physicians have aggressively promoted the procedure because it supposedly allows for better and quicker return to normal activities and should last longer than the 15-20 year life span of normal hip replacements. Thus, the procedure is best for patients who are younger and physically active, have strong bones, and are expected to live longer than the lifespan of a traditional hip replacement. (New York Times, 11/8/2008)

However, hip resurfacing is “typically more difficult to perform than replacing the total joint. In general, surgeons say, resurfacings can take longer and require bigger incisions than hip replacements.” (Wall Street Journal, 6/4) Moreover, women who receive the hip resurfacing procedure seem to be at a greater risk for failure. Researches found that “five years after surgery, 5.2% of women under 55 with a resurfacing had undergone a second, corrective operation.”

On the other hand, only “3.6% of women in that age group needed a second operation after getting a full hip replacement.” Corrective surgeries are necessary when resurfacing causes the “femoral neck – a piece of bone surgeons retain in resurfacing but replace in a full hip replacement” to fracture. Women can be at greater risk due to their generally smaller frames, and lower bone densities.

Many studies have been performed and others are currently underway. The most consistent results include the finding that the overall functional outcomes of hip resurfacings and hip replacements appear to be very similar. Only in the studies where participants get to choose the procedure do results show that those who receive hip resurfacings appear to be more active, which is likely reflective of the fact that they were more active originally.

In the United States last year, resurfacing accounted for no more than 3.5% of the 430,000 hip replacements that occurred, but the number of new resurfacing patients this year is expected to increase by 40 to 50 percent, according to the consulting firm Millennium Research Group (NYT).

When considering any surgical procedure it is important to discuss and consider all of the risks with your physician. If you have been injured because you were not informed of the risks associated with a surgical procedure, you should contact a medical malpractice lawyer to discuss your case.

CQ Today (6/2, Armstrong) reports that Senate legislation authorizing the FDA to regulate tobacco (HR 1256) "will come to the Senate floor Tuesday, after two committee chairmen persuaded Majority Leader Harry Reid (D-NV) to cancel a Tuesday cloture vote on a railroad antitrust bill (S 146) that was the only item on the calendar ahead of the tobacco bill."

The bill "would give the Food and Drug Administration (FDA) wide new powers to regulate tobacco products. It would levy user fees on tobacco products and create a new department within the FDA with the authority to regulate tobacco marketing and advertising, control the amount of nicotine in products, and bar such product claims as 'light' and 'low-tar.'" While "floor action on the bill could take up most of the week," the bill "is expected to eventually pass."

The AP (6/3, Abrams) reports that on Tuesday the Senate voted 84-11 to advance the regulatory legislation. Since only sixty votes were needed, "the success in reaching that threshold increases the likelihood that the Senate will move to a final vote by the end of the week. If the House concurs with the Senate measure, it would go to President Barack Obama, who is ready to sign it into law."

The Campaign for Tobacco Free Kids (5/21) reported “tobacco use is the number one cause of preventable death in America,” killing more than 400,000 Americans annually and costing the nation $96 billion in health care bills per annum. Every day, another “1,200 lives are lost due to tobacco consumption and over 1,000 kids become new regular smokers”.

Despite being the deadliest product sold in America, tobacco products are among the least regulated. They are “exempt from basic health regulations that apply to other consumer products,” which allows tobacco companies to employ deceptive marketing techniques to attract children to their “deadly and addictive” products, “deceive consumers about the harm their products cause, and resist changes that could make their products less harmful.” Therefore, Congress has the opportunity to protect thousands of lives by passing the regulatory legislation.

As a Chicago medical malpractice lawyer, that has represented too many lung cancer victims; I consider this legislation now working its way through the Senate welcome news.

On Monday, June 1, Governor Pat Quinn signed Senate Bill 84 (CTA Section 41 Notice Repeal) into law. SB 84 is now Public Act 96-0012. P.A. 96-0012 was sponsored by Senator Ira Silverstein and Representative Al Riley (ITLA Legislative Bulletin 6/3).

P.A. 96-0012 repeals in its entirety the notice requirement in Section 41. The one-year statute of limitations for filing suit against the CTA still applies. The repeal will only apply to causes of action that accrue on or after the effective date of June 1, 2009.

The primary issue with the previous law is adequately communicated by the Illinois Trial Lawyer Association (ITLA) President Philip Harnett Corboy, Jr. as follows: "This legislation has corrected an outdated, but nevertheless, very dangerous statute. The now-repealed CTA Notice Requirement had become an extra layer of aggravation that oftentimes trapped innocent victims of negligent behavior by the CTA. Under that statute, trial judges had no discretion but to throw out cases where claimants- or their attorneys- made otherwise innocent mistakes on the pre-suit notice. Now we can concentrate our efforts on prosecuting the claims where they should be- before a judge and jury.”

This is an excellent change in the law for victims of CTA accidents in Chicago. Under the old law, lawyers had to file a formal notice with very specific requirements with the CTA to preserve the action. Even the smallest error could result in a case being dismissed on a minor technicality. This change in the law will allow all injured victims of CTA negligence to get a full and fair hearing in court.

In a column in the Columbia Daily Tribune (6/2) J. Scott Christianson wrote that the original intent of Senate Bill 202 "was to prevent insurance companies from assigning blame to motorcycle riders involved in an accident simply because they were riding a motorcycle." Yet, "during its travels through the General Assembly, Senator Schaefer's bill was amended so that it would also repeal Missouri's law requiring all motorcycle riders to wear a helmet while on public roads; only those under 21 or riding interstate highways would still have to wear a helmet if SB 202 is signed into law." Thus, Christianson concludes that "Governor Nixon should veto SB202."

Many studies have confirmed the positive relationship between helmet use and protection from head injury. One particularly poignant study in Florida showed that motorcycle deaths rose significantly when its mandatory helmet law was repealed. One newspaper, the Florida Today, “found ‘unhelmeted’ deaths in Florida rose from 22 in 1998 and 1999, the years before the helmet law repeal, to 250 in 2004, the most recent year of available data” (CBS, 6/19/06).

This trend is not limited geographically as death rates for motorcyclists have been rising since repeals of helmet laws began in 1995, as reported by USA Today. Department of Transportation (DOT) statistics reflect that “5.6 motorcyclists per 10,000 registered motorcycles were killed in 1996, and the number jumped to 7.3 in 2006. The number of motorcyclists who wear helmets has dropped from 63% in 1994 to 51% in 2006”.

Both common sense and empirical evidence lead to the conclusion that mandatory helmet laws would diminish unnecessary motorcycle injuries and deaths. As a personal injury lawyer in Chicago with experience in motorcycle injuries, I adamantly support mandatory helmet laws.

The Las Vegas Sun (5/29) editorialized, "It is only common sense that many federal laws, those on civil rights among them, should be consistently and strictly enforced throughout the country." However, "many federal laws not covering constitutionally protected freedoms should stand only as a minimum standard."

The paper said, "regulators under Bush often wrote "preemption" language into regulations, which meant the laws would be standard across the country because they preempted any relevant state law." One famous example is California’s 2005 request to the Environmental Protection Agency “to adopt a law setting tougher automobile emissions standards than those set by federal law.” This request was denied.

Now, Obama has "directed his administration to abandon the freewheeling preemption policies of the Bush administration," including asking the EPA to reevaluate their previous decision. President Obama sent a memo to his staff stating, “heads of departments and agencies should not include preemption provisions ... except where such provisions would be justified under legal principles.” He further ordered the reviewing of any regulations written in the past decade by federal departments and agencies to search for unjustified preemptive language. Concluding, the paper said, "Obama's directive is a victory not only for states, but also for consumers."

I have been a product liability lawyer in Chicago for 25 years. I found it very interesting and disconcerting that George Bush, the head of a party that supposedly prides itself on state’s rights, would summarily and unilaterally federalize product liability law on such a massive scale. Thankfully for the citizens of Illinois, the Obama administration has reversed this unwelcome attempt to preempt state tort law.

As a Chicago personal injury lawyer I am very pleased to see that after decades of marketing their addictive cancer causing products to children, tobacco companies are feeling the pain a fully informed jury can inflict. Consider this recent verdict in Florida:

The AP (6/2) reports, "A Florida jury awarded $30 million to a Pensacola widow in a ruling against R.J. Reynolds Tobacco." This is one of the first cases to be tried since the 2006 Florida Supreme Court Ruling that “threw out a massive class-action award to thousands of smokers and required the cases be proved individually.”

Benny Martin died of lung cancer in 1995 after being a longtime smoker. He began smoking “20 years before cigarettes had warning labels.” According to attorneys for "Benny Martin... the tobacco company conspired to make its products more addictive to customers and withheld information about the dangers of smoking."

Such deceptive tactics are targeted by the new Food and Drug Administration (FDA) regulatory legislation that will, if passed, give the FDA a wide array of new powers to regulate the tobacco industry. These new powers include the ability to regulate the marketing and advertising of tobacco products.