Chicago Injury Lawyer Blog

Mercedes Iverson, 86, was recently attacked by a fellow nursing home patient, leading to her subsequent death.

The long-time Glenview resident was residing at Maryhaven Nursing and Rehabilitation Center, 1700 E. Lake Ave, when she was brutally attacked behind closed doors. Sources say that her death was caused by craniocerebral injuries from the assault, and from heart disease. The attack took place in a private room on the floor which houses patients with Alzheimer’s and dementia.

Neither Resurrection Health Care, owner of Maryhaven, nor the nursing home itself is taking responsibility for the attack. A spokesman for Resurrection calls the incident “unfortunate,” “sad,” and “tragic,” but assures reporters that Maryhaven is a safe community for its residents.

As a plaintiff’s attorney, I question the claim that a nursing home community which allows homicides to happen behind closed doors is a safe community. Failing to monitor and protect nursing home residents is negligence and may be a violation of the Nursing Home Care Act. The family of Ms. Iverson should seek answers through the civil justice system and, in doing so, help to avoid a future tragedy of this sort.

Many of us in the legal world have been talking about the recent trend in recalled medical devices. Product liability and personal injury lawyers are especially concerned with the continually failing devices, and are concerned about the government process—one that is too rash and too lax on testing—that gets these devices on to the market.

MSNBC.com features an article on a recent device failure and its current investigation. In “Risky pelvic mesh highlights worries about FDA process,” Rita Rubin investigates a device called surgical mesh, intended to counter receding organs. Rubin specifically writes about Janet Holt, a woman who was affected by the uncomfortable organ slippage. When her bladder slipped out of place, her doctor recommended a surgical mesh device to prop up her insides. Unfortunately, this device only escaladed Ms. Holt’s problems, increasing her pain, and leading to multiple surgeries in order to remove the device, which had slowly eroded into her vagina.

Although there is no evidence that pelvic mesh provides benefit, surgical mesh is not getting pulled off the market, despite the rising adverse events the products are causing: “From 2006 to 2007, the FDA received more than 1000 reports of adverse events related to the mesh in women treated for pelvic organ prolapsed or stress urinary incontinence. From 2008, when the FDA first revealed its safety concerns, to 2010, the agency received nearly 3000 more.”
These failing devices are a part of a series of unfortunate events; multiple medical devices are failing and continuing to fail without FDA action. But, all of these defective products and adverse events could be avoided. Rubin cites a study of 113 recalls from 2005 to 2009 found in the journal Archives of internal Medicine reports, “Of those [113 recalls], only 21 of the devices had been required to be tested on patients before receiving FDA approval.”

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In a June 28th letter to the editor in the Chicago Tribune, ITLA President Jerry A. Latherow responds to Lisa A. Rickard of the U.S. Chamber of Commerce who claimed in a June 17th opinion piece that Illinois citizens are abusing the legal system in order to make a profit, what she calls “jackpot justice” (Rickard 1). She claims that Illinois is a, “plaintiff’s lawyer paradise” where, “trial lawyers target solvent businesses in…lawsuits even if they have no connection to their clients” (1). She claims that these lawsuits hurt businesses who are trying to create jobs in a tough economy. Latherow clears up Rickard’s rickety rhetoric, and explains why she might be making such a claim.

He argues as such: Rickard is president of the U.S. Chamber Institute of Legal Reform. The U.S. Chamber of commerce is funded by big business interests like tobacco, oil, insurance, and pharmaceutical companies, although they hide behind a veil of local business sentiment. The reason that they demonize Illinois as a “plaintiff’s lawyer paradise” and claim that Illinois is too trial-happy is because they want to dominate the legal system, and keep citizens from successfully navigating it. These huge businesses are spending huge amounts of money to launch media campaigns that create the appearance of abuse in the legal system, to promote “tort reform,” to claim that ordinary citizens are cashing in on lawsuits with false claims of injury.

This is not the case. The real abuse, Latherow explains, is that the legal system is being manipulated for profit, but it is being manipulated by the very accusers, Ms. Rickard and the U.S. Chamber of Commerce. The Chamber funds groups whose products injure and kill victims; the Chamber attempts to pass “reformed” laws that make accountability in Illinois impossible, like limits on settlements in medical malpractice cases, or promoting mandatory arbitration rather than unbiased trial. Of the three branches of government, the courts are the one and only equalizing branch; anyone, no matter how rich or poor, can seek justice, as opposed to the executive or legislative branch which is dominated by powerful interests. The Chamber wants to erase the equalizing function of the courts. Latherow writes that the Chamber “…takes away [individuals’] constitutionally protected right to hold these negligent corporations accountable for their actions” (Latherow 1). The Chamber wants to keep big businesses with money and power dominating.

Latherow suggests that we take a stand against Rickard, and that we celebrate an Illinois court system that protects its residents when they have been injured or harmed. As a Chicago personal injury lawyer, I am proud that our courts believe in an individual’s constitutionally protected right to hold big corporations accountable for their actions. I am proud that our courts protect individuals who have been legitimately harmed.

I recently watched the new HBO documentary, Hot Coffee – a documentary that illuminates how big corporations spin media and promote “tort reform” for their own business interests and in doing so, undermine the court system. Specifically, personal injury law and personal injury lawyers become targets; our work thought to be petty, greedy, or—a popular term—“frivolous.” Of course, as a personal injury lawyer, I feel the incredible importance of this type of law; I’m reminded how of the three branches of government, the courts are the one equalizing branch. No matter how rich or poor you are, how powerful or not, anybody can seek justice through the courts. Whereas the executive and legislative branches are dominated by powerful interests, in the judicial realm, citizens can hold those powerful interests accountable for wrongdoing. Seeking justice and using the court system is a constitutional guarantee. Hot Coffee reveals how propaganda—both throughout the media, and big business and “tort reform” proponents—can really hurt that constitutional guarantee to a fair and free trial and instead works to promote big companies’ financial interests, and undermine the courts’ equalizing capacity.

The documentary is divided into four vignettes, each vignette exposing an example of how big business interests and “tort reform” advocates undermine the constitutional right to the courts. Beginning with the infamous story of the hot McDonalds coffee lawsuit, the film documents Stella Liebeck’s plight to hold a huge corporation responsible for their dangerously and unreasonably hot coffee. Media propaganda made her case look petty and “frivolous,” while in reality, the near-deathly spill of scalding coffee led the once spry and active 79 year old onto a downward spiral of health and to her subsequent death. Third degree burns required painful, expensive and dangerous skin graph surgery. Ms. Liebeck sought the courts for financial help and to raise awareness, but her case was twisted into a media-frenzy that made Ms. Liebeck a household name for all the wrong reasons. The facts of her case were exaggerated by the media, and this distortion fostered much negative sentiment surrounding personal injury law. Her case not only shows how media can affect law, but is also symbolic for the intricacies of the legal system in general; even with all the loop holes and injustices, the media distortions and the interests who seek to undermine, there is still great power that an ordinary citizen can harness through the legal system, and Ms. Liebeck used that power to change law and ensure the safety of others.

The next section focuses on how “tort reform” advocates are really hurting families who desperately need financial compensation after medical malpractice. Many states are enacting caps to actively limit the amount of money that someone can receive in a medical malpractice or personal injury case. This cap really hurt the Gurley family of Omaha, Nebraska. Colin Gurley was born with brain damage and cerebral palsy because of medical malpractice at birth. While the family was originally awarded $5.6 million, which would have been substantial for quality care for his life, because of a state-mandated cap, he could only receive $1.25 million, which will not pay for the high volume of care he will need throughout his life. This cap renders Colin forever reliant on his family, on tax payer money, and unable to sustain a happy life. Also, an unfortunate victim of “tort reform” backers, the next portion tells the story of Oliver Diaz, of the Alabama Supreme Court, who was targeted by Carl Rove and the U.S. Chamber of Commerce because he was perceived to stand in the way of “tort reform.” He was indicted and ostracized with false charges, and his judicial career was ruined. Although the court found him not guilty, he didn’t have the funds or the media power to compete with the U.S. Chamber of Commerce and their media power. Again, the financial interests of big business power undermine the equalizing power of the courts.

The film’s final vignette focuses on a woman named Jamie Leigh Jones, who was an unfortunate victim of one of the successes of tort reform. While she was working overseas for KBR/Halliburton, she was violently gang raped by the men in her barracks. Because of a mandatory arbitration clause she had signed in her contract to work for Halliburton, she accidentally waived her rights to a fair and unbiased trial. This portion documents Jamie’s extreme heroism and bravery in holding a big corporation accountable and demanding a trial to confront her attackers. She worked closely with Senator Al Franken, who was able to pass the first bill to ban mandatory tort reform in sexual assault and rape cases in the government branches.

Our court system is a privilege and necessity, and “tort reform” supporters disregard the equalizing power of the courts, and the incredible power the courts give citizens to hold their oppressors accountable for their actions. As a personal injury lawyer in Chicago, I worry about future caps on medical malpractice and personal injury cases in Illinois, and I worry what it will mean for my clients. Watching Hot Coffee only reminds me of why I do what I do, of the incredible power in the courts equalizing potential, in the undeniable right to seek justice in our country. And that ought not to be undermined.

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