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I write this Blog mostly for people who interested in law, especially injury claims. I do a radio show on legal issues Saturday at Noon. If you want to hire a lawyer, call me at 217-789-1977 or email me.

The appellate court recently held that offset language in uninsured/underinsured policies with plaintiffs injured by two defendants does not apply. Throwing out the offset language is counterintuitive to most lawyers. Lawyers are taught that you apply the language of the contract. This case reminds us that the terms of the insurance policy are applied generally, but that there are exceptions to general statements.

In Tufano the court held that the policy holder must be placed in the same position as if each tortfeasor carried the same as amount of insurance as the injury victim. Furthermore, one tortfeasor’s payment cannot be used to offset the under insurance gap of the other tortfeasor. Each instance of under insurance is viewed separately. However, the amount the plaintiff can get from each party is capped by the un-insurance/under-insurance of his or her policy.

This case is very helpful in that it discusses the prior decisions of both the appellate and supreme courts regarding uninsurance/underinsurance coverage.

The Illinois fourth District Court of Appeals decided, on July 15, 2016, in Miller vs. Sarah Bush Lincoln Health Center, that medical bills are not reduced to the amount paid by insurers in personal injury suits. This case creates a split in circuits because a different case entitled Perkey vs Portes -Jarol, from 2013 decides the opposite on virtually identical facts. In Perkey a party ask to appeal to the Supreme Court, but the Supreme Court denied leave to appeal. With this court case from the Fourth Circuit Court of Appeals there is a split in circuits, which suggests the Supreme Court will take this issue.

In Miller the jury returned a verdict in favor of the plaintiff on a medical malpractice claim. The jury awarded $638,347.91. Of that amount, $133,347.91 was represented plaintiff’s medical expenses. This defendant asked the court to enter judgment to reduce the jury’s verdict by $91,724.03. This would leave the Plaintiff with medical expenses recouped of $41,623.88. The court did so. The plaintiff appealed to the fourth District Court of Appeals. The $41,623.88 is the amount that the insurers paid. The remainder, $91,724.03, was written off.

In question is section 2 – 1205 of the Illinois court of civil procedure. The important part of 2 – 1205 provides that the defendants can get a reduction for 100% of the benefits “Which have been paid or have become payable to the injured person.” The court held that a write off by medical provider entitled to payment is the antithesis of a payment, by definition. It is not payable to anyone, least of all the injured person. The court held that the statute only allows a verdict to be reduced by the amount paid to the medical providers or payable to the plaintiff.

In Chlada vs Illinois Workers Compensation Commission the Workers Compensation Commission ruled that a person can get a wage loss differential and a permanent total claim.  The case involved two injuries.  The first injury resulted in the person being paid less than before the injury. After the second injury the worker could not work at all.

In Chlada the injured worker had an injury to his low back first, lifting beer as a beer truck driver. The worker got hurt again on October 23, 2003, when he hurt his neck working in the warehouse.  The worker filed two claims, one for each injury. He worked light duty until January 12, 2003, when his doctor took him off work because of his second injury. The worker had neck surgery on June 17, 2003.  The worker’s doctor imposed permanent restriction of no lifting over 58 pounds and only occasional overhead reaching on January 14, 2004.  The employer refused to take the worker back after the doctor imposed the restrictions.  Petitioner did an extensive job search of over 1,000 contacts, but he did find a job and did not work since the January 13, 2003 date.

The Commission ruled that his right to wage loss differential benefits began January 13, 2003 and ended April 22, 2004, after a remand. The Commission found the worker was permanently totally unable to work after that date.  The circuit court found the Commissions denial of benefits after April 22, 2004 was against the manifest weight of the evidence, and set aside the order, ordering wage differential ending January 13, 2003, “at which time PTD [Permanent Total Disability] benefits began.”

Medical error is now the third leading cause of death in the United States. The first two are heart disease and cancer. This, according to a British Medical Journal analysis by Martin Makary and Michael Daniel, professor at the Johns Hopkins University School of Medicine.

This article follows on several studies, including the landmark Institute of Medicine “To Err Is Human.” In To Err Is Human The Institute of Medicine, the branch of the government that studies medical issues, found that 98,000 people were dying from medical errors in the United States. This put the number of deaths at higher than work injuries and car wrecks combined.

According to Makary and Daneil, the Centers for Disease Control and Prevention failed to categorize medical errors as a cause of death. The article criticizes the medical community for using an international classification of disease (ICD) system as the primary indicator of death. Causes of death not associated with an ICD code, such as human error, are not captured in the system. Accordingly, there is no real way to track how many people die of medical errors on a yearly basis in the United States without extensive research, like they did.

In civil rights cases plaintiff typically uses statute called section 1983. This statute which allows for the plaintiff to file suit for violations of their constitutional rights. The statute gives a person the right to file suit against a person who is a government employee for deprivation of any rights, privileges or immunities secured by the Constitution and law. The statute gives the plaintiff the right to recover attorney’s fees incurred. The attorney’s fee shifting provision makes this an attractive statute for victims of constitutional rights violations.

The statute had been interpreted to provide liability if and only if the plaintiff can prove the defendant was deliberately indifferent. This has been the language used in the jury instruction and is cited as black letter law.

Deliberate indifference is a subjective standard. It is subjective because it turns on the subject a state of mind of the defendant.

The Supreme Court eliminated the public duty rule in the case of Coleman vs East Joliet Fire Protection District. The common-law public duty rule provided that governmental entities, such as fire and police entities, were immune from liability for things like responding to calls. In Coleman the court got rid of the immunity and substituted willful and wanton misconduct as the test for governmental liability.

In Coleman plaintiff resided with her husband in an unincorporated area of Will County. She called 911 indicating that her husband could not breathe and needed an ambulance. She asked the person on the 911 line to hurry because she was worried about her husband’s health. The 911 responders went to the wrong address. 41 minutes later the ambulance arrived. Plaintiff’s decedent died of pulmonary edema at 58 years old.

The trial court granted summary judgment for the public entity, basically dismissing the plaintiff’s case. The appellate court affirmed.

An old case, Abood, holds that unions can require nonunion members to pay their fair share of union dues because they benefit from the union negotiating for them. Abood said this applies to public sector jobs like state jobs.  Abood v. Detroit Bd. Of Ed., 431 U.S. 209, 232 (1977). Specifically, Abood says a state may allow public sector unions to charge nonunion members fees “insofar as the service charges are applied to collective-bargaining, contract administration, and grievance-adjustment purposes.” 431 U.S. at 232.

However, the Supreme Court recently suggested the opposite. In Harris v Quinn 573 U.S. ___ (2014) the court held that the First Amendment prohibits a State from forcing non-union members to pay for union speech on matters of public concern. Specifically, the Supreme Court wrote as follows:

“This case presents the question whether the First Amendment permits a State to compel personal care providers to subsidize speech on matters of public concern by a union that they do not wish to join or support. We hold that it does not, and we therefore reverse the judgment of the Court of Appeals.”

In Illinois the Supreme Court adopted the “Illinois Rules of Evidence.”  They are found here. As a practitioner, it is nice to have what is supposed to be the law on evidence spelled out in a simple document.

I had the honor of attending the committee meetings and speaking about an objection to the way they were drafted on a certain technical issue.  At the committee the people who drafted the rules indicated that they were not meant to change Illinois law on evidence. In other words, the rules are supposed to describe existing evidence law, not create new law.

Since the Supreme Court adopted the rules I was concerned about the “Learned Treatise” doctrine. Now for those of you who do not know what I mean by the learned treatise doctrine, in federal court and in Illinois prior to the adoption of the Illinois Rules of Evidence, a lawyer was allowed to impeach a witness who testified inconsistently with an authoritative document described in the law as a learned treatise. The theory is that if a book on the subject is authoritative and the witness testifies inconsistently, either the witness does not know what they are talking about or the witness may not be completely honest.

In James Hausman versus Holland America the jury awarded 21.5 million in favor of plaintiff James Hausman. The case took nine days in federal court in Seattle. The plaintiff’s lawyer was Rick Friedman, author of books entitled Rules of the Road and Polarizing the Case, among others. Part 1 of my interview with Rick is below.

Part 2 is below.

While in Illinois enforces personal-injury waiver forms, they have to be very specific. This was demonstrated in the case entitled Offord vs Fitness International, LLC (LA Fitness) 2015 IL App (1st) 150879.

I suppose at the outset I should disclose that I am a member of LA fitness in Springfield Illinois. The injury we’re discussing occurred in Cook County Illinois, which is about three hours away. I like our local LA fitness, but have no particular affiliation with them other than I work out at one.

In Offord, LA fitness had required the person using the facilities to sign a waiver, as do many health clubs. This particular waiver said that the person using the premises releases and holds harmless and agrees not to sue the health club for any and all claims from the use of the facilities “facilities, services, equipment or premises.”