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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.

Claim Splitting

The appellate court addressed claims splitting in Dinerstein vs. Evanston Athletic Clubs, Inc. In Dinerstein the plaintiff filed suit involving an injury at a health club. The injury occurred when plaintiff was climbing a rock-climbing wall and fell. Plaintiff filed suit alleging negligence, willful or wanton misconduct, and loss of consortium.

Before climbing the wall plaintiff signed a release which indicated that plaintiff would not sue defendant for negligence. The court granted a motion to dismiss the negligence counts based on that agreement. The court then refused to allow an appeal of that particular issue pending the resolution of trial, denied the motion to reconsider, and continue the case on the other two counts.

Government entities are generally allowed immunity on many torts. This makes filing suit against a county or municipal government difficult. An example of that is Monson vs. City of Danville.

In Monson the plaintiff fell on property owned by the City of Danville. She had left a store in the downtown district and was walking to her car when she walked into an inch of water that had formed on the side-walk by land. As she walked to the water she felt her left shoe strike something which caused her to fall. She suffered injuries for which she sued the city. Her injury occurred on December 7, 2012.

The city’s superintendent of downtown services was responsible for maintaining the sidewalks. She walked the downtown district and painted places she believed required repair. After that the city’s engineer toured the area to discuss what needs to be done to the sidewalks. This occurred a year before the injury in 2011.

HR 1215 advancing through the house, the subject of medical neglect to come up again. HR 15 would limit noneconomic damages to $250,000 on medical neglect claims throughout the country. This would affect states’ rights to decide their own law about medical liability by taking away the right to make a decision. The bill is call the Protecting Access to Care Act of 2017. Always remember, whenever you read the title of a bill, it does the opposite of what you might suggest. This bill protects medical providers from their bad actions.

With the radio show a couple of weeks ago we had some spirited debate about the issue. A younger medical intern had questions and we had a really good discussion about the issues. After that, an older doctor called up to was very pro-tort reform. He argued that there is too much defensive medicine and so the government should cap damages in medical neglect suits. He argued that there is some evidence that 85 billion could be saved by capping defensive medicine, as if capping damages will suddenly get rid of all defensive medicine.  Here is a link to the podcast.

There are a couple of things I would say in response to the older gentleman. Concerning defensive medicine, the New England Journal of Medicine says caps cause little effect on defensive medicine.   He also argued that many people are sued when they should not be. Presumably his friends have told him that they had been sued in cases that lack merit. I have no doubt many doctors say such things regularly. Howver, Illinois does have a certificate of merit for medical neglect claims which requires a doctor to certify that there is malpractice before the suit can proceed.

In Barry v St Mary’s Hospital the Plaintiff treated at Defendant – St Mary’s – for injuries he sustained in a car wreck. The defendant asserted 3 liens against the Plaintiff’s personal injury claim which he had against a third party who was not involved in this case. The defendant eventually submitted two of the three bills to Plaintiff’s health insurance.  The third remained a lien on the Plaintiff’s personal injury case.

Plaintiff filed suit against St Mary’s claiming several things, including consumer fraud, third party beneficiary, and breach of contract. In this lawsuit, the plaintiff claimed that the defendant must submit the medical bills to his health insurer. Refusal to do that was breach of contract and tortious.

The court rejected the Plaintiff’s claim.  It held that neither the Lien Act or any contract required the medical provider to submit bills to the health insurer. It could maintain its lien against the case and refuse to bill the health insurer. Claims for breach of contract and tort could not lie.

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There has been little guidance from the courts in Illinois about electronic discovery.  The Illinois Supreme Court has changed the rules a little bit to accommodate electronic issues. But for the most part we treat electronic discovery the same way we treat paper discovery. Facebook posts are discoverable to some extent and get used in the courts. Electronic documents are discoverable under the discovery rules.

The appellate courts are slow to get cases because unless a litigant wants to take the time and money fighting about it the issues frequently just get resolved at the trial courts, without appellate review.

However, the appellate court recently got a shot to make some law in the case entitled Carlson v Jerousek 2016 IL.App (2d) 151248. The case got to the appellate court in the normal way for a discovery issue.  The plaintiff took a friendly contempt after the court ordered him to comply with its order. The court had ordered that the defense could do a forensic image of all his 5 computers.

The court in Steak and Shake vs the Worker’s Compensation Commission addressed what is now a common issue in politics. Groups in Illinois wish to limit liability for workers’ compensation claims by only allowing the case to be compensable if it is the “primary cause” of the condition. This naturally sounds reasonable to people in the public. Why shouldn’t the primary cause be the test?

What people fail to appreciate is that “primary cause” in workers’ compensation claims really means eliminating aggravations of pre-existing injuries as claims. The Steak and Shake case is it is a good example of why suing “primary cause” as a test is unreasonable to older claimants and eliminates legitimate claims involving pre-existing condition conditions.

In Steak and Shake vs. Illinois Worker’s Compensation Commission the petitioner was the manager for Steak and Shake. She was busing tables to keep customer flow moving. As she was wiping down the table she felt and heard a large pop in her right hand. She immediately felt excruciating pain that began in her thumb and radiated across her hand.

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.