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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.

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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 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 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.

Zofran (ondansetron) is an antinausea drug. It is intended for significant nausea issues caused by things like chemotherapy. However, Glaxo SmithKline also marketed it for use with pregnant women. The problem was that Glaxo SmithKline had failed to do any testing of the drug with pregnant women.  In 2006, prior to its becoming available in a generic form, Zofran was among the top selling drugs in the United States. The FDA estimated that number nearly a quarter of Zofran prescriptions were given to pregnant women.

As early as 2006, in a study published in Hong Kong, concerns were raised about the use with pregnant women. The Hong Kong study concluded that Zofran cross the placenta to the fetus. More studies were done. In 2011 a British study concluded that women who took Zofran were over twice as likely to have babies with congenital defects, including cleft palates. In August 2013 a Danish study found that children were to four times more likely to have babies born with congenital heart defects. It is clear that additional studies are needed.

Glaxo Smith Kline engaged in illegal conduct in its off label marketing of Zofran. Giving Zofran to pregnant women is considered off label use.  In July 2012 Glaxo Smith Kline entered into a settlement agreement with the United States Department of Justice to resolve claims that it illegally marketed Zofran, among other drugs. It agreed to pay a fine of $1 billion, which included a criminal fine and a forfeiture. It also agreed to pay another 2 billion to resolve claims by the government under the False Claims Act. The settlement resolves criminal issues, alleged by the federal government, that Glaxo Smith Kline had paid kickbacks to healthcare providers to get them to prescribe drugs.

We had the honor of having George Patrick, a workers compensation lawyer from Indiana, on the radio on Saturday, March 14, 2015, Pi day.  This is especially interesting to me because I have heard so many people talk about the differences between the Illinois Worker’s Compensation system in the Indiana Workers Compensation System.  Some people believe that Illinois should save money by following in the footsteps of Indiana.

This interview followed the recent ProPublic/NPR report about how states are demolishing their workers compensation systems.  Judges have called the modern workers compensation systems “inhumane” according to ProPublica/NPR.

I always wondered about the deterrent effect of medical malpractice laws. In other words, if you pass laws which limit responsibility of tortfeasors do you embolden them to commit torts? Does the fact that they have limited responsibility make people less careful?

This is often discussed in the medical malpractice area. Pro-tort reform entities seek to cap damages.  Groups who advocate for victims rights, like the Illinois Trial Lawyers Association and the American Association for Justice, cite studies from people like Tom Baker, author of the Medical Malpractice Myth,which indicate that the great majority of people who were injured by medical providers’ negligence do not file suit. They discuss the huge numbers of medical errors compared with the paucity of actual suits.  (Tom Baker was a guest on my radio show, Let’s Talk Law.  Also, I should probably mention I am a member of American Association for Justice and on the Board of Managers for the Illinois Trial Lawyers Association).

Zenon Zabinski and Benard S. Black have written a paper about this issue. The papers entitled “The Deterrent Effect of Tort Law: Evidence from Medical Malpractice Reform.”  The paper analyzes cases from states that enacted damage caps for medical malpractice claims. Those states are Florida, Georgia, Illinois, South Carolina, and Texas. The study notes that in Illinois and Georgia invalidated the caps. However, Zabinski and Black studied information that predated the invalidation of the caps so the information should not effective the study.

I spoke at the Illinois Trial Lawyers seminar in September 2014. I gave an update on tort law.  Below is a breakdown of the cases that I discussed.  There were a few already on this blog that I did not include.  Enjoy.  Feel free to contact me at Ackerman Law Office if you have questions or want to hire me.  217-789-1977.

Sharbono v Hilborn

 In Sharborno v Hilborn a woman went in for a mammogram in November 2004.  The defendant Dr. concluded that the lesion was benign. He did not order a biopsy. Two years later she went to her family doctor complaining of cramping her left breast and pain in her shoulder and requested a second mammogram. In August plaintiff had another mammogram and an ultrasound of her breast. The ultrasound indicated the lesion was probably malignant. It was in fact malignant. Plaintiff filed suit against Dr. and the hospital. The hospital settled out. There was extensive testimony by doctors about the lesion and its interpretation. Many doctors thought the 2004 ultrasound should have been classified as at least BI RADS 3 probably benign, rather than BI RADS 2 benign.