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With medical bills getting more and more expensive, it seems that people will fight more about whether or not medical bills are reasonable and necessary. In Illinois, for a party to introduced bills into evidence, they are required to prove that the bills are reasonable, necessary, and related. Usually, by the end of the case the defense has agreed to stipulate to allow the medical bills into evidence. Plaintiffs often use requests to admit in an attempt to get the defense to agree to allow the bills into evidence. Typically, the defense will refuse to admit the pills are reasonable unnecessary in writing, requiring an agreement orally, which then gets confirmed my email or letter. Defense may hire experts to rebut the plaintiff’s evidence about the reasonableness and necessity of bills, but they rarely do.

The collateral source rule permits a party to offer evidence of what is reasonable and necessary, but prohibits testimony about what a collateral source, a third party, like an insurer, actually pays for services. This is based on the principal that a tortfeasor, (the person who did wrong and caused the need for medical bills) should not get the benefit of plaintiff’s insurance agreements.

In the case Verci vs. High Plaintiff incurred over $1,000,000 in medical expenses, so the defense decided to fight about it. Defense hired an expert, Rebecca Reier to claim that the charges of Dr. Kube, who charged the great majority of the bills, were unreasonably high.

As a Plaintiff’s lawyer I’m always concerned about naming the right corporate defendant. People frequently set up numerous corporations and LLC’s to protect them from liability. They often have similar names. If you look at the Cyberdrive website and look up any Corporation you will find numerous ones with similar names. To make matters worse, people who own a lot of rental property typically set up one big LLC with a different sub – LLC for each property. This can make suing the proper defendant very difficult.

This came up in the recent case of Angell vs. Stantefort Family Holdings LLC. In Angell the plaintiff was being shown a mobile home which she was considering purchasing. The defendant had failed to place a grate over a hole in one of the mobile homes. Plaintiff stepped in the hole and was seriously injured. She filed suit, naming Tristar Estates LLC , who owned the ground as the defendant

In its answer the defendant was evasive as to who owned the property. They objected to the allegation as to whether or not they owned the mobile home. Then they indicated that Stanefort Real Estate Group LLC did not manage occupy released the unit . It denied the existence of any leases contracts or similar agreements with regard to the mobile home. Stanefort was owned by an irrevocable trust entitled the Stantefort Family 2012 Irrevocable Trust. Brian Gallagher was the CEO of the defendant company. There were at least eleven companies related to the irrevocable trust. Gallagher was also the chief operating officer of Stantefort Property Management Inc. There was also another company called Midwest Home Eentals LLC which owned the mobile homes and should have been the defendant in the lawsuit.

Witness disclosures are frequently an issue in jury trials. Lawyers are required to make disclosures in civil jury trials concerning what witnesses they intend to call, and what those witnesses are expected to say. The rule is intended to prevent surprise for litigants. It is also frequently used as a sword by the opposing lawyer to keep evidence out.

This became an issue in the medical malpractice claim entitled Wilson vs. Moon. In Wilson, the plaintiff’s decedent was a young man, 23 years old, who suffered a pulmonary embolism which killed him. The plaintiff’s decedent went to the emergency room complaining of shortness of breath. The plaintiff sued the emergency room physician and the hospital where the plaintiff’s decedent passed away.

During discovery the plaintiff and the defendant indicated in their witness disclosures that any available witness disclosed by any party may be called as a witness by the party that was making the disclosure. In other words, all parties claim they could use all witnesses for all purposes that had been disclosed by other parties.

The courts in Dukich vs.Illinois Worker’s Compensation Commission recently misapplied, in my opinion, the law, as it applies to falls on premises. The losses previously been that wherever there is a fall on premises, so long as it arises from a defect, like snow, or ice, that the fall is compensable. This often occurs as people are coming to and going from work. Dukich acknowledges these cases but makes a strange distinction. The worker was going to lunch when she fell in a parking lot that was wet from rain. The arbitrator awarded benefits. The Worker’s Compensation commission reversed the finding of the arbitrator and denied benefits. The appellate court affirmed the Worker’s Compensation Commission. The appellate court questioned whether the rain was the sole reason for the fall, suggesting that the claimant’s shoes might have had something to do with it.

The court found that work did not increase the risk the plaintiff would fall. This is questionable finding. The plaintiff would not have been at the worksite which was wet had it not been for work. While it is possible the plaintiff would have gotten wet somewhere else, he would not have been forced to do so by his employer.

The court distinguishes falls on ice and snow from water caused by rain. This is not a reasonable distinction. Both ice and water are the same compound. One is a little more slippery than the other, but that is all. Both fall from the sky and land on an employer’s property, increasing the risk that people get hurt.

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.

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.”

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