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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.

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.”

We had Christine Scott on the air with her lawyer quite some time ago to discuss her trial over vaginal mesh case. Partially as a result, James Ackerman got involved in some vaginal mesh litigation and is actively interested in these issues.  There are currently 70,000 vaginal mesh cases pending in federal court in a multi-district  litigation. Vaginal mesh is the biggest type of civil lawsuit pending in federal court. All the rest of other cases pending in all the federal courts do not total number of vaginal mesh cases pending.

Christine Scott filed a complaint against Bard entered Dr. concerning the implantation of her vaginal mesh. Her doctor had watched a DVD on this surgical technique. However, he did not bother to read instructions for use. He implanted vaginal mesh. After the surgery Christine could not urinate, and was in pain. She had multiple surgeries to try to fix the problems and a sixth surgery to extrude mesh and to release mesh tension. Following that she was in excruciating pain due to nerve damage, had pain during sex, and lost control of her bowels. The jury awarded Christine 5 million in damages and her husband 500,000 for loss of consortium. The jury found her doctor’s negligence was not a substantial factor in causing the Scotts harm, but assigned 40% fault to her. Accordingly, the court reduced the Scotts noneconomic damages by 40% and entered judgment for 3.3 1 million per Christine and 300 for her husband.

Bard appeal. It claimed that the negligence theories were improperly instructed to the jury. Bard argued that it could not be strictly liable for design defect. The court found that Bard was right about that, but just because it was immune for strict liability does not make it immune for negligence. The court determined that the jury was properly instructed on negligence.

As an attorney who handles medical negligence, workers compensation and other injury claims I see and talk to numerous people who have bad surgical results. Quite frankly, many of them are not necessarily the doctors’ fault. On the other hand, there are clearly too many medical complications. This is been studied many times. The studies conclude that patients who go to the hospital take a risk in going there.

To a large extent, the outcome of a given procedure is not in the hands of the patient. It is very difficult for patients to know what physician is good at any given procedure or what medical institution does a decent job of providing medical care.

Fortunately, ProPublica has done a large study of medical providers and their complication rates. The Surgeon Scorecard is here.  This database studies surgeons throughout the United States and calculates death and complication rates for various types of surgeries. My video discussing this database is here.

The Illinois Supreme Court took the Turcois v Debruler case. We reported about the appellate decision here. This case involved a fascinating set of facts. The   plaintiff rented an apartment by the defendant. The defendant, within 30 days of the plaintiff rented the property, began knocking the building down around the plaintiff and his family. The family and the defendant were obviously upset by the defendant’s conduct. The plaintiffs’ decedent then committed suicide. The details are reported in the case; I will not re-state them all here.

The appellate court had held that the plaintiff could pursue the cause of action for intentional infliction of emotional distress and could seek damages for the suicide. The appellate court cited the Restatement of Torts, which is frequently considered very authoritative, in its decision.

The Supreme Court disagreed with the appellate court and dismissed the counts concerning suicide.  The Supreme Court reasoned that a plaintiff must get past two hurdles, cause in fact, and cause in law.  Proximate cause, also known as cause in law, is limited by foreseeability, according to the Supreme Court.