Chicago Injury Lawyer Blog

DuPage County Medical Malpractice Lawyers: Certifying a Medical Negligence Claim in Illinois

March 28, 2012 | John J. Malm

Any number of injuries, including birth injuries, brain injuries, spinal injuries, and even death, can be caused by a hospital’s mistake, a doctor’s misdiagnosis, anesthesia complications, a physician’s incompetence, and other causes. In Illinois, malpractice actions (lawsuits for negligence) against physicians, psychologists, podiatrists, dentists, hospitals, naprapaths (health care professionals focusing on non-invasive manual techniques), or any physicians licensed to treat people without the use of drugs or surgery must follow the strict procedural guidelines set forth in Section 2-622 of the Illinois Code of Civil Procedure.

Designed to prevent frivolous lawsuits, like many similar state statutes, Sec. 2-622 requires an attorney to first consult with a medical professional before filing the complaint in a court of law. In order to properly initiate the lawsuit, the attorney must attach an affidavit to the Complaint declaring that the attorney has consulted with a medical professional who has reviewed the plaintiff’s injuries and believes the Plaintiff has a meritorious cause of action. A written report from the physician, setting forth the basis for the professional’s opinion, must also be attached.
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Kane County Car Accidents: Red Light Cameras and Photo Enforcement

March 27, 2012 | John J. Malm

According to the Kane County Division of Transportation, the running of red lights remains one of the major causes of car accidents. Nationwide, nearly 1,000 people are killed and approximately 178,000 are injured when vehicles crash as a result of negligent drivers running red lights.

The Illinois legislature empowers each county to regulate its streets and highways. In 2006, the Illinois legislature went further, allowing for red light cameras at high volume intersections. Kane County, DuPage County, Cook County, Lake County, and Will County, are among the Illinois counties permitted to install establish automated traffic law enforcement systems (red light cameras). Designed to capture a motor vehicle’s license plate, red light cameras take a digital photo of a motor vehicle entering an intersection while the red light signal is illuminated.
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Illinois Automobile Safety Update: Rearview Camera Mandate Postponed

March 24, 2012 | John J. Malm

According to the Washington Examiner, the National Highway Traffic Safety Administration (NHTSA) by way of the Transportation Secretary, Ray LaHood, told Congress on February 28, 2012, that new rules mandating rearview cameras on all passenger vehicles would be delayed until the end of 2012. In 2008, Congress passed the Cameron Gulransen Kids Transportation Safety Act. The law instructed the NHTSA to set standards for rear visibility. The Chicago Tribune reported that regulators were pushing to require rearview cameras in all new cars by 2014. It’s now unclear, however, whether the most recent delay will push back the 2014 date.

National Highway Traffic Safety Administration

Established in 1970, the National Highway Traffic Safety Administration (NHTSA), a part of the Department of Transportation, is responsible for reducing deaths, injuries, and economic losses resulting from motor vehicle accidents. In November 2006, as a part of this mandate, the NHTSA investigated the safety issues related to motor vehicle backover accidents. Backover accidents occur when a driver is backing up a vehicle and strikes a child, pedestrian, vehicle, or other object. The NHTSA tested different technologies that are designed to prevent pedestrian injuries, injuries to minors and children, and collisions with other objects. Based on its research and testing, the NHTSA determined that ultra-sonic and radar parking technologies inadequately prevented most injuries to child pedestrians; rather, the NHTSA found that the technology most effective in preventing backover car accidents was camera technology.
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DuPage County Dog Bite Lawyers: Protecting your rights under the Illinois Animal Control Act

March 24, 2012 | John J. Malm

Dog bites and animal attacks are more common than most people think. Often, the disfiguring injuries that result are never reported to animal control officials. Every year in the U.S., there are nearly 4.7 million dog bites, 800,000 of the attacks require medical attention. To compensate for the harm caused by dog bites, the insurance industry pays over $1 billion in claims each year.

Illinois has enacted laws designed to protect the rights of those who have suffered an injury due to an animal attack. Previously, under the common law, a person injured by a dog could recover only by proving that the dog had previously manifested a disposition to bite or cause harm, and that the owners of the dog were aware of the dog’s harmful disposition. This was known as the “one bite rule.” Although the rules set forth under the common law still exist, the Illinois Animal Control Act now provides an easier remedy for dog bite victims. Under the Animal Control Act, dog bite victims no longer need to prove that the dog owner had prior knowledge of the animal’s vicious nature. The Act makes it easier to plead and prove a dog bite injury case.
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Illinois Car Accidents: Why NOT to Speak to the Insurance Company

January 13, 2012 | John J. Malm

The time after a car accident can be stressful and frightening. Painful injuries and worries about keeping up with work and family are the biggest concerns. You may be in no position to speak to anyone – let alone the insurance adjuster for the at-fault driver. But the insurance company will often contact you and ask you to settle your claim quickly, often for a figure that is far less than it is worth. If you have been hit by a car while riding your bike or as a pedestrian, you can expect a call from the insurance company. My advice: Never speak to them without a lawyer.

No matter what the adjuster tells you, the at-fault driver’s insurance company does not have your interests in mind. In fact, the adjuster has a conflict of interest in saying anything to you about the value of your claim. It is important NOT to speak with the at-fault driver’s insurance company without counsel. Any competent attorney knows that a call to the insurance company is likely to be recorded; therefore, it is not in your interest to say anything at all. It is best to leave all communication to your counsel.
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Slip & Fall Claims: Unnatural Accumulation of Snow and Ice in Illinois

January 11, 2012 | John J. Malm

As winter approaches, snow, ice, and water are going to become hazards for pedestrians who can injure their neck and back. In Illinois, a slip & fall accident is an actionable claim against the property owner or manager depending on how the snow, ice, or water accumulated. If an accumulation occurs naturally and without aggravation by the property owner, Illinois courts have held that a property owner generally owes no duty to remove the accumulation, regardless of how long the accumulation has been present. Despite this, Illinois courts have also found that business owners have a duty to provide a reasonably safe means in ingress and egress. Reed v. Galaxy Holdings, Inc., 394 Ill.App.3d 39 (1st Dist. 2009).

Once a property owner undertakes to clear snow or ice from the premises, the property owner assumes a duty to do so non-negligently. One such scenario is when a property owner has shoveled snow into a pile, which later melts and then refreezes, creating a hazard. If a parking lot has a sloped grade, and the snow is removed to the higher part of the parking lot, melting snow that drains back across the parking lot may result in an unnatural accumulation. Unnatural accumulations can also form from gutters or a leaking roof which drain melting snow onto a parking lot only to refreeze there.
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Insurance Subrogation Liens: The Common Fund Doctrine in Illinois

January 9, 2012 | John J. Malm

The common fund doctrine serves to limit an insurance company’s recovery of insurance liens from a Plaintiff’s settlement. The common fund doctrine is an exception to the American rule on attorney’s fees. Typically, each party is responsible for their own attorney’s fees unless there is a statute or an agreement between the parties to the contrary. However, the common fund doctrine allows an attorney to collect a reasonable fee from a fund created through the attorney’s efforts. The rationale is to prevent the unjust enrichment of other parties, such as an insurance company, through the lawyer’s hard work, without paying their fair share.

Commonly, this doctrine is applied in cases involving car accidents, pedestrian accidents, and bicycle accidents in which the plaintiff’s insurance company has paid for medical expenses for the plaintiff’s injuries and is seeking repayment from the at-fault defendant’s insurance company. For the common fund doctrine to apply, the attorney must create the fund through legal services, the subrogee or claimant must not have participated in bringing about the creation of the fund, and the subrogee received a benefit from the common fund. However, the doctrine will not apply when the subrogee expresses a prompt, clear, and unequivocal desire to pursue its own subrogation claim against the defendant’s insurance company.
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Illinois Social Host Liability in the Wake of Bell v. Hutsell

January 5, 2012 | John J. Malm

The Illinois Supreme Court recently clarified social host liability in Illinois in the decision of Bell v. Hutsell. The case explains how personal injury or negligence claims can arise in social host situations. These claims may include car accidents. Generally, a social host of a party where alcohol is served is not liable for injuries caused by persons who consume alcohol and thereafter cause injuries to third persons. However, under a voluntary undertaking theory, if a social host undertakes an act, then they may be civilly liable if they perform that act negligently. As an example, a parent who allows their minor child to have a party at their residence and undertakes to prevent minors from consuming alcohol, such as confiscating liquor, may be liable if an intoxicated person subsequently injures a third person.

In the case of Bell v. Hutsell, Daniel Bell, an 18-year-old, attended a party hosted by the Defendants’ son, Jonathon, and allegedly consumed alcohol at said party. In the complaint, the Plaintiff alleged the Hutsells were aware of underage consumption at the house, that their son, Jonathon, had previously pled guilty to underage consumption, that underagers drank excessive amounts of alcohol within the presence of the Hutsells without any objection, and that Jerry Hutsell had spoke to a number of underage parties who had been drinking alcohol and requested that if they had drank, then not to drive. The Complaint further alleged that after consuming alcohol at the Hutsell residence Daniel Bell died in a single-car accident when his vehicle collided with a tree.
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Negligence Cases: Proximate Cause and Foreseeability of Harm

December 27, 2011 | John J. Malm

Most negligence cases require the Plaintiff to prove the same four elements; duty, breach, causation, and damages.

Actual cause or cause in fact is the actual event that caused the harm. The harm would not have happened but for the actual cause event occurring. Proximate cause is also known as legal cause. To win a negligence claim, the plaintiff must show more than just breach by the Defendant toward the Plaintiff. The negligent content must also be the legal cause of the Plaintiff’s injuries. The Restatement (Second) of Torts requires two elements to be met to determine whether an action is the legal cause of the Plaintiff’s injuries. First, the tortious conduct must be a substantial factor in bringing about the injury. Second, there must not be a rule of law which prevents the defendant from being liable for his negligence.
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Wrongful Death: New law helps family members gain access to records in Illinois

December 15, 2011 | John J. Malm

On November 23, Governor Quinn signed SB 1694. The new legislation allows access to a deceased family member’s medical records without the requirement of opening of an estate. SB 1694 will add 5/8-2001.5 to the Illinois Code of Civil Procedure entitled: “Authorization for release of a deceased patient’s records.” 735 ILCS 5/8-2001.5. The new law makes it easier for families of victims to investigate wrongful death claims. Under the new rule, a decedent’s records may be released upon written request by a deceased person’s estate or agent appointed under a power of attorney. If no executor, administrator, or agent exists (and the deceased person made no prior objection), then the deceased’s medical records can be obtained in one of two ways. First, the medical records may be attained by the deceased’s surviving spouse sending written request to the medical facility. Second, if surviving spouse exists, then medical records may be obtained by written request by one of the following: an adult son or daughter of the deceased, a parent of the deceased, or an adult brother or sister of the deceased. The person requesting the records must sign an “Authorized Relative Certification” attesting the fact that the person is entitled and authorized to receive the records under the statute.
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