Chicago Trial Attorney: Personal Injury & Business Litigation - Nursing Home Care

Maybe it's time for you to hold their hand? Symbolic or literally - your loved one must be vigilantly cared for when they can no longer care for themselves. Nursing homes are required by law to provide non-negligent care. Is your loved one being properly cared for?

Federal law is quite clear on the "big picture" of required care by nursing homes:

Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care. 

42 C.F.R. 483.25 (emphasis added).

I have highlighted several important words in the above law. Note first that the word "must" appears twice in fact and then the next "absolute-type" word of "highest". These words were not chosen accidentally. The first two words clearly "direct" a nursing home with "commands" - to provide quality care to your loved one. The next word is only what you would want for your loved one - the "highest" state your loved one can attain or maintain. 

As a parent, you want nothing more than quality care for your child. As a child, you should expect nothing less for your parent. Roles are reversed as you age and become responsible for the "watch" of your parent(s). Take their hand and make sure the nursing home watches as you would would watch.

You can contact me here 24/7/365 (and I really mean that as I will answer my phone) if you have any questions and to learn how I may be able to help you or your loved one who may desire to discuss these difficult and sensitive nursing home care matters - in particular, you will find that I listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). I would be honored to help you with your matters - large or small.

Chicago Trial Attorney: Personal Injury & Business Litigation - Trucking Accidents & Invalid Licenses

New data released in October 2014 (for the year 2012 - most recent) by the U.S. Dept. of Transportation shows "large trucks" involved in 3,753 fatal crashes also involved 115 "invalid" licenses.

Invalid license has been defined as:

Those who had either no license or did not have a valid license or proper endorsement for the class of vehicle they were driving were considered to have invalid licenses.

"Large trucks" are required to have drivers with commercial driver licenses ("CDL's"). One of the first items investigated is just that - a valid and "proper" license.

It is critical to preserve such evidence. Make sure to speak with a lawyer immediately following a trucking accident to begin the proper investigation.

You can contact me here 24/7/365 (and I really mean that as I will answer my phone) if you have any questions and to learn how I may be able to help you or your loved one who has been a victim of a trucking crash or negligence - in particular, you will find that I listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). I would be honored to help you with your matters - large or small. 

Chicago Trial Attorney: Personal Injury & Business Litigation - Decubitus Ulcers & Treatment

Proper initial assessment, follow-up and treatment of pressure sores (a.k.a. "bed sores" or "decubitus ulcers") is critical in the nursing home environment. First, the proper "stage" should be noted at assessment:

Generally, pressure sores can be classified into four (4) "stages" as noted in this picture or "unstageable" (although "unstageable" can be questionable if there is an improper assessment). 

Stage III and Stage IV pressure sores are clearly the worst and can result in "debridement" or surgical repair. Depending upon a physician's recommendation, the surgery can go deeper or be minimally invasive. The U.S. Department of Health & Human Services describes the various treatments (at length) in its "Pressure ulcer prevention and treatment protocol" guideline which can be found here.

Bottom line, pressure sores should not even develop, much less attain a "Stage III" or "Stage IV" rating. Simple care, turning and positioning can be powerful means to avoid them altogether. Make sure your loved one has been given a proper skin assessment immediately upon admission to a nursing home, that there is follow up assessments (as in plural) and that you constantly ask your loved one if any areas of their skin are sore - especially the heels, hips, tailbone (coccyx), and back of their head. Look yourself and ask questions of the staff. Get involved.

If you find any bed sore on your loved one, take immediate action so it does not get worse and demand answers. Then contact a lawyer to assess whether there can be legal action taken. Nursing homes need to understand that they cannot simply collect their fees, ignore their responsibilities to residents and - worst - allow your loved one to unnecessarily suffer.

You can contact me here 24/7/365 (and I really mean that as I will answer my phone) if you have any questions and to learn how I may be able to help you or your loved one who may desire to discuss these difficult and sensitive nursing home care matters - in particular, you will find that I listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). I would be honored to help you with your matters - large or small.

Chicago Trial Attorney: Personal Injury & Business Litigation - Pressure Sores = Unacceptable

Pressure sores or bed sores a.k.a. "decubitus ulcers" are simply unacceptable to arise in the nursing home and hospital context. Worse, they should not go so untreated that they become septic resulting in potential premature - or wrongful - death.

In fact, one part of Federal Law requires that quality care be provided nursing home residents:

Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care. 

Further, Federal Law specifically requires that pressure sores be addressed as follows:

(c) Pressure sores. Based on the comprehensive assessment of a resident, the facility must ensure that—

(1) A resident who enters the facility without pressure sores does not develop pressure sores unless the individual’s clinical condition demonstrates that they were unavoidable; and

(2) A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing.

See generally 42 C.F.R. 483.25

Simple preventative care like air mattresses specifically to relieve pressure "spots" and "turning and positioning" a resident (from lying in one place too long) can avoid the pressure sores altogether. Make sure your loved one is getting this simple care because once a pressure sore starts, it is quite difficult to reverse, especially in older generations. 

You can contact me here 24/7/365 (and I really mean that as I will answer my phone) if you have any questions and to learn how I may be able to help you or your loved one who may desire to discuss these difficult and sensitive nursing home care matters - in particular, you will find that I listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). I would be honored to help you with your matters - large or small.

Chicago Trial Attorney: Personal Injury & Business Litigation - Police Officer Testimony

Police play important roles in security and, sometimes, as witnesses. I am often asked about police coming to the scene and the tickets issued (or not) and what it all means in the civil context (as opposed to criminal) case.

My clients are often surprised about the ticket issued. I have written on that extensively before. However, what an officer may offer to a case from other angles can be critical: 

- potential black box investigation 

- statements taken after arrival at the scene

- impressions by the police officer of the drivers involved (for example, was someone drinking, did one driver seem to be telling the truth in a "close call" or did the officer notice skid marks or other physical indications of fault?)

- observations of the weather and traffic conditions

Illinois has a specific rule on listing a witness such as a police officer in a case. It is Illinois Supreme Court Rule 213 and spells out the required disclosures. That rule states in pertinent part at sub-paragraph (f):

(f) Identity and Testimony of Witnesses. Upon written interrogatory, a party must furnish the identities and addresses of witnesses who will testify at trial and must provide the following information:

   (1) Lay Witnesses. A "lay witness" is a person giving only fact or lay opinion testimony. For each lay witness, the party must identify the subjects on which the witness will testify. An answer is sufficient if it gives reasonable notice of the testimony, taking into account the limitations on the party's knowledge of the facts known by and opinions held by the witness.

   (2) Independent Expert Witnesses. An "independent expert witness" is a person giving expert testimony who is not the party, the party's current employee, or the party's retained expert. For each independent expert witness, the party must identify the subjects on which the witness will testify and the opinions the party expects to elicit. An answer is sufficient if it gives reasonable notice of the testimony, taking into account the limitations on the party's knowledge of the facts known by and opinions held by the witness.

   (3) Controlled Expert Witnesses. A "controlled expert witness" is a person giving expert testimony who is the party, the party's current employee, or the party's retained expert. For each controlled expert witness, the party must identify: (i) the subject matter on which the witness will testify; (ii) the conclusions and opinions of the witness and the bases therefor; (iii) the qualifications of the witness; and (iv) any reports prepared by the witness about the case.

It is important that your lawyer not only list a police officer who may be helpful but also all other witnesses. Make sure your lawyer is doing just that - making a proper list. If not, get a second opinion! These details matter.

You can contact me here 24/7/365 (and I really mean that as I will answer my phone) if you have any questions and to learn how I may be able to help you or your loved one who may need, or simply want, a second opinion - in particular, you will find that I listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). I would be honored to help you with your matters - large or small. 

Chicago Trial Attorney: Personal Injury & Business Litigation - Fraud 101

Fraud is a serious allegation. It is serious to prosecute. It is serious to defend. Illinois law (and Federal law for that matter) require stricter pleading to make out a case or the fraud count(s) will be dismissed. This stricter pleading is sometimes referred to as "heightened pleading" or "pleading with specificity". 

 

Illinois law is clear: “[t]o plead a legally sufficient common law fraud claim, a plaintiff must allege that:

(1) defendant made a statement;

(2) of a material nature;

(3) which was untrue; and

(4) was known by defendant to be untrue, or was made in culpable ignorance of its truth or falsity;

(5) was made for the purpose of inducing reliance by the plaintiff;

(6) was actually relied on by the plaintiff; and

(7) resulted in the plaintiff's injury.”

Small v. Sussman, 306 Ill.App.3d 639, 646 (1st Dist. 1999) (emphasis added).

I like to explain to my clients the "important" element - damages. That is, just because someone "tricked" you or lied to you perhaps does not mean a Court or Jury will simply "give" you - or award you - money. The trickery / deceit must result in an injury a.k.a. "damages". Illinois law is also even more clear on this particular point - “Damage is an essential element of fraud.” City of Chicago v. Michigan Beach Hous. Coop., 297 Ill. App. 3d 317 (1st Dist. 1998) (citing Gerrill, 128 Ill. 2d at 193; Shah v. Chicago Title & Trust Co., 119 Ill. App. 3d 658, 661 (1983)) (emphasis added).

Careful review of a complaint is necessary to defend a fraud claim - every word counts. On the flip side, careful investigation of a potential claim (the "who, what, where, when, why, how" questions) will aid in drafting a more thorough, "heightened pleading" to secure a fraud count. Nothing seems to be "bullet proof" however in either event as a Judge has discretion in reviewing each particular fact situation for - usually - an early determination on whether fraud can even be pursued in a matter. Fraud is not well taken in the Court system.

You can contact me here 24/7/365 (and I really mean that as I will answer my phone) if you have any questions and to learn how I may be able to help you or your company analyze a potential fraud situation and "map out" a strategy in relation to same or simply provide you a second opinion to help you fight every inch of the way from start to finish as business/commercial cases are battles unfortunately - in particular, you will find that I listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). I would be honored to help you with your matters - large or small.

Chicago Trial Attorney: Personal Injury & Business Litigation - Commercial Litigation Basics aka Strategy

Business or commercial litigation of any sort requires planning a.k.a. strategy. Whether the situation involves plaintiff or defense posture (or both), careful thought and exploration of the myriad of issues is an absolute must.

Lawyers are required to reasonably investigate a matter before filing a new case - or perform some "due diligence". Same is required when answering or taking on a new defense matter. Review of documents, interviews with the client(s) and/or witnesses and/or potential experts and perhaps some research are at the core of any due diligence. Most importantly, however, is the next step(s) - strategy and planning.

The ins and outs of strategy can be endless. Depending upon the type of lawsuit and claims involved, careful planning with the client(s) is critical and new developments can significantly affect the ongoing matter(s). Is your lawyer talking to you on a constant basis about this very topic? What is the "game plan" in your matter? What is the hopeful "end game" so to say - or desired result? Any business person would routinely consider these questions in business. Such concepts and questions are essentially no different in working through a litigation matter.

While no lawyer can ethically guarantee any particular outcome (highly unethical), I have clients constantly coming through my door claiming "my lawyer promised me this or that". Perhaps the clients misunderstood as lawyers cannot promise what a Judge or Jury might or might not do or what the other "side" might file (or not). We do not have the proverbial crystal balls. But what we do have is diligence, creativity and perseverance to try to accomplish what our clients hope for and desire. Again, the path to attain such is generally some sort of strategy and planning. Ask your lawyer if that is happening - and now!

You can contact me here 24/7/365 (and I really mean that as I will answer my phone) if you have any questions and to learn how I may be able to help you or your company analyze a situation and "map out" some sort of strategy or simply get you a second opinion to help you fight every inch of the way from start to finish as business/commercial cases are battles unfortunately - in particular, you will find that I listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). I would be honored to help you with your matters - large or small. 

Chicago Trial Attorney: Personal Injury & Business Litigation - Will Your Lawyer Fight Every Inch of the Way?

Multiple "levels" of rules exist in law - from the Constitution all the way down to administrative rules and then the cases interpreting all of them. Skilled and experienced lawyers know how to employ them on your behalf - or in your defense every inch of the way throughout your case if necessary and possible. Is your lawyer doing that?

In fact, I often file motions when Defense Attorneys seem to want to start to "testify" for their own clients or file insufficient knowledge answers. Such is clearly not allowed:

 

Every allegation not explicitly admitted is denied. 735 Ill. Comp. Stat. Ann. 5/2-610(b) (Lexis 2014).

In fact, the Illinois Code of Civil Procedure requires that a defendant’s answer contain an explicit “admission” or “denial” of each allegation in the complaint with one important exception: for situations where the defendant lacks knowledge to admit or deny the allegation, provided that the defendant (not the defendant's attorney) attaches an affidavit stating that s/he lacks the necessary knowledge. However, if the defendant does not attach an affidavit, the allegations may be deemed admitted. Bank of Ravenswood v. Domino’s Pizza, 269 Ill. App. 3d 714, 723-24 (1st Dist. 1995).

Allegations in a complaint should be deemed admitted when not specifically admitted or denied - or when an attorney, in essence, attempts to "testify for" his or her client. See Bank of Ravenswood, 269 Ill. App. 3d at 723-24.

The law also makes it clear that Defendants cannot demand “strict proof” and in fact even the federal courts have criticized this practice. See e.g. Sun Life Assurance Co. of Can. v. Great Lakes Bus. Credit, L.L.C., 968 F. Supp.2d 898, 904 (N.D. Ill. 2013); Gilbert v. Johnston, 127 FRD 145 (N.D. Ill. 1989) (noting that neither the Federal Rules of Civil Procedure nor the Illinois Code of Civil Procedure provides for demands for strict proof).

Will your lawyer watch out for such incorrect admissions or denials every step of the way? Will your lawyer explain to the Judge and Court that such is not allowed? Raise your hand and ask your lawyer. Get a second opinion if you are not getting a straight or thorough answer. 

You can contact me here 24/7/365 (and I really mean that as I will answer my phone) if you have any questions and to learn how I may be able to help you or your loved one who may need, or simply want, a second opinion or want to know how to fight every inch of the way as these cases are battles unfortunately - in particular, you will find that I listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). I would be honored to help you with your matters - large or small.

Chicago Trial Attorney: Personal Injury & Business Litigation - Will Your Lawyer Actually File Suit? Second Opinion?

Will your lawyer actually take that step to file a lawsuit if necessary? Or will your attorney do what I call "short settle" and never step foot in court? 

There are times to settle outside of Court and before ever filing suit - and often. However, I see too many lawyers taking the first offer or what I call "short settling" a case - any type of case. Good lawyers "work up" cases to settle every time and often cases can be settled without ever filing suit - the key is: has your case been "worked up"? 

Many of my clients mistakenly believe that the insurance companies will have to spend thousands on legal fees to defend a case if a lawsuit is simply filed and demand that a lawsuit be filed immediately no matter what. This mistaken belief is often not true many times at all! In fact, the "way it works" in the real world is that many insurance companies - especially with respect to auto accident insurance companies - have lawyers essentially "on staff" and at a "fixed cost" without a need to pay their lawyers by the hour. On the flip side, sometimes the defense lawyers hired by the insurance company are, in fact, paid by the hour - but for a reason.

Filing a lawsuit could be one of the worst things you could possibly do depending upon the circumstances and every case is different. Again, the key is - has your case been "worked up" and analyzed to determine whether it's time to file or time to settle.

Big companies "skew" my clients' mistaken beliefs in the "system". In fact, a very recent Summer 2014 letter put out by the Illinois Trial Lawyers Association ("ITLA" and of which I am a proud member!), has established the true facts on how the system is working in relation to lawsuit filings:

The fact is the filing of civil lawsuits in Illinois has steadily declined since 2007 – the number is down nearly 25 percent – but making note of that does not support [big business'] objective. Nor do statistics showing injury lawsuits make up just 6 percent of all civil cases filed in state courts. Indeed, businesses and insurance company supporters initiate most civil litigation; nearly 70 percent of civil cases involve businesses suing other businesses or individuals for money. 

Next time you talk to your lawyer, ask him or her - did you work up my case before you suggested I take that first offer? Ask careful questions. I invite them from my clients. I want to educate my clients about the pros and cons of settling - or filing a lawsuit. Make sure you make the right decision at that fork in the road - or get a second opinion.

You can contact me here 24/7/365 (and I really mean that as I will answer my phone) if you have any questions and to learn how I may be able to help you or your loved one who may need, or simply want, a second opinion - in particular, you will find that I listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). I would be honored to help you with your matters - large or small.  

Chicago Trial Attorney: Personal Injury & Business Litigation - Trucking Accidents

Trucking accidents can be the most deadly. It is obvious and goes without saying that the sheer weight and force behind such a 5-ton+ behemoth can result in serious injuries by even the slightest bump much less at "normal", or worse, high speeds.

According to the most recent data from the U.S. Department of Transportation found here, thousands were killed and injured in 2012 (most recent data). In fact, the Department of Transportation noted:

In 2012, there were 3,921 people killed and 104,000 people injured in crashes involving large trucks (gross vehicle weight rating greater than 10,000 pounds) . . . In the United States, 333,000 large trucks were involved in traffic crashes during 2012.

Federal and State law / regulations differ on what truck drivers can or cannot do - that is, for example, whether the truck driver must maintain certain records and the extent of record keeping. After a crash, it is critical to immediately attempt to preserve evidence of such through what is called a "spoliation of evidence letter" by an attorney (fancy legal language for "you must preserve evidence" and "don't throw evidence / records in the garbage or delete it").

In fact, I often send an immediate, detailed letter with "instructions" to a potential defendant truck driver insurance company demanding that the following (perhaps not exclusive list) be preserved and not destroyed:

o   The tractor and trailer involved in the accident at issue;

o   Permits and licenses covering the vehicle involved in the accident at issue;

o   Any and all permits and/or licenses held by Mr. ____________________;

o   Bills of lading and any other documents in relation to the freight on board on the vehicle involved in the accident at issue on the day of the accident;

o   Mr. ____________________’s daily logs or “diary” of each hour spent on the road and any “resting” for the two (2) years prior to the date of the accident referenced above and in accordance with 49 C.F.R. 395.8 and/or 395.15 and any devices/books used to so record same shall also be preserved, not destroyed, concealed, modified, changed or altered in any way, shape or form;

o   Inspection reports for the tractor (semi cab) and trailer involved in the collision at issue;

o   Any and all maintenance and repair records for the tractor and trailer;

o   Mr. ____________________’s qualification file;

o   Any and all photographs, video, and records of all of the vehicles (not just the tractor-trailer) involved in the accident at issue and of the scene of the accident;

o   Mr. ____________________’s alcohol and/or drug testing results in relation to this incident;

o   Any and all contracts involving the tractor-trailer at issue (e.g., including, but not limited to, any independent use, subcontracted use or other use);

o   Any and all contracts involving the tractor-trailer at issue and its freight;

o   Any and all data from any and all on-board recording devices such as, but not limited to, black boxes;

o   Mr. ____________________’s personnel file and driving history;

o   Any and all GPS tracking data and the devices/software used to so track;

o   Any and all statements obtained from any witness or person in relation to the accident at issue;

o   Any and all dispatch records in relation to Mr. ____________________ and/or his tractor and/or trailer for the two months prior to this incident at issue;

o   Any and all hiring and employment records of Mr. ____________________;

o   Any and all electronic data on any ECM, PCM or other device—whether internally or externally mounted (on the engine or inside any electronic modules internally);

o   Any and all audio and video recordings in relation to the tractor-trailer from any time and from this incident or any investigation in relation thereto; and

o   Any and all data relating to the use of any cell phones or other communication devices of Mr. ____________________ or others in the vehicle at the time of the incident at issue.

Thereafter, I even work with the truck driver / trucking company to arrange to have the truck inspected as soon as reasonably possible. I essentially "wrap up" with a note warning the truck driver / trucking company about the law: "As you may know, Defendants’ failure to comply with this notice can result in severe sanctions being imposed by Court and possible liability in tort for spoliation of evidence or potential evidence."

It is critical to preserve such evidence. Make sure to speak with a lawyer immediately following a trucking accident.

You can contact me here 24/7/365 (and I really mean that as I will answer my phone) if you have any questions and to learn how I may be able to help you or your loved one who has been a victim of a trucking crash or negligence - in particular, you will find that I listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). I would be honored to help you with your matters - large or small.