Chicago Trial Attorney Blog : Chicago Trial Lawyer & Attorney : Philip J. Berenz Law Firm : Business Litigation, Personal Injury

Desperate to learn the truth, the family of an 84-year-old resident of a Kentucky nursing home hid a video camera in the resident's room after discovering dozens of bruises all over her body and not receiving satisfactory answers from the staff. Read the full article here.

The videotape captured the staff "pulling the resident out of bed by her wrists and neck," and "roughly moving the resident from side to side," the investigation showed.

Family should consult with a lawyer before attempting a similar situation--placing a video camera in a nursing home. However, demanding staff answer questions about noticeable bruises, injuries and cleanliness is appropriate--and a demand that an independent doctor immediately evaluate your loved one is also in order under such circumstances. Residents have rights to proper care and treatment. Ensure your loved ones are being properly cared for.

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The Consumer Product Safety Improvement Act of 2008 (CPSIA) was signed into law on August 14, 2008. The CPSIA establishes consumer product safety standards and other safety requirements for children's products and "reauthorizes" and "modernizes" the Consumer Product Safety Commission. It is a very strong law involving harsh civil and criminal penalties for those who violate it. Read all about the Act here.

One important aspect of the Act lowers the amount of lead that can be in children’s products. The limits will be phased in over the course of three years. By February 10, 2009, products designed or intended primarily for children 12 and younger may not contain more than 600 ppm of lead. Children’s products that contain more lead than 600 ppm are banned in the U.S. after February 10, 2009, and the sale of those products can result in significant civil and criminal liability. After 1 year from enactment, or August 14, 2009, products designed or intended primarily for children 12 and younger cannot contain more than 300 ppm of lead. The limit goes down to 100 ppm after three years, or August 14, 2011, unless the Commission determines that it is not technologically feasible to have this lower limit.

Another important aspect of the Act is that it requires third-party testing of children's products. Class actions against manufacturers of products that violate the Act may be warranted as compliance fails.

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A licensed practical nurse at a Virginia nursing home has just pleaded guilty to sexually assaulting a female comatose resident. Read the full article here. The resident had been at the home for about a year and the nurse was found assaulting her by another employee. As I have stated in other posts, especially in situations where your loved ones may be suffering from Alzheimer's or Dementia--or as in this case, a coma--ask questions about how he/she is taken care of, the policies and procedures for bathing, caring and feeding your loved one, and whether the home performs background checks on its employees. Residents have rights to be protected from such situations. 

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The Illinois State Police is instituting a new speed policy that calls for a "four tier response code system" beginning January 1, 2009. Read the facts of the new policy here. After two sisters were killed when an Illinois State Police Trooper's squad car crossed an I-64 median last November, Illinois State Police felt it was time to institute a policy to prevent future tragedies. Notably, this is only the second state in the nation to implement such speed policies and as the Illinois State Police points out:

The policy will institute a four-tier response code system for officers responding to calls for service. This policy will outline the use of emergency equipment and the speed and manner in which the officer will respond to a call, including supervisory notification when the responding officer intends to exceed the posted speed limit more than 20 mph. Supervisors will also be required to monitor the incident as it evolves and make appropriate changes in their officers’ response code as necessary. 

Pursuing another vehicle "at all costs" is simply unacceptable. Hopefully, this policy will prevent future tragedies.

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As one recent article points out, the holiday season is the time of year nursing home residents receive the most visits and loved ones should take careful note of any signs of abuse or neglect--especially bed sores. Bed sores are preventable, are not normal, and command immediate attention. If your loved one seems "distant" or has any bruising, scars, cuts or appears unbathed and dirty, take immediate action, ask questions and demand answers. Ask them how the staff has been treating them, if they have suffered any falls--even if they feel the falls may be their own fault--if they are receiving their medicine (and on time and at the right "intervals") and simply if they are happy. The law grants nursing home residents certain rights--particularly rights commanding proper care, free from abuse and neglect.

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An Arizona nursing home was found with more than two dozen violations and has agreed to pay the State $17,500 in civil penalties as a result notes the Arizona Daily Star. According to the article, among the violations noted, including a failure to protect its elderly residents from sexual abuse, state inspectors found that the home also failed to timely note that a resident suffered a seizure, fell and was unconscious--and was later found to have suffered intracranial bleeding from the fall. In addition, another resident who fell was merely given Tylenol for ankle pain when, in fact, after nearly a week, the center determined that she had actually fractured her ankle. Residents of nursing homes have rights to receive proper care. A simple phone call to a resident's primary care provider would prevent needless suffering. Make sure your loved ones are getting the attention they deserve--and with dignity and respect.

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It is critical that a nursing home and its staff take careful note of patients with conditions that could lead to elopement / wandering resulting in injury or even death. Dementia and Alzheimer's are two critical conditions that staff must treat carefully. Recently, a man who suffered from dementia wandered from a nursing home and was struck and killed by a train. Read the article here. His family has filed a wrongful death claim against the nursing home claiming:

workers at the facility failed to follow the company's established protocols for missing residents . . . [and] failed to adequately supervise [the resident].

Such residents must be carefully monitored to prevent such tragedies. If your loved one has any condition that may create wandering, check the protocol of the facility to ensure that proper measures and procedures are in place to address the condition.  

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At trial time, Defendants may make a motion before the Court to exclude gruesome photographs of injuries. However, simply because the photograph(s) may be gruesome and possibly cause prejudice in the minds of the jury is no reason to exclude the photograph(s). See e.g. Burnett v. Caho, 7 Ill.App.3d 266, 272 (3rd Dist. 1972). Admissibility is within the discretion of the trial judge and it is common practice to display personal injuries to the jury "even though there is no controversy as to the existence, nature and extent thereof." See id. For example, it has even been held to include the right to show an injured eyeball that has been removed and it is not error to permit the plaintiff to display his injuries to the jury and to testify briefly while so doing. See id.

Generally speaking, such exhibits are admissible if the probative value of the exhibits is not outweighed by their inflammatory effect. See Drews v. Gobel Freight Lines, Inc., 144 Ill.2d 84, 99 (Ill. 1991). In Drews, the plaintiff introduced photographs of a decedent taken at a morgue to support Plaintiff's claim for decedent's pain and suffering. One of the photographs even showed multiple lacerations to the decedent's face and throat, and the other photograph showed a gaping wound and burns to a knee. Similar to the Burnett case, the Illinois Supreme Court in Drews held that in spite of the fact that a photo may be gruesome or inflammatory, the trial judge may admit it for the probative value in assisting the jury's determination of the extent of pain and suffering. See id.

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As noted in a recent N.Y. Times Article, the Department of Health and Human Services ("HHS") noted that over 90% of U.S. nursing homes were cited for federal health and safety standards violations last year--and notably, for-profit homes had more problems. The report by HHS noted issues with pressure sores (also known as bed sores or decubitus ulcers), medication errors, and abuse and neglect among others and inspectors received 37,150 complaints last year. The article pointed out that HHS "substantiated 39 percent" of the complaints. As our society ages, nursing homes will become more populated; but, hopefully, this trend will cease if nursing homes are held accountable for their actions.

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In a well-written article by the New Jersey Lawyer, the old saying rings true: If you want to win over the jury, keep it simple. Jurors don't want to hear long dissertations on the law with "high-brow" words and fancy legal terms; jurors want to hear plain, everyday language--and in short statements or arguments. One attorney in the article summed it up perfectly:

Talk to the least-educated, dumbest juror you have. If he gets what you're saying, everybody else will too.

It is also noted in this article that the lawyer's task during trial can be summed up in seven words:

"Say it."

"Prove it."

"Say it again."

Tell the jury your client's story. Make it simple. Prove that story and sum it up in closing. Most importantly, keep it as short as possible to keep the jury's attention.

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Many individuals who are in accidents often ask me whether the jury will hear that the defendant received a ticket in relation to the accident. They would love for the jury to hear that! They are often surprised to hear me say "absolutely not." In fact, I tell them that the Judge--prior to the trial even beginning--makes decisions on whether such issues will ever be heard by the jury. These decisions by the Judge are based on what are known as "Motions in Limine." Motions in Limine are specific requests brought by both parties to prevent the mention of, question of, reference to, inquiry of, suggestion of--directly or indirectly--certain evidentiary issues. The rationale for excluding certain issues such as traffic tickets is, among other reasons, to prevent unfair prejudice to a party. Defendants routinely demand that evidence of traffic tickets be excluded from admissibility before the jury unless, generally speaking, a proper foundation is made as to a defendant pleading guilty (as opposed to being found guilty) and a certified copy of the guilty plea being made available at trial time. Even then, there is no guarantee a Judge will allow a guilty plea to a traffic ticket to be heard by the jury depending upon the specific circumstances of the situation. If the Judge rules that no evidence of traffic tickets will be admissible and a plaintiff (or his attorney or potentially other witnesses) mentions the ticket, the defendant's attorney will most likely move for an immediate mistrial!

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In its third year, "Advancing Excellence in America's Nursing Homes" is a coalition-based campaign to improve the quality of life for residents and staff in nursing homes. Goal #1 is to reduce pressure ulcers. See if your local nursing home is a participant in the campaign here: http://www.nhqualitycampaign.org/star_index.aspx?controls=welcome.

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The Centers for Medicare and Medicaid Services ("CMS") provides extremely useful information about Medicare and Medicaid nursing home providers with links to applicable laws, regulations and compliance information. You can view the main site here: www.cms.hhs.gov/CertificationandComplianc/12_NHs.asp. Most importantly, however, CMS provides a list of what is known as "special focus facilities" or a list of nursing homes that have a record of poor survey (inspection) results. These surveys are unannounced and are an important tool in evaluating the performance and compliance of nursing homes. In fact, you can view the nursing homes in your area and even compare them here: http://www.medicare.gov/NHCompare.

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If someone or another business attempts to interfere with a relationship that you are entering into with another business or customer, or in fact diverts that relationship, you or your business may have a claim against that individual or business for intentional interference with a business expectancy--or interference with "prospective economic advantage." In general, 4 elements must exist to prove this tort: (1) a reasonable expectancy of entering into a valid business relationship; (2) the defendant's knowledge of the expectancy; (3) the defendant's intentional and unjustified interference that prevents the realization of the business expectancy; and (4) damages resulting from the interference. See e.g. Chicago's Pizza, Inc. v. Chicago's Pizza Franchise Ltd. USA, 893 N.E.2d 981 (1st Dist. 2008). In fact, you need not even have an enforceable contract with the other business or customer--only the expectancy of entering into a relationship. See e.g. Mannion v. Stallings & Co., Inc., 204 Ill.App.3d 179, 561 N.E.2d 1134 (1st Dist. 1990). Competitors may have a right to compete; however, how that competition is carried out is the key analysis. These types of cases are extremely fact-specific; however, if you or your business feels another has intentionally and unjustifiably interfered with your relationship(s), call us to review the situation.

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Extensive information on Illinois nursing homes such as:

• Who regulates nursing homes;
• A list of Illinois nursing homes;
• How to select a nursing home; and
• Reports on nursing home violations

can be found at the Illinois Department of Public Health's web site here: http://www.idph.state.il.us/webapp/LTCApp/ltc.jsp. When making a decision on where to send a loved one, it may be prudent to peruse this site for insightful information on the nursing homes in your area.

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At least one Illinois Court has interpreted the mandatory award of attorneys' fees and costs in the event a principal fails to timely pay commissions due a sales rep. That Court found that the award of attorneys' fees and costs was not punitive in nature but was "compensatory." See Maher and Assoc., Inc. v. Quality Cabinets, 267 Ill.App.3d 69, 640 N.E.2d 1000 (2nd Dist. 1994). Therefore, principals beware--not only could you lose a matter brought against you for non-timely payment of commissions (and potentially be found liable for punitive, or exemplary damages, up to 3 times the amount of commissions due) but you may also end up paying the sales rep's attorneys' fees and costs which could, technically, exceed all commissions due!

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There is a little known law in Illinois called the "Illinois Sales Representative Act" which states that a "principal" who fails to timely make commission payments to a "sales represenative" is liable in a civil action for "exemplary damages" not exceeding 3 times the amount of the commissions owed to the sales representative and states that the principal "shall pay the sales representative's reasonable attorney's fees and court costs." 

"Principal" is defined as a sole proprietorship, partnership, corporation or other business entity whether or not it has a permanent or fixed place of business in this State and which:

(A) Manufactures, produces, imports, or distributes a product for sale;

(B) Contracts with a sales representative to solicit orders for the product; and

(C) Compensates the sales representative, in whole or in part, by commission.

"Sales Representative" is defined as a person who contracts with a principal to solicit orders and who is compensated, in whole or in part, by commission, but shall not include one who places orders or purchases for his own account for resale or one who qualifies as an employee of the principal pursuant to the Illinois Wage Payment and Collection Act.

If you feel that you are a sales representative who is owed commissions and hasn't been paid, contact us immediately so we can determine whether a civil suit is warranted.

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In February 2008, a new bill was introduced in Illinois which would amend the Nursing Home Care Act to insist that a nursing home carry liability insurance coverage in an amount not less than $1,000,000 per occurrence. The law would require the Illinois Department of Public Health to deny, suspend, revoke, or refuse to renew a license for failure to maintain such insurance coverage and would provide for public disclosure of the coverage. As of May 31, 2008, the bill has been "re-referred" to the Rules Committee and has not yet been made law. Keep track of its status here: www.ilga.gov/legislation/BillStatus.asp.

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The Illinois Nursing Home Care Act affords residents many rights. In particular, Residents have a right to have administered all medication and treatment as ordered by their physicians. In fact, the facility--through its director of nursing or charge nurse--must examine all new orders within 24 hours of their issuance to assure facility compliance. View the official rule here: www.ilga.gov/legislation/ilcs/ilcs4.asp

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