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

The fact finding process in civil cases is known as "discovery" -- that is, where you can ask the other side to turn over any document or other piece of evidence/information in their possession that might have some bearing on your case (provided that you ask for it in fairly descriptive terms).

Many litigants make the mistake of stopping their focus after obtaining discovery -- once they've gathered everything they have from the other side, that's the end of their inquiry. Success or failure in any given case, however, largely depends on the winning side's ability to think outside the box, so to speak.

When it comes to discovery, then, technically speaking, you are not limited to asking the other side to turn over evidence -- you just have to know how to ask. For a very basic example, let's say you are involved in an auto accident in a supermarket parking lot. Both sides claim that the other driver was at fault, but after discovery, there is really no hard evidence other than each driver's word, essentially making the case a "he said, she said" situation that, quite frankly, can often go either way at trial. Now, let's add to the example that this parking lot, as large stores often do, has a surveillance camera in its parking lot that captured the whole accident on tape. In most cases similar to this example, the supermarket would not be a party to the lawsuit and as such, you would not be able to simply send a discovery request to turn over the surveillance tape, as you would, say, a copy of any pictures of the scene of the accident that the defendant may have taken. But this does not mean that you cannot get the surveillance tape that may make or break your case -- again, you just have to know how to ask for it.

A plaintiff (through their attorney) can issue subpoenas for documents and other information (even testimony) that require non-parties to turn over evidence, documents and information, provided that the subpoena meets certain technical requirements. For starters, the requested information has to be reasonably clear -- if you're looking for the surveillance tape, then you must say so. You also have to pay a fee to the person/business you're seeking information from, usually starting at around $25.

Further, the power of such subpoenas -- if all of the steps are followed properly -- are real consequences for failing to comply: the person/business may even be brought into court to explain to the Judge why they shouldn't have to turn over the evidence, or else they may face some hefty fines and even perhaps be held in contempt of court! That's very powerful!

The point to be had is that the difference between winning and losing is often the party's willingness to go above and beyond and take full advantage of all the litigation tools at your disposal. 

You can contact us here 24/7/365 if you have any questions and to learn how we may be able to help you analyze your particular situation--maybe subpoenas will be the only way to get the evidence you need to prove your case. Most importantly, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

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Conversations and communications between you and your attorney are covered by what is known as the attorney-client privilege. Privilege attaches to such conversations and communications so that you and your lawyer can freely discuss your matters without being judged and without hesitation, amongst other reasons. 

To be entitled to the protection of the attorney-client privilege, a claimant must show that:

(1) a statement originated in confidence that it would not be disclosed

(2) it was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services; and

(3) it remained confidential.

See Pietro v. Marriott Senior Living Servs., 348 Ill. App. 3d 541, 551 (1st Dist. 2004).

The policy underlying the attorney-client privilege is to encourage full and frank consultation between a client and his attorney by removing the fear of compelled disclosure of information. See People v. Jacobson, 119 Ill. App. 3d 103, 104 (1st Dist. 1983). Strict confidentiality, promoted by permanent protection from disclosure, is the very essence of the existence of the attorney-client privilege; it is also the basis for allowing such communications complete exemption from discovery. Jacobson, 119 Ill. App. 3d at 104. Privileged communications are at the instance of the client permanently protected from discovery. Id. at 105.

On the other hand, if a conversation, for example, took place in a crowded elevator, or if you went and told a co-worker afterward what was said, then the communication may not be privileged because it wasn't confidential.

Another key point is that the privileged conversation has to generally be for the purpose of giving legal advice, and the advice can't be used to further or cover up a crime. While this might all sound pretty straightforward, application of this privilege can come up in very unexpected ways - and sometimes in matters years down the road that you couldn't possibly envision at the time you made the statements.

You can contact us here 24/7/365 if you have any questions and to learn how we may be able to help you analyze your particular situation. Most importantly, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

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Parties to a lawsuit (usually with the assistance of their attorneys) are under a duty to answer everything truthfully, but that doesn't mean that it's always easy to get a "straight" answer out of someone.

This is one of those areas that distinguishes attorneys -- recognizing the difference between a party giving an affirmative yes or no answer, and half-measures such as "I think" or "I believe that is correct." A good attorney will not accept half-measures for answers and make further (hopefully many) inquiries to get to the truth.

While this might seem like something trivial, half-measures and "couched" answers can actually chip away at even the best of cases. One way to avoid these problems and "keep everyone honest," so to speak, is Supreme Court Rule 201(k). This rule allows an attorney that notices an incomplete or evasive answer to confront the other attorney and seek clarification to any lingering questions. If this fails, then a party may bring a motion before the Judge and let the Court decide if the question was adequately answered. The reasoning behind this rule is that everything in even the simplest cases can be won or lost in the smallest of details.

You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you analyze your particular situation--and help to ensure you are getting truthful answers. Most importantly, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

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One of the most sensitive parts of filing a lawsuit after you've been the victim of an injury is the extent to which your private medical issues must come to light.

It is unfortunate that you have to give complete strangers access to your most private records, and it is an unfortunate side effect of pursuing your rights. Steep barriers prevent most people from having access to your medical information -- even your own attorney cannot ask for one paper from any of your doctors until the doctor has received a signed medical release pursuant to law from you personally.

Another important protection is the line of cases in Illinois known as the "Petrillo Doctrine," which prevents a defense attorney from so much as contacting your doctor.

In the case that set out the rule (Petrillo v. Syntex Laboratories, Inc.), the court ruled that no third party could permissibly contact a plaintiff's medical providers -- and as the later cases that would fashion this "rule" into a "doctrine" established, this includes defense attorneys, insurance claims adjustors, anyone.

The only way a defense attorney can obtain your medical records, or even appear for a deposition to take the information from your doctor(s), is by issuing a subpoena.

Collectively, these laws and rules are important, because they recognize the sensitive nature of filing a lawsuit for damage to your health, and they put as many mechanisms as possible in place to protect you and your privacy -- especially in such sensitive times.

You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you analyze your particular situation. Most importantly, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

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One of the most important components of the litigation process leading up to trial is the discovery deposition. Deposition is a fancy legal word for a process by which a person sits down in front of a court reporter and gives testimony under oath that is transcribed by that court reporter.

A deposition may end up being the only time that a person is allowed to tell their "story" in their own words while being asked questions by an attorney. This process is so important that the Illinois Supreme Court Rules allow parties to take depositions in person simply by issuing a notice to the other side -- stated otherwise, they don't have to obtain permission from the court and issue a subpoena like they would for someone like an eye witness to an accident or a treating doctor or any person with information in relation to a situation such as a breach of contract in the business context.

Interestingly enough, however, courts are beginning to look favorably on using technology to make what is traditionally a rigid process into a more convenient, accommodating system.

Under the new Illinois Supreme Court Rule 206(h), parties can make a special request to take a deposition by telephone, video conference, or other live technological method. Because it is often debatable as to why many similar laws are enacted, the rules committee went out of it's way in this case to specifically note that:

The Committee is of the opinion that the apparent acceptance and utilization of telephonic and other remote electronic means depositions demonstrate that there is no need to require a party to obtain an order on motion to proceed with such depositions absent a written stipulation. Therefore, the Committee recommended the elimination of such a requirement so that the depositions may proceed by notice.

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The Importance of Completeness

In every case, there is a "discovery process" where parties exchange information and begin to weed out the issues of a case. Many attorneys make the mistake, however, of assuming that just because materials (be they interrogatories (a fancy word for "questions" in writing), requests to produce documents, requests to admit facts, amongst others) have been sent to the opposing counsel, that the issue of discovery is complete. This, however, is most certainly not the case, and it can often lead to tensions between the attorney and the client.

Courts take the rules governing discovery very seriously, and one of the rules most commonly argued over is the rule of completeness. When you complete discovery materials, your attorney will almost always require you to sign a statement known as an "affidavit of completeness" that states that the answers you gave were true and complete. For example, the Illinois Supreme Court even requires such be signed by affidavit (See Il. Sup. Ct. R. 214).

The problem with this, however, is that in the law, as is often true in life, open-ended questions often lead to vague answers. Courts often conclude, when confronted with such vague and ambiguous answers, that the answer should be interpreted as "yes," even if that was not your true intent. This often comes up in the context of the often-mentioned Requests to Admit Facts. Many of these proposed facts set forth broad statements that you may not have enough personal knowledge or information to answer. Following in line with this rule, however, simply stating that you cannot answer the question is the same as admitting that the statement is true, strange as it may seem. This is an easy mistake to make, but it is an incredibly difficult mistake to fix. Even if an attorney catches such a mistake in time, he will most likely then be forced to scramble at the last minute to contact the client, clarify the response, and fill out the neccessary documents to correct such an error.

An open line of communication between attorney and client is critically important -- when clients don't understand the complex language many attorneys use in their discovery requests, the attorney needs to be available to explain the questions, and likewise, when an attorney needs to make corrections and deal with situations as they arise, the client needs to be available as well. The consequences of a breakdown in the communication process are dire, and unfortunately they are quite common. This is why it is important to seek attorneys who can communicate effectively with their clients. Likewise, it is important for the clients to make the effort to communicate and tell the whole story to their lawyers.

You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you ensure your case is handled in a "complete" fashion - in particular, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

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A case often develops and "takes on a life of its own" due to the strategies attempted to be employed by defense attorneys. Essentially, a trial strategy can often draw a striking contrast between the way an incident seemed at the time of its occurrence, and how things are actually presented at trial.

A good trial attorney must keep the Judge and Jury focused on the truth at all times - and with the utmost passion.

For example, defense attorneys might approach the damages component of many plaintiffs' claims by arguing over "causation." As a matter of background, most personal injury cases are rooted in the law of negligence. In order to sustain a claim, a plaintiff must show four (4) main points:

(1) that the defendant owed him/her a duty not to harm / cause injury;

(2) that the defendant breached that duty;

(3) that there is a direct causal link between the defendant's conduct and the plaintiff's injury (the "causation" component); and

(4) that the plaintiff suffered damages.

When one thinks of a standard personal injury case, the common consensus is that the parties are arguing over a matter of perception -- essentially, who's fault the incident really was. However, defense attorneys might concede fault or "admit liability" but then spend the lead-up to trial and focus their entire efforts during the entire case and subsequently during the trial, itself, arguing that the plaintiff's injuries were not caused by the defendant's conduct (negligence). In plain English, the defense attorney will argue "Injured Sally's bad back is the result of age and arthritis and not due to the rear-end car accident while Sally was sitting at a red light when Joe Defendant collided with Sally at 30 miles per hour." In fact, defense attorneys will often hire a medical expert (a medical doctor) to analyze x-rays and other medical evidence to show arthritis or any other pre-existing conditions.

From a tactical standpoint, this is an interesting approach, because it changes the focus of what a case is really about. Instead of arguing over which driver had the right-of-way, a case becomes about whether that visit to the chiropractor was necessary, or why a plaintiff took an extra week to begin physical therapy.

Attorneys can bicker back and forth on these issues for days on end, and some of them actually do. Injuries are tricky sometimes -- they aren't always immediately apparent. Or sometimes, people do not like to admit to themselves that they are injured and take a "wait-and-see approach" to seeking medical treatment. In retrospect, it's easy to make an armchair diagnosis, so to speak, and come to the conclusion that someone should have taken a particular course of treatment, but this approach isn't necessarily consistent with the way things appear at the time of an incident.

This is an important consideration to keep in mind when seeking an attorney -- no case is perfect, and what separates a skilled plaintiff's attorney is the ability to clearly make the "causation" and "link" between the current injury and the accident and to carefully address any pre-existing problems and "carve out" such issues. Likewise, it is important that an injured party clearly communicate with his/her doctor the injury so it is well-documented in the medical records.

If you are in an automobile accident, get all the information possible immediately and take notes. Then contact an attorney immediately. You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you.

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In a 6-0 decision, late last week March 2011, the Illinois Supreme Court ruled in the case of Thomas Vincent v. Alden-Park Strathmoor, Inc. that punitive damages are not allowed under the Nursing Home Care Act in death cases.

This is an unfortunate decision that seems to give nursing homes less incentive to care for the most vulnerable people in our society--the elderly who need care.

While defense attorneys in the matter surely argue that the elderly are sick "already and dying," we find just the opposite in the cases we have handled--the elderly in cases meet an untimely and early death due to errors in care, abuse and/or negligence--and sometimes willful and wanton conduct that should give rise to punitive damages to send a message to the nursing homes that better care and attention is required so that the next person is not treated similarly.

The key here that should be well-noted is that if you believe a loved one has been the victim of abuse or neglect in a nursing home and has not died (fortunately), swift action should be considered to garner potential punitive damages. Do not delay and contact us immediately if you believe this has happened. 

You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you and your loved one.

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Tomorrow is a day we should keep in perspective, take a deep breath and remember. It was Abraham Lincoln who, in 1863, proclaimed (and no matter what side of the political fence you are on, the words are from the heart) "The year that is drawing towards its close, has been filled with the blessings of fruitful fields and healthful skies. To these bounties, which are so constantly enjoyed that we are prone to forget the source from which they come, others have been added, which are of so extraordinary a nature, that they cannot fail to penetrate and soften even the heart which is habitually insensible to the ever watchful providence of Almighty God . . . I do therefore invite my fellow citizens in every part of the United States, and also those who are at sea and those who are sojourning in foreign lands, to set apart and observe the last Thursday of November next, as a day of Thanksgiving and Praise to our beneficent Father who dwelleth in the Heavens..."

I am thankful--and honored--for my clients' trust in me, my colleagues and assistants who support me on a daily basis, my family and wife for the back up, the small and large accomplishments and all things good. Take a moment to look away from the bad news, focus on the good that has happened and remember, for at least a day, to be thankful.

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In California, a 94-year-old woman was awarded $12.5 Million by a jury for a sexual assault at a nursing home according to an article here.

The attorney for the assaulted woman alleged that the nursing home did not adequately staff the home, unsupervised employees and did not properly screen employees. 

Notably, the article claims:

Evidence at the trial showed that [the assailant] had submitted false IDs with multiple dates of birth, different pictures and different spellings of his name.

'Yet these people hired him and gave him a key to every patient's room,' [the attorney for the victim alleged.]

You must be extremely vigilant of your loved ones in these facilities. Review the Centers for Medicare and Medicaid Services listings of nursing homes here and check to see if your loved one is in a poor-performing facility and keep a vigilant eye on the care and treatment. If you believe your loved one has been abused or neglected, please do not hesitate to contact us for a confidential, free initial consultation on whether you should file a claim.

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About a week ago, sweeping reform was passed by both houses in the Illinois Legislature which will help ensure better patient care and safety of some of the most vulnerable people in our society. Senate Bill 326 as originally introduced was to amend the Older Adult Services Act and in provisions concerning the development of a plan to restructure the State's service delivery system for older adults, provides that the Department on Aging and the Departments of Public Health and Healthcare and Family Services shall develop the plan no later than September 30, 2010. The bill was introduced to in order that such a plan shall protect the rights of all older Illinoisans to services based on their health circumstances and functioning level, regardless of whether they receive their care in their homes, in a community setting, or in a residential facility. 

According to one article found here and AARP Senior Manager for Advocacy, Nancy Nelson, "This legislation provides sweeping reforms that will radically improve the quality of care and safety for nursing home residents in Illinois[.]"

Among other improvements, the bill would require higher standards in admitting patients with serious mental illness and to segregate dangerous residents, increase staffing levels and ensuring stronger regulation, generally, of nursing homes.

You must be extremely vigilant of your loved ones in these facilities. Review the Centers for Medicare and Medicaid Services listings of nursing homes here and check to see if your loved one is in a poor-performing facility and keep a vigilant eye on the care and treatment. If you believe your loved one has been abused or neglected, please do not hesitate to contact us for a confidential, free initial consultation on whether you should file a claim.

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A colleague of mine, friend and great attorney in Wisconsin, Jonathan Groth, noted the signs of an attorney who listens and cares on his blog here when he said:

I just finished a jury trial in Milwaukee County. During the trial preparation my client and I were talking about how long we’ve known each other. I was the attorney that answered the phone when he called in the very first time soon after the collision. He didn’t talk with a paralegal, 'intake specialist' or secretary. I worked with him since, literally, day one.

Jon went on to note something that is absolutely paramount when choosing a lawyer: 

This kind of service is important to think about when you search/interview for your attorney. Hiring an attorney is a very personal matter. Availability (email, cell phone etc) and personality are extremely important to make sure your attorney will be with you for the long haul. By this I mean potentially to trial. Even though the vast majority of my clients’ cases settle before filing a lawsuit and before trial I think it helps them to know that their attorney will be willing and has the experience to fight at trial.

Like Jon Groth does in Wisconsin, I do in Illinois: you call, I answer the phone--24/7/365. Send an e-mail--you'll get a response. If I don't answer immediately, I either have 3 other calls coming in or am in front of a Judge or in a deposition and I guarantee you will receive a return call that day or evening. Your issues matter. Make sure your attorney answers his or her phone--and listens.

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According to an article published January 23, 2010 here, authorities in both Illinois and Indiana are investigating numerous nursing homes for patient safety problems. According to the article, an Indiana nursing home named Northlake Nursing and Rehabilitation Center run by a for-profit company may avoid likely closure. The primary investor of the nursing home is nursing home operator Eric Rothner and

Many of Rothner's nursing homes have suffered quality and patient safety problems and have been investigated by authorities in Indiana and Illinois.

Also according to the article, Northlake was "red-flagged" for a "Special Focus Facility watchlist by the Centers for Medicare and Medicaid Services. . . and it was noted that the "home is ranked by state and federal agencies as among the worst in the state."

Review the Centers for Medicare and Medicaid Services listings of nursing homes here and check to see if your loved one is in one of these poor-performing facilities and keep a vigilant eye on the care and treatment. If you believe your loved one has been abused or neglected, please do not hesitate to contact us for a confidential, free initial consultation on whether you should file a claim.

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After an auto or other accident (auto, malpractice, slip and fall--or any incident such as a breach of contract, sexual harassment incident, assault and battery, nursing home negligence and abuse or any incident you can possibly imagine), insurance companies will most likely be the first to contact you. Next, will be other individuals or entities--all trying to investigate and obtain information to build a defense against any potential claim you may have.

Whether you should talk to the insurance company (or any other person or entity) is basically a judgment call on your part; however, you should simply consult with an attorney first and ask the insurance company or other investigator that your attorney be present on a teleconference call to protect your rights. You generally have a duty to cooperate with your own insurance company under your policy.

And if another party's insurance company contacts you, a witness or other investigator, you are generally not required to talk to at all--and should not without an attorney present. A third party's insurance company or other investigator will most likely take down notes, or worse, record the conversation and then try to build a defense in your case or use every single word you say against you 6 months, 1 year, 2 years later in your case. In addition, defendant's insurance companies will try to "push" low settlement offers--sometimes $500.00 or $1,000.00 when your medical bills could quickly escalate over those amounts after an accident.

As for witnesses or other investigators, you should absolutely consult with an attorney first. The attorney should be involved to take a witness statement if possible for preservation of thoughts and observations while they are fresh in everyone's minds. Again, such statements can greatly impact your case and you should get all contact information from a witness immediately at the scene of an accident--the more telephone numbers, the better!

If you are unsure of who to speak with, simply pick up the phone and call us at 312-375-6524 (24/7/365--and we really mean that!) for two minutes. We can help and those two minutes could impact your case significantly. 

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PASSION - INTEGRITY - TRUST - RESULTS

Taking a personal injury matter where a man, a woman or a child has been injured (slightly or significantly) requires, first and foremost, passion and empathy. If a lawyer cannot truly understand the suffering (again, small or significant) that another human being is enduring, the lawyer cannot demonstrate or exhibit to every person, insurance company and, ultimately, the jury how that suffering has affected a person's life.

The same holds true when a person or company is cheated out of money. When money owed is not paid. When a person or a company is wrongfully sued and must be zealously defended. Money cheated, money owed and wrongful or frivolous lawsuits cause suffering in a person's life as well. People can't sleep at night. People worry. They cannot focus on their jobs, their family, life in general. People lose their homes because bills aren't getting paid. Credit is ruined. Family arguments erupt.

A person's life in personal injury situations is even more dramatically affected when even a hurt back or a hurt neck makes it next to impossible to sit at a desk all day long at work or perform manual labor--whichever life calling a person follows. Sometimes "calling off" from the pain results in a lost job and a downward spiral of a lost home, lost relationships, lost life. The things you used to enjoy you can enjoy no longer. It wasn't your fault.

Your lawyer needs to truly understand all of these aspects of how a personal injury matter or business dispute has affected your life. Aggressive and zealous representation and empathy are an absolute must. An attentive ear--listening to you--is the only way a lawyer can fully comprehend the situation. Phil Berenz listens.

Integrity is doing the "right thing when nobody is looking." Your lawyer must handle every aspect, every conversation of your matter with the utmost integrity-when you are not on the phone and when you are not present. Trust must be unequivocally paramount.

And, finally, while a lawyer can never guarantee a particular outcome in any matter, the passion, integrity and trust will usually (not always) end in positive, productive results.

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A recent report questions whether employee reports of patient abuse in a nursing home went ignored. Read the full article here. An individual was indicted last month on four counts of aggravated sexual abuse of nursing home patients.

Two employees of the nursing home reported the abuse to their supervisor and the Board of Nursing is now investigating whether the reports went unanswered.

Monitor your loved ones closely. If you notice any bruising, withdrawal, a lack of willingness to communicate with you or unusual behavior, report the issue to the administrator of the nursing home but a call to the local police department may be in order as well. Take action. Call us to determine if a civil lawsuit should be filed.

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A recent article notes that a top state prosecutor is supporting the placement of cameras in nursing homes residents' rooms to protect them. Read the full article here. While residents would obviously have the right to object for privacy matters, the idea seems like one that would add another level of security to our most vulnerable segment in society. The article also notes from Wes Bledsoe, founder of "A Perfect Cause" whose mission is "TO END NEEDLESS SUFFERING AND PREVENTABLE DEATHS, WHILE PROTECTING THE RIGHTS OF CITIZENS FROM CORPORATE GREED AND NEGLIGENCE" (visit www.aperfectcause.org), the following profound statement:

The system is broken beyond all belie[f]. Your loved ones are suffering as a result ...

Bledsoe's grandmother died on her 86th birthday in 2000 as a result of the negligent care she received at an Oklahoma City nursing home and hence his founding of A Perfect Cause. The fight must continue against such negligence. If you feel your loved one has needlessly suffered as a result of nursing home abuse or neglect, contact us immediately to review the situation. We usually work on a contingent basis if we believe you have a claim--that is, if there is no recovery, there is no attorney fee due.

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Yet another bill has been introduced to try to cap non-economic and punitive damages when nursing home residents and their families attempt to hold nursing homes accountable for abuse and neglect. Read the full article here. The article reiterates what the Centers for Medicare and Medicaid has found in the quality of care in this nation's nursing homes and summarizes the outrage that should be present over such a bill:

Clearly, there are some serious deficiencies in the quality of care offered by some of our nursing homes that need to be addressed. Why, then, would we want to severely limit one of the only means of recourse for families who find that their loved ones have been neglected and/or abused? That's what this legislation would do. It would make it harder for nursing homes to be held accountable for abuse or neglect.

The only means to make a nursing home accountable is to make them pay for their mistakes so that, in the future, maybe they won't make the same mistake twice if they know it will continually cost them. It is the only incentive to ensure your loved ones are properly cared for--every day. Without the threat of punitive damages, in particular, nursing home management will calculate the risk of reducing staff to lower levels, keeping records and doctor's orders with less caution and having an attitude of "this is just a business" even more. Make sure such bills do not become law. Call your State Representatives to oppose any such measures. Anything else will only contribute to the notion that the value of the lives of the elderly--and others who must live in nursing homes--are worthless. In this great country, we simply cannot allow that to happen. 

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 A man has been charged with abusing nursing home residents. Three patients were videotaped on the abuser's cell phone and had been seen by several witnesses before they were erased. Read the full article here. The saddest part of this situation is that most residents are not in a condition to even report such abuse due to dementia and other similar situations. In fact, it took the wife of one resident to complain to police and according to a court affidavit:

the elderly male victim repeatedly complained that Pearl stripped off his clothes and touched him inappropriately, spit in his face and threatened to hurt him

The victim has trouble sleeping now and can't even calm down. Nursing home residents are guaranteed certain rights in their care but family members must monitor the care and condition of their loved ones to assist in preventing these situations. If you believe a loved one has been abused or neglected, contact us immediately to protect their rights.

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A doctor, a nurse and a pharmacist have been criminally charged in connection with drugging some 22 nursing home residents with psychotropic medications simply to make them more tranquil. Read the article here. The article notes that 3 people may have died and one suffered great injury as a result. The attorney general noted:

'These people maliciously violated the trust of their patients, by holding them down and forcibly administering psychotropic medications if they dared to question their care" . . . 'This is appalling behavior, which amounts to assault with a deadly weapon.'

Laws protect nursing home residents from abuse and neglect; however, the only way to determine if such is even happening is to communicate often with your loved ones. Ask questions. Ask their neighbors questions. Ask the staff how your loved one is. Review their medical records and nurses notes when you can to determine if they are receiving the care, medications and attention required. If not--get them out of the home!

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An Itasca-area nursing home called The Arbor of Itasca has been sued after an 89-year-old woman, who suffered from dementia, was found frozen to death in the nursing home courtyard. Read the full article here. According to the coroner, the woman was outside for at least 90 minutes. Her family noted that she wasn't even able to leave her bed without assistance and doesn't understand how staff allowed her to slip out unnoticed. Striking to the very heart of the matter, one of the woman's daughters stated simply:

This just can't be allowed to happen to anybody. Nobody should have to die like that.

Under the Illinois Nursing Home Care Act, a facility cannot abuse or neglect a resident. See 210 ILCS 45/2-107. "Neglect" means a failure in a facility to provide adequate medical or personal care or maintenance, which failure results in physical or mental injury to a resident or in the deterioration of a resident's physical or mental condition. See 210 ILCS 45/1-117. "Abuse" means any physical or mental injury or sexual assault inflicted on a resident other than that by accidental means in a facility. See 210 ILCS 45/1-103. Violation of the act can result in damages, including attorney's fees, being awarded. See 210 ILCS 45/3-602. Know the facility that you check your loved ones into and investigate, investigate, investigate before entrusting your family members to any facility.

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A recent article pointed out life inside one of Illinois' "one-star" nursing homes. Notably, when inspectors arrived they found:

The lobby smelled of urine. In one room, they found a 97-year-old woman, lying in her own waste. She had severe bruises on her arm, foot and both legs that the staff could not immediately explain. Another resident had a bed sore larger than a golf ball and dripping blood.

It was also noted that an obese man suffocated after getting stuck between a mattress and side rails and the State of Illinois fined the facility $50,000 for the death--noted as one of of the largest nursing home penalties in the state last year.

In my earlier posts, I stress often that when placing a loved one in any nursing facility, do your due diligence. Check the ratings system. Check the Illinois Department of Public Health. Ask questions of the staff and visit the facility at various times. There is no reason that any resident should ever suffer through these issues.
 

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The son of a man who died from thirst in a nursing home has filed a lawsuit against the nursing home. Read the full article here. According to an investigation by the Department of Health, staff noticed the man undergo weight loss but didn't notify doctors. The Department of Health found the nursing home be in neglect. When sending loved ones to nursing homes, investigate the nursing homes for past instances of neglect. Check the new Medicare site for ratings here, the local state department that regulates nursing homes (in Illinois here) and ask many, many questions of the staff and administration before admitting a loved one.

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The Centers for Medicare & Medicaid Services ("CMS") has just launched "Nursing Home Compare" which provides quality ratings for each of the nation’s 16,000 Medicare and/or Medicaid-certified nursing homes. The rating system is a five-star system based on health inspection results, quality measures, and staffing levels and an overall rating is also provided. Visit the rating system here. CMS suggests using these ratings along with other information to get a true picture about any particular nursing home. 

The nursing home industry may be concerned about the system. According to one article, the rating results are as follows:

About 22 percent of the nation's nearly 16,000 nursing homes received the federal government's lowest rating in a new five-star system unveiled Thursday, while 12 percent received the highest ranking possible.

792 nursing homes in Illinois have been rated here. Families should take into account this information before sending a loved one to any Illinois facility but also review other sources of information to determine the level of care and attention loved ones should receive.

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A former nursing home director was sentenced to 19 months in prison and 3 years of probation for neglecting a 60-year-old woman. For the full article, click here. According to the article, the resident was in agony for 5 days before staff called an ambulance. Apparently, aides had dropped the resident while moving her into her bed. Unbelievably, the nurse waited 5 days before ordering X-rays:

despite multiple reports from different staffers that [the resident] was screaming or crying in pain.

The resident died after surgery. The family filed a $3.5 Million dollar civil lawsuit which has tentatively and confidentailly settled.

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A certified nursing assistant has been indicted for felony abuse of a nursing home resident in Jackson, Mississippi and was arrested Monday, December 8, 2008. For the full article, click here. According to the article, the attorney general noted that:

she struck the patient -- an elderly woman -- in the eye, causing pain and suffering...

Residents have rights to be free from such abuse and neglect. If your loved ones have suffered any such abuse or neglect, contact an attorney immediately.

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Some Illinois County coroners would like to see a new law requiring nursing homes to report every death for investigation into potential abuse or neglect. For the full article, click here. According to the article, the Illinois State Department of Public Health conducted a pilot project in 10 Illinois counties over the course of a year to determine whether a policy to investigate nursing home deaths by a coroner should be applied to all 102 counties in the State. However, the study has not resulted in any anticipated lobbying for new legislation. Notably though the study showed:

an 11 percent increase in nursing-home complaints filed with the state by coroners and all other sources.

Some counties have noted that such a law would require more funding, including Cook County, in which Chicago is located. The article pointed out that in large counties such as Cook, coroners and medical examiners look into nursing home deaths only after they receive complaints from family members or if criminal activity is suspected. This is where Plaintiff's lawyers step in--if nobody else has the funding or energy or responsibility for uncovering the truth of how nursing home residents are treated, a lawyer will.

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Two teenagers working at a nursing home were recently charged with abusing residents in a Minnesota nursing home and four others for failing to report the incidents. They were charged with poking, taunting and groping vulnerable residents according to the article in the Grand Forks Herald. Sadly, it was noted:

The Minnesota Department of Health released a report in August showing that 15 residents with Alzheimer's disease or other dementia disorders were abused at the facility between Jan. 1 and May 1.

Your loved ones deserve respect and dignity where they are living out the remainder of their lives. Interrogate staff and the nursing home management about the people who will be caring for your loved ones.

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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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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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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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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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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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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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