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

The continuing trend by national institutes tasked with examining the data surrounding auto accidents recently culminated with the National Transportation Safety Board ("NTSB") making an across the board recommendation that all cellphone use be banned while driving.

The Chicago Tribune's examination of the conversation surrounding this proposal in Illinois seemed to indicate that it was unlikely that such a proposal would gain serious traction, due to its harsh tone and difficulty to enforce. Yet more research data recently released indicates that the problem may have more practical effect than initially meets the eye.

Time Magazine recently reported here that a study by the National Highway Traffic Safety Administration showed a 50% increase in text messaging while driving.

What makes these figures particularly troubling to personal injury attorneys is that they are potentially part of a much larger problem. Traditionally,factors such as driving in a hurry, not watching the road, and focusing attention on something other than the road are each factors where one of which, standing alone, can be the cause of an accident and a subsequent lawsuit. Texting or emailing while driving can encompas each of these factors all in one simple act. And with studies such as those mentioned in Time suggesting that this practice is on such a rapid rise, one can only assume that it has the potential to get worse. In any case, these studies present all the more reason to keep a constant lookout for the other drivers on the road.

Have a safe and accident-free holiday. In the unfortunate event you are involved in an accident, obtain all the information possible immediately at the scene and take notes (if you can--get to the doctor or hospital first and foremost though if you are injured). Then contact an attorney immediately to preserve your rights. Do not talk to any insurance people without an attorney present. You can contact us here 24/7/365-even over the holiday weekend any time (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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Millions more cars will be on the road from Wednesday through Sunday / Monday this Thanksgiving - as expected as these are some of the busiest days of the year. That means everyone should be much more vigilant and cautious when driving.

Drunk driving is especially worrisome during the holiday times. Fatalities often rise over the holidays. Don't drink and drive!

Thanksgiving Travel Safety Tips:

1) Be mindful of the weather -- while not as frigid and icey as the holiday season ahead of us, Thanksgiving is still known, nonetheless, as a beacon of nasty weather. Fortunately for those remaining in the Chicagoland area, the forecast for the next few days calls for clear (but cold) conditions. For those traveling outside the area, be sure to check the applicable weather reports, as the congested traffic conditions mixed with unexpected bad weather can make holiday travel a miserable experience.

2) Check your brakes and tires before you leave -- not only is this step useful at any time (faulty brakes are cited in almost every auto accident victim's complaint as a cause of negligence), this is particularly necessary during the Thanksgiving holiday weekend, since it is one of the first instances of real, genuine cold weather. Whenever the temperature drops drastically, tire pressure has a tendency to drop as well, leading to increased instances of flats and tire blowouts.

3) Leave plenty early -- as any personal injury attorney will tell you, drivers in a hurry to reach their destination are far more likely to get into an accident. Throw in unnaturally heavy traffic conditions and poor weather conditions, and the potential problem only becomes worse. 

4) Avoid distractions at all costs -- heavy traffic, long hours on the road with no sleep, unruly passengers, the temptation to multitask to make up for lost time and eat or groom yourself while driving -- the possible distractions on this weekend in particular are endless, and each of them increase the likelihood of an accident significantly. 

Have a safe and accident-free holiday. In the unfortunate event you are involved in an accident, obtain all the information possible immediately at the scene and take notes (if you can--get to the doctor or hospital first and foremost though if you are injured). Then contact an attorney immediately to preserve your rights. Do not talk to any insurance people without an attorney present. You can contact us here 24/7/365-even over the holiday weekend any time (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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On Friday, November 11, 2011, numerous people were injured when a CTA bus struck a light pole at approximately 4:00 p.m. at 95th and Cottage Grove in Chicago, Illinois.

Bus drivers and bus companies owe their passengers a duty of care to avoid causing injuries to their passengers and situations can turn into severe hazards and extraordinary damages when an accident occurs involving such a large vehicle.

As stated previously by us in another posting, the law requires bus drivers--like other motorists--to exercise due care and caution and to follow the "rules of the road" and Illinois law so that a lawsuit for negligence will not be brought against him/her/them for some or all of the following (but not necessarily limited to):

• Carelessly and negligently operating, managing, maintaining, and/or controlling a vehicle;

• Carelessly and negligently operating a motor vehicle at a rate of speed which was greater than reasonable and proper with regard to traffic conditions and the use of the highway, or which was greater than the applicable speed limit established in violation of the revised Statutes of the State of Illinois;

• Carelessly and negligently failing to equip a motor vehicle with proper brakes although such a device was necessary to insure the safe operation of the vehicle;

• Carelessly and negligently failing to keep a proper lookout and to stop or alter the course of a motor vehicle to avoid striking the vehicle (or a light pole or anything that can cause injuries); and/or

• Being otherwise careless and negligent (simply not paying attention).

If you are in a crash such as this with a CTA bus or any other type of crash, the Illinois Secretary of State has a checklist it suggests here:

Crash Checklist

If you are involved in or come upon a traffic crash:

• Stop your vehicle in a safe, well-lighted public place.

• Help an injured person if necessary or requested. First, protect the person from traffic, then cover the injured person for comfort and to avoid shock. Do not move an injured person unless absolutely necessary. Do not attempt to give first aid unless you have been trained in it. Call 911 immediately.

• Someone should warn other drivers, using flares if available.

• Ask all those involved for their names, addresses, phone numbers, driver’s license numbers and license plate numbers.

• Notify the nearest police station as quickly as possible.

Further, make sure your children are safe and secure and if you are in an automobile accident or an accident such as this with a CTA bus as a passenger, get all the information possible immediately and take notes. Then contact an attorney immediately to preserve your rights. Do not talk to any insurance people without an attorney present. 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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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 insurance laws in Illinois, starting with 625 Illinois Compiled Statutes (or "ILCS" in lawyer lanugage) 5/7-601 sets forth the basic ground rules, noting:

No person shall operate, register or maintain registration of, and no owner shall permit another person to operate, register or maintain registration of, a motor vehicle designed to be used on a public highway unless the motor vehicle is covered by a liability insurance policy.

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Generally speaking, it is everyone's goal to settle a case without a drawn-out lawsuit that can take years to prosecute and consume massive amounts of time and resources for all.

One of the biggest myths about the settlement process, however, is that as soon as the two sides come to an agreement, the client can expect the check the next day -- usually not true.

Unfortunately, due to the many parties, medical providers, insurance companies (yours, the defendant's insurance company, health insurance companies and others) and others involved in a lawsuit, it can often take a good deal of time before the client actually receives their check--maybe even a year or more. Let's say that you were the victim of an auto accident that is fortunate enough to settle without going to trial. The first thing that needs to happen is that the defendant's insurance company will send over a sometimes lengthy contract called a "Release," where the insurance company / defendant agrees to pay you the agreed-upon sum only if you agree to drop the lawsuit (or never file one). These "Releases" are often complex-worded documents that cover everything from the parties' liabilities to who will pay for any medical bills that arise in the future (almost always, this will be the plaintiff).

After this process, the next step is for any public assistance programs such as Medicare and Medicaid to recover any money they have spent -- this is a long and frustrating process for attorneys, more on these to come and we can literally write an entire book on these two entities and their unique processes to obtain their money -- which can, unfortunately, take up to several months or a year or more to work out.

Then, anyone else classified as a "lien holder" will have the opportunity to make a claim from the proceeds -- this includes doctors and hospitals that have unpaid bills relating to the accident and other similar expenses and even your own insurance company who has paid any medical bills and other costs. These "rights" to collect money when money is paid already are often referred to as "subrogation rights" meaning your insurance company has the right, by law, to "step into your shoes" and sue the person responsible for causing the bills in the first place. While this is a high-level overview, we can also right a book on subrogation rights. 

Then, and only then, do the client and attorney get to cash in the check. This process can often be frustrating, considering the length of time that it can take, but it is important to keep this in mind from the beginning of the process. The financial ins and outs of lawsuits are complicated matters that sometimes take on a life of their own and is only part of the process that an attorney can help you with. 

Most importantly, if you try to handle this aspect of a case yourself, you can easily find yourself subject to paying back the bills yourself if not properly handled due to laws and regulations that apply differently in each situation.

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 that all of your liens and subrogation issues are handled correctly. 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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Studies conducted by the National Highway Traffic Safety Administration ("NHTSA") show that 35% of all traffic fatalities in 2009 were caused by drivers that were legally drunk.

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The issue of collecting payment after you've obtained a judgment or verdict has two main forks in the road - the first of which is an insurance issue. In auto accidents, for example, the defendant will have an insurance policy that will pay out some, if not all, of your judgment. Often, we have had to chase even the insurance companies to collect many months after settlment, verdict or judgment.

Even when a judgment is collected, however, doctors, hospitals and other medical providers such as X-Ray and MRI companies may have what are known as "liens" on the money collected. Liens essentially "freeze" the money from being disbursed to anyone until they can be negotiated and released. Sometimes Medicare, for example, will have a lien (actually called the "Super Lien" as no written notice is even required!) and Medicare may take 6 months to maybe 1.5 years or more to resolve!

On the other hand, when a defendant either has no insurance or has a staggeringly low insurance policy, or a claim that is "outside the scope of insurance," (for instance, where you would sue someone for assault and battery, an employment-related dispute, or something else in an area that traditionally falls outside most insurance coverage), a successful plaintiff will have to seek to recover judgment from the defendant individually, which becomes a tricky subject.

Most people don't simply have, say, $50,000 sitting around for a rainy day for the far-out possibility that they may one day lose a lawsuit. What happens, then, if the defendant simply refuses to pay? Debtor's prison was abolished, we believe, over one hundred years ago and a judge will not send someone to jail for failing to participate in a lawsuit, and similiarly, a judge will not throw someone in jail for failing to pay on a judgment.

In instances like these, your lawyer must dig a little deeper and bring the court back into the mix. Some of the main options to attempt collection of a judgment (although there are certainly other options) are to bring a motion forcing the defendant to disclose all of his personal assets -- as a means to bring to light that perhaps he can really pay the judgment. This is generally known as a "Citation to Discover Assets."  Next, a plaintiff could bring a motion for the court to garnish the defendant's wages -- this essentially sets up a payment plan where the defendant can keep enough money each month to live on, but must pay you in regular installments. Further, a plaintiff could freeze certain assets such as a bank account -- basically, this option prevents the defendant from making any money transfers.

Unfortunately, an attorney cannot guarantee that a defendant will pay the money they owe and even if collection efforts are made, a defendant could always declare bankruptcy and then the plaintiff will usually receive very little or nothing. Stated simply, a judgment debt is a big deal -- it can ruin someone's credit rating, it can collect interest at a rate of about 9% per year, and a good attorney can even get it registered with the Recorder of Deeds where it will come up (interest included) every time the defendant attempts to borrow money, purchase a house, or conduct business that involves taking out a personal loan. The point of the matter is that a good attorney will exhaust every possible option to obtain their client's rightful reward.

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 that your judgment and verdict will be pursued or how, as a defendant, we may be able to help you resolve these issues (yes -- we actually help both plaintiffs and defendants). 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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For reasons that may be fairly straightforward, the importance of a client's medical records and bills in a personal injury case cannot be overstated. In all but the rarest of situations, medical bills will make up the bulk of a plaintiff's total damages.

A plaintiff's medical records hold the key to the essence of the case, as understanding the medical records will illustrate what the plaintiff's injuries are and, perhaps more importantly, what the plaintiff's injuries may be in the future (known as the "permanency" factor in these matters).

Lawyers are not medical doctors, and reading and understanding medical records is an exceedingly difficult task and often requires an expert or the Plaintiff's treating physician (or multiple physicians) to testify for the jury to understand and hear such evidence.

As anyone who has ever suffered an injury or illness that required a hospital stay can attest, doctors' reports are often dense, highly technical documents that do not translate well to plain English. So the question arises, then, of just how an attorney, who likely does not fully comprehend the medical documents himself, translates these documents for a jury.

There are a number of ways to accomplish this task. Sometimes, the best way to present medical evidence to a jury is through the client himself. It should be mentioned at this point that the only way to introduce the actual medical records (doctor's notes, x-rays, etc.) is through the doctor himself (more on this topic later). This is not a hard-and-fast rule, however, as a plaintiff will likely wish to call a doctor to testify for a complex, serious injury. Generally speaking, however, a plaintiff can testify to how he felt, what he saw, and how things have affected him, and following this logic, he can testify to the basics of his own condition; however, plaintiff's are not allowed to give medical opinions since a plaintiff is not qualified to give medical opinions.

Stated otherwise, it doesn't take a doctor to testify that the plaintiff broke their leg in a car accident -- the inference to be drawn is clear, and the testimony can be based solely on personal knowledge. However, how a back injury turned into, or evolved into, a more serious back injury as a result of a car accident may be considered an opinion that only a qualified expert (a doctor) can present to the jury.

As to bills, a client can testify to the amount of any bill that has already been paid for. If unpaid, the rules of evidence will require a doctor or record keeper to come to Court and testify as to the making of the bill, its reasonableness and other technical aspects of the bill to essentially verify that the bill is proper under the facts and circumstances of each particular situation. Without such testimony for bills -- whether paid or unpaid -- the jury would not be allowed to consider a plaintiff's bills in awarding any amount of money.

A skilled trial attorney will ensure that all of your medical bills and records are complete and turned over to the opposing attorneys long before trial and will ensure that a doctor or other form of testimony will be presented for the jury to hear the evidence and for the Court to accept the evidence. Without this critical evidence and proper presentation, your case could become worth very little, or even worthless. 

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 that all of your medical records and bills "make it into 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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One of the first questions many clients have when discussing their legal rights is what can be done about the time at work they were forced to miss after an injury. This is a particularly pressing concern during difficult economic times such as these -- many individuals cannot bear the financial strain of missing a long stretch of work due to injuries, particularly those that were someone else's fault, and the harsh reality is that many workers return from an absence due to injury and find that their jobs are no longer waiting for them.

A lost wages claim is an essential part of any lawsuit. A skilled -- and prepared -- trial attorney will be sure to include it in your claim.

These claims are often highly contested between attorneys. The injured party has the burden of proof to prove wages were actually lost. The best way to go about proving these claims for lost wages will be through the testimony of the plaintif herself. But testimony alone will not be enough to state a successful claim, however, and documentation of proof is generally alway required. In fact, Illinois law essentially requires a plaintiff to produce tax returns from the year before the accident, the year of the accident, and the year after the accident -- or, sometimes, the W-2s or other tax and / or income documentation.

What this documentation does is give the court and jury a snapshot of what the plaintiff lost by not being able to work. For example, the tax returns from year before the accident generally demonstrates what the plaintiff was making while healthy, the returns from the year of the accident generally illustrate the specific drop-off from the year of the accident itself, and the returns from the year after the accident may show what the plaintiff is capable of earning in her present state. Every situation is different of course and no two cases may perfectly reflect a scenario via tax returns. Sometimes an expert such as an economist, vocational expert, tax attorney, tax preparer or Certified Public Accountant (CPA) may be necessary to prove lost wages--especially significant losses and losses that may be permanent.

In any event, a skilled -- but more importantly, prepared -- trial attorney will be sure to press for your lost wage claim. Preparedness is critical because at trial time, if an expert is not disclosed or properly prepared to testify for a significant wage loss, your wage loss claim will be disallowed or "barred." Be sure to discuss this in detail with your attorney in an injury claim and ask the "hard questions" as to how that wage claim will be proved.

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 "prepared" 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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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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When a case goes to trial, it is often the case that some of the most important events happen behind closed doors, away from the jury and even away from the client.

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It is one of the hallmarks of our judicial system that everyone is entitled to the same level of fairness in their access to the courts as everyone else. But sometimes, people are afraid to pursue their rights because they are afraid that things they have done in their past--particularly crimes--may be used against them.

For the first time, however, Illinois has joined the majority of states in enacting procedures to clarify what aspects of your criminal record can and cannot be used against you in a civil case. These issues are covered by Illinois Rule of Evidence 609, which came into effect on January 1, 2011.

Generally speaking, evidence of prior criminal convictions can only be brought up in a civil case to challenge your credibility as a witness - and regardless of what type of crime this is, only a conviction (or release from custody, whichever is more recent) within the last ten years is fair game.

From there, the Rule separates the use of convictions into 2 categories - misdemeanors and felonies. Misdemeanors can only be used against you if it is a crime involving dishonesty.

Generally speaking, any felony from within the last ten years can be used to challenge your credibility, but in order for this to be true, it has to pass a test for relevancy. What this means is that a Judge weighs how useful the conviction really is in challenging someone's credibility against how harmful it would be to let a jury hear about a felony that doesn't really have anything to do with truthfulness. Take a felony drug conviction, for instance - does the fact alone that it is a felony mean that it can be used to challenge someone's credibility? Not in Illinois, at least. Illinois courts in cases such as the 1995 matter of O'Brien v. Sandrock have found that a prior felony drug conviction has little or nothing to do with someone's ability to tell the truth, and even though it is a felony, the stigma it carries with it tips the scales in favor of refusing to let an attorney question you with it.

A skilled lawyer will know how to bring this to a judge's attention at the right time before trial and keep any mention of it from trial in what is called a "motion in limine" to protect their client's rights in the process and to prevent the jury from hopefully ever hearing about criminal past out of fairness for the issues at hand.

We can answer questions like these for you and help you through such matters - and would be honored to so do. 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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Reports are coming in of car crashes in the area during one of the worst blizzards in the Chicago and surrounding suburbs' recorded history. Numerous motorists were also stranded on Lake Shore Drive.

Streets are closed and others are near unable to be traveled upon. Still, the duties of a motorist remain. In fact, no matter the weather, Illinois motorists are still required to follow the "rules of the road" and Illinois law so that a lawsuit for negligence will not be brought against him/her/them for some or all of the following (but not necessarily limited to):

• Carelessly and negligently operating, managing, maintaining, and/or controlling a vehicle;

• Carelessly and negligently operating a motor vehicle at a rate of speed which was greater than reasonable and proper with regard to traffic conditions and the use of the highway, or which was greater than the applicable speed limit established in violation of the revised Statutes of the State of Illinois;

• Carelessly and negligently failing to equip a motor vehicle with proper brakes although such a device was necessary to insure the safe operation of the vehicle;

• Carelessly and negligently failing to give proper warning of the approach of a vehicle although such warnings were necessary to ensure the safe operation of the vehicle;

• Carelessly and negligently rear-ending another’s vehicle;

• Carelessly and negligently failing to keep a proper lookout and to stop or alter the course of a motor vehicle to avoid striking the vehicle; and/or

• Being otherwise careless and negligent.

If you are in a crash, the Illinois Secretary of State has a checklist it suggests here:

Crash Checklist
If you are involved in or come upon a traffic crash:

• Stop your vehicle in a safe, well-lighted public place.
• Help an injured person if necessary or requested. First, protect the person from traffic, then cover the injured person for comfort and to avoid shock. Do not move an injured person unless absolutely necessary. Do not attempt to give first aid unless you have been trained in it. Call 911 immediately.
• Someone should warn other drivers, using flares if available.
• Ask all those involved for their names, addresses, phone numbers, driver’s license numbers and license plate numbers.
• Notify the nearest police station as quickly as possible.

Further, after a crash, Illinois law requires reports (and so do many municipalities) such that, according to the Illinois Secretary of State (emphasis added):

"Regardless of fault, a crash report must be filed by the driver of a vehicle if the crash involves death, bodily injury or property damage of more than $1,500. (If any vehicle involved in the crash is uninsured, a report must be filed for $500 or more.)"

And the Illinois Secretary of State also states:

• Notify the police immediately. Many towns and cities require a report if a crash occurs within their limits. Therefore, if an officer is not at the scene of the crash, a report must be made at the nearest police station as soon as possible. If in a rural area, the county sheriff or Illinois State Police must be notified. If the driver is unable to make the report and there is a passenger, the passenger must make the report.

• A report also must be made to the Illinois Department of Transportation. This confidential report must be sent no later than 10 days after the crash. The form may be obtained from a police officer or automobile insurance agency.

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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On January 20, 2011, we brought a suit against the State of Ilinois, Illinois Department of Corrections and Illinois' Department of Central Management Services (among others) alleging a four-car accident.

It is alleged that one of the two drivers named

struck Defendant Washington’s vehicle pushing it into Plaintiff’s vehicle and pushing Plaintiff’s vehicle into Defendant Brown’s vehicle and fled the scene; however, witnesses identified the [Illinois] State vehicle by license plate and/or description tracking back said vehicle to the State of Illinois.

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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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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If you or a loved one has taken Avandia® and you believe you have suffered a heart attack or other medical issues as a result, contact us here immediately or submit a form here for a free case evaluation here and we will talk to you about your case or let you talk with another Avandia Heart Attack Attorney

The FDA is set to add severe restrictions to the prescribed use of Avandia for treating Type 2 diabetes patients in the United States. The drug will no longer be widely available in Europe or the United States after research has shown its increased link to heart attacks and other cardiovascular problems. 

Avandia is a diabetes control medicine that is made by GlaxoSmithKline. It is made in several formulations, either as a standalone medicine or combined with other drugs such as metformin. Avandia works by targeting fat cells and making them more responsive to insulin, which in turn should either allow the body to function normally or at least require smaller doses when performing insulin injections.

However, there has been a steadily and rapidly increasing amount of concern about Avandia and its potential side effects. Since approximately 2007, the FDA has been investigating the matter and has issued periodic findings and decisions for consumers. It previously was reported that GSK hid data that linked Avandia to heart complications when the company conducted a study that compared Avandia to the competing drug Actos which is made by Takeda.

In 2009, the FDA issued a safety alert pertaining to Avandia. The alert was careful to stress that the data gathered up until that time had not been conclusive or decisive in illustrating the safety risks of Avandia. However, the studies that had been viewed suggested at least a partial link between taking Avandia and developing serious cardiac complications. Patients taking Avandia who either had a history of heart complications or who had begun exhibiting new symptoms were encouraged to speak to their physicians as soon as possible if they had any concerns.

One study estimated that from 1999 to 2009, more than 47,000 people who were taking Avandia suffered a heart attack, stroke, heart failure or actually died. All of these problems would not have happened if the patient wasn't taking Avandia.

As of 2010, the FDA's investigations into Avandia are still ongoing and for now, at least, the decision has been made to prevent new patients from taking the drug. However, patients that are already taking Avandia will not be required to stop. In particular, the FDA still is reviewing the data from the largest investigation into Avandia, called RECORD. There have been smaller observational studies that have looked at side effect rates among those that were prescribed Avandia.

So far, the FDA has limited its restrictions to asking GSK to include a boxed warning (as of 2007) that explains the potential heart complications that may arise from taking Avandia, but it has not asked GSK to take any action such as pulling Avandia from the shelves of stores despite numerous lawsuits and settlements that currently are being attributed to the drug.

We seek compensation for past and future medical expenses, past and future wages, pain and suffering, disability and other damages for injuries from situations such as these. We also represent family members in wrongful death cases. Call us to discuss. We would be honored to represent you or your loved ones.

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On October 1, 2010, numerous news articles were released regarding the recently-discovered Syphilis experiment or "study" in Guatemala on unknowing mental health "participants." Apparently, according to the numerous news articles including one from the Chicago Tribune found here where the doctor involved in the infamous Tuskegee experiment on African-American males in Alabama in the 1970s, Dr. John C. Cutler, and the National Institutes of Health, among other United States governmental organizations and the Guatemalan government, itself, knowingly participated and/or approved of the experiment on unknowing victims.

The United States apologized on Friday. President Barack Obama, himself, apparently expressed an apology to Guatemalan President Alvaro Colom as did U.S. Secretary of State Hillary Rodham Clinton. The National Institutes of Health Director Francis Collins called the Tuskegee and Guatemalan studies:

a dark chapter in the history of medicine

According to the news articles, Wellesley College Professor Susan Reverby was responsible for uncovering the evidence of the experiment to infect people with Syphilis in an effort to explore treatments. Professor Reverby's Synopsis on  "'Normal Exposure' and Inoculation Syphilis: A PHS 'Tuskegee' Doctor in Guatemala, 1946-48" published in the Journal of Policy History, Special Issue on Human Subjects, in January 2010 can be found on Professor Reverby's web site here. 

Decades ago, a civil rights lawsuit was filed on behalf of victims and families involved in the Tuskegee Syphilis study on African-American males in Alabama against the United States and other governmental organizations. If you believe you or a loved one may have been affected by this newly-uncovered Guatemalan Syphilis study from the 1940s, contact us here immediately to discuss the situation. If we can determine that we can help you or your loved one, we would be truly honored to be an advocate for something so reprehensible and try to bring a sense of peace and justice to all.

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If you or a loved one has taken Paxil® during pregnancy, and your child has suffered a birth defect, contact us here immediately or submit a form here for a free case evaluation here and we will contact you and specifically about Paxil cases involving the following birth defects:  ventricular septal defect (“VSD”) (so-called hole in the heart), atrioventricular septal defect (AVSD), any heart defect, omphalocele, craniosynostosis, anencephaly (causing still born birth), "spina bifida" (so-called Neural Tube Defects), Anal Atresia, any limb defects – club foot, ear malformation, etc., and other birth defects.  

We will talk to you about your case or let you talk with another Paxil Birth Defect Attorney

What is Paxil?

Paxil®

Paxil® (paroxetine) is one of a class of medicines called Selective Serotonin Reuptake Inhibitors (SSRIs). Paxil was first approved in the United States on December 29, 1992, for the treatment of depression. Paroxetine is available as Paxil®, Paxil CR®, Pexeva®, and generic paroxetine hydrochloride. It is manufactured by GlaxoSmithKline.

What Injuries Can Paxil/Other SSRI’s Cause?

Since September, 2005 information has been coming out that Paxil may cause birth defects, including cardiac (heart), pulmonary (lung), neural-tube defects (brain and spinal cord), craniosynostosis (abnormally shaped skull), infant omphalocele (abdominal wall defects), club foot (one or both feet turn downward and inward), and anal atresia (complete or partial closure of the anus).

The FDA issued an alert in July 2006 warning about the increased risk of Neonatal Persistent Pulmonary Hypertension (PPHN) by mothers taking SSRI antidepressants such as Celexa (citalopram), Fluvoxamine, Lexapro (escitalopram), Paxil (paroxetine), Prozac (fluoxetine, Symbyax (olanzapine and fluoxetine) and Zoloft (sertraline).

What is Neonatal Persistent Pulmonary Hypertension (PPHN)? 

In the womb, the pathway of your baby's blood circulation is different than it is after birth. In the uterus, a baby's circulation bypasses the lungs, and instead the placenta, through the umbilical cord, serves as the organ of gas exchange. The pulmonary artery - which, after birth, will carry blood from the heart to the lungs – in utero sends blood directly back to the fetal heart through a fetal blood vessel called the ductus arteriosus.

When a baby is born and begins to breathe air on their own, the baby’s circulatory system
is shifting from the placenta to the lungs serving as the organ of gas exchange. The pressure in the lungs changes as air enters and inflates the lungs. Because of this, the ductus arteriosus, which previously supplied the fetal heart with blood, closes for good. Blood returning to the heart from the body can now be pumped into the lungs, where oxygen and carbon dioxide are exchanged. The blood is then returned to the heart and pumped back out to the body in an oxygen-rich state.

A dramatic cardiopulmonary transition occurs at birth, characterized by a rapid fall in pulmonary vascular resistance (PVR) and pulmonary artery pressure and a 10-fold rise in pulmonary blood flow. In some newborns, however, the normal decrease in pulmonary vascular tone does not occur, and the result is persistent pulmonary hypertension of the newborn (PPHN).

In a baby with PPHN, the fetal circulatory system doesn't "switch over." The ductus arteriosus remains open, and the baby's blood flow continues to bypass the lungs. Even though the baby is breathing, oxygen in the breathed air will not reach the bloodstream. Because the blood returning from the body is unable to enter the lungs properly - and instead flows through the still-open ductus arteriosus - it returns to the heart in an oxygen-depleted state.

What are atrial and ventricular septal defects (VSDs) of the heart?

A ventricular septal defect (VSDs) is a defect in the ventricular septum, the wall dividing the left and right ventricles of the heart. In other words, VSDs are holes in the walls of the chambers of the heart.  A VSD can be detected by cardiac auscultation. Normally, a VSD causes a pathognomonic holo- or pansystolic murmur. VSDs can be diagnosed by non-invasive cardiac echocardiograms.

Atrioventricular septal defect (AVSD) or atrioventricular canal defect (AVCD) is characterized by a deficiency of the atrioventricular septum of the heart.

If there is a defect in the septum, it is possible for blood to travel from the left side of the heart to the right side of the heart, or the other way around. Since the right side of the heart contains venous blood with a low oxygen content, and the left side of the heart contains arterial blood with a high oxygen content, it is beneficial to prevent any communication between the two sides of the heart and prevent the blood from the two sides of the heart from mixing with each other.

AVSDs can be detected by cardiac auscultation as they cause atypical murmurs and loud heart beats.  VSDs also can be diagnosed by non-invasive cardiac echocardiograms.

What are the abdominal birth defects associated with Paxil and other SSRIs?

GlaxoSmithKline (“GSK”), maker of Paxil, sent a letter to doctors and healthcare professionals in September, 2005 advising them of a Paxil label change that, according to data obtained from the National Birth Defects Prevention Study of infants, women who took an SSRI-antidepressant were more likely than those who were not exposed to have an infant with omphalocele, which is an abnormality in newborns in which the infant's intestine or other abdominal organs protrude from the navel. The strongest effect was reported to be with Paxil, paroxetine, which accounted for 36% of all SSRI exposures.

An omphalocele is a type of abdominal wall defect in which the intestines, liver, and occasionally other organs remain outside of the abdomen in a sac because of a defect in the development of the muscles of the abdominal wall. The omphalocele can be mild, with only a small loop of intestines present outside the abdomen, or severe, containing most of the abdominal organs. In severe cases surgical treatment is made more difficult because the infant's abdomen is abnormally small because it had no need to expand to accommodate the developing organs. The presence of an omphalocele is often associated with cardiac defects.

What is Craniosynostosis?

Craniosynostosis is a condition in which one or more of the fibrous sutures in an infant skull prematurely fuses. This results in restricted skull and brain growth. Because the brain cannot expand in the direction of the fused suture, it is forced to grow in the direction of the open sutures, often resulting in an abnormal head shape and facial features.

In an infant, the skull is not one solid bone, it is bony plates separated by fibrous sutures. The infant's skull consists of the metopic suture, coronal sutures, sagittal suture, and lambdoid sutures. These sutures allow the skull to expand as an infant's brain develops. Over time these sutures eventually fuse into the solid skull.

Surgery is typically used to separate the fused sutures of the skull as well as to reshape the skull. To treat the cosmetic troubles, a combination of orthodontic and orthognathic surgery can be used to relieve some of the midface deficiency.

GSK - GlaxoSmithKline included in the September, 2005 "Dear Doctor" letter that the authors of the above study also found an association of exposure to any SSRI-antidepressant and giving birth to an infant with craniosynostosis (a congenital defect-present at birth. The connections between sutures-skull bones, prematurely close during the first year of life, which causes an abnormally shaped skull.)

Other Birth Defects

There is ongoing investigation by attorneys into a possible link between Paxil and birth defects such as:

Club Foot:  A recent study conducted by the Institute of Reproductive Toxicology at the University of Ulm, Germany and a recent study from the Slone Epidemiology Center at Boston University found that some women who took  SSRIs  throughout their pregnancy had children born with club feet. True Club foot is a malformation. The bones, joints, muscles, and blood vessels of the limb are abnormal. An infant with club foot has a foot that is inturned, stiff and cannot be brought to a normal position.

Neural Tube Defects: Neural tube defects (or NTDs) are birth defects of the brain and spinal cord. The two most common neural tube defects are spina bifida and anencephaly. In spina bifida, the fetal spinal column doesn't close completely during the first month of pregnancy. There is usually nerve damage that causes at least some paralysis of the legs. In anencephaly, much of the brain does not develop. Babies with anencephaly are either stillborn or die shortly after birth. Source: National Institute of Child Health and Human Development

Anal Atresia: Also called Imperforate anus, anal atresia is a congenital malformation in which the normal perforation we call the anus, is absent.  The end of the intestinal tract has not perforated the skin in the perineal area. Atresia is the absence of a normal opening or failure of a structure to be tubular.

Links:

FDA Advising of Risk of Birth Defects with Paxil:  Agency Requiring Updated Product Labeling (FDA news release, September 8, 2005): 

http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/2005/ucm108527.htm

information concerning today's announcement is available on FDA's Web site at:

Public Health Advisory: http://www.fda.gov/cder/drug/advisory/paroxetine200512.htm and

Click this link for Paxil Information from FDA: 

http://www.fda.gov/cder/drug/infopage/paroxetine/default.htm

News links:

National Briefing | Science And Health: Warning On Paxil (Nytimes 1/1/2006):
http://query.nytimes.com/gst/fullpage.html?res=9C03E1DA1E3EF932A35751C1A9609C8B63

Web MD:  New Study Links Paxil to Twice as Many Birth Defects as Other Antidepressants:
http://www.webmd.com/baby/news/20050927/paxils-birth-defects-warning-strengthened

Glaxo E-Mails Over Paxil Study Must Be Turned Over: http://www.bloomberg.com/apps/news?pid=20601085&sid=aOcgK5LorDgU

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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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I am often questioned how the Toyota cases will "end up" in the Court system. No way to tell yet. At least for the class action cases. A recent article by The Wall Street Journal here, said a decision is expected in weeks as to the class action "venue" or where the cases could be consolidated and heard by attorneys vying for the "rights" to lead the charge. 

Ben Barnow of Chicago, an attorney I co-counseled with on another class action years ago, was one of those attorneys who spoke before the "panel" in pleading for jurisdiction of the cases. Most notably was a speech given at lunch time in a "prehearing litigation strategy conference" of the 100 or so attorneys vying for the coveted few minutes to speak at the hearing, as the article represented, represented, by a former Michael Jackson defense attorney, Michael Geragos:

'Everyone in this room is on the precipice of the opportunity to expose the greatest corporate malfeasance,' said Mr. Geragos. 'I would hope everyone in this room could coalesce and come together.'

We are filing individual suits in certain circumstances that may never become part of these class actions and are working with numerous individuals who have experienced sudden, unintended acceleration--and are honored to be able to speak for these traumatized (and some injured) individuals. If you believe you have been injured or suffered any property damage as a result of a potential gas pedal sticking, call us at 312.375.6524 to discuss your particular situation 24/7/365 and we'll determine if we can help.

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In a breaking news story here on CNN, former in-house Toyota defense attorney, Dimitrios Biller, declares that he has some 6,000 internal Toyota documents that are "very damaging." According to the CNN article, Biller claims such documents were routinely withheld from Plaintiff's lawyers in product liability and negligence cases. 

Disturbingly, Biller says:

'There is a regular pattern and practice of not producing memos, minutes, reports, and e-mails,' [and] 'These documents can be used to establish liability against Toyota in product liability and negligence cases.'

One of our clients, Willette Green, reported her sudden, unintended acceleration to Toyota (and NHTSA) in the Fall of 2008 and Toyota denied any defect--a case involving the death of a panhandler who was run over when Willette's Lexus sped out of control. According to the CNN article, Toyota appears to have "Books of Knowledge" or "highly confidential information" related to such issues as sudden, unintended acceleration.

We are working with numerous individuals who have experienced sudden, unintended acceleration--and are honored to be able to speak for these traumatized (and some injured) individuals. If you believe you have been injured or suffered any property damage as a result of a potential gas pedal sticking, call us at 312.375.6524 to discuss your particular situation 24/7/365 and we'll determine if we can help.

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Today, I filed the second lawsuit in Chicago, Illinois (Cook County Case No. 2010-L-002399) on behalf of Willette Green against Toyota alleging strict liability and negligence. This one involved the death of a pedestrian and injuries to Plaintiff after her 2006 Lexus ES 330 was unable to stop.

The lawsuit alleges:

On August 26, 2008, the Plaintiff was involved in an automobile accident at or near the intersection of 22^nd Street and the feeder ramp from I-94 in Chicago, Illinois after her gas pedal—in the Lexus at issue and referenced herein—stuck and Plaintiff was unable to stop at the intersection, resulting in the death of a pedestrian, a crash with a third party, property damage and injuries to Plaintiff and others involved.

The lawsuit further alleges:

TOYOTA, by and through its agents, employees or representatives, was then and there guilty of one or more of the following careless negligent acts and/or omissions:

               

a.     carelessly and negligently designed, manufactured and sold the above-described Lexus;

b.     carelessly and negligently failed to institute and enforce a policy for review of the automobiles that it designs, manufactures and sells, including the aforestated Lexus, to insure that the Lexus and the vehicles are sold with adequate safeguards and controls; and

c.      was otherwise careless and negligent in the design, manufacture and sale of the above-described Lexus. 

The lawsuit further alleges:

The above-described Lexus was manufactured, sold and placed into the stream of commerce by the Defendant, TOYOTA, in an unsafe and defective condition and was unreasonably dangerous to its users by reason of, among others, the following defects in its design, manufacture, testing and/or marketing:

a.     in designing, manufacturing and providing the vehicle at issue of such construction that it could fail for multiple reasons, including its inability to stop or slow down, during normal foreseeable use;

b.     in failing to provide proper and clear warning of the dangers that the vehicle at issue might fail by not working as advertised and intended, causing injuries and damages to the Plaintiff;

c.      in failing to use available design and engineering skill or knowledge to produce a vehicle that would allow for proper operation;

d.     in failing to provide adequate operating instructions and warnings to Plaintiff who used the vehicle at issue even though the Defendant knew or should have known that such warnings were necessary for the safe use of the vehicle at issue;

e.     in failing to adequately inspect and test the vehicle at issue for safety prior to offering it for sale;

f.      in failing to discover that the vehicle at issue was dangerously defective, improperly designed and manufactured, inadequately tested and inspected, entirely unfit for duty and unsafe for use, constituting a hazard to Plaintiff; and/or

g.    in other respects to be proved at trial.

If you believe you have been injured or suffered any property damage as a result of a potential gas pedal sticking, call us at 312.375.6524 to discuss your particular situation 24/7/365 and we'll determine if we can help.

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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 Robert Langendorf, one of the attorneys for Mr. Izenstark, and an attorney I am working with on Toyota cases, we believe we have filed the first suit against Toyota in Chicago and perhaps Illinois for the gas pedal problem. Mr. Langendorf was quoted in the front page of the Business Section of the Chicago Tribune on February 6, 2010 here. 

In addition, unique to this case is that we also sued Hertz for renting the vehicle to the Plaintiff when it 'knew, or should have known about dangerous issues with Toyotas or the Toyota recall or intended recall.' 

If you believe you have been injured or suffered any property damage as a result of a potential gas pedal sticking, call us at 312.375.6524 to discuss your particular situation 24/7/365 and we'll determine if we can help.

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Today, we filed a lawsuit in Chicago, Illinois (Cook County Case No. 2010-L-001675) against Toyota and Hertz alleging strict liability and negligence. Hertz actually rented the 2010 Toyota Corolla long after Toyota noted potential problems with gas pedals in various models.

The lawsuit alleges:

TOYOTA, by and through its agents, employees or representatives, was then and there guilty of one or more of the following careless negligent acts and/or omissions:

a.      carelessly and negligently designed, manufactured and sold the above-described Corolla;

 

b.     carelessly and negligently failed to institute and enforce a policy for review of the automobiles that it designs, manufactures and sells, including the aforestated Corolla, to insure that the Corolla and the vehicles are sold with adequate safeguards and controls; and

 

c.      was otherwise careless and negligent in the design, manufacture and sale of the above-described Corolla. 

The lawsuit further alleges:

The above-described Corolla was manufactured, sold and placed into the stream of commerce by the Defendant, TOYOTA, in an unsafe and defective condition and was unreasonably dangerous to its users by reason of, among others, the following defects in its design, manufacture, testing and/or marketing:

a.     in designing, manufacturing and providing the vehicle at issue of such construction that it could fail for multiple reasons, including its inability to stop or slow down, during normal foreseeable use;

 

b.     in failing to provide proper and clear warning of the dangers that the vehicle at issue might fail by not working as advertised and intended, causing injuries and damages to the Plaintiff;

 

c.      in failing to use available design and engineering skill or knowledge to produce a vehicle that would allow for proper operation;

 

d.     in failing to provide adequate operating instructions and warnings to Plaintiff who used the vehicle at issue even though the Defendant knew or should have known that such warnings were necessary for the safe use of the vehicle at issue;

 

e.     in failing to adequately inspect and test the vehicle at issue for safety prior to offering it for sale;

 

f.      in failing to discover that the vehicle at issue was dangerously defective, improperly designed and manufactured, inadequately tested and inspected, entirely unfit for duty and unsafe for use, constituting a hazard to Plaintiff; and/or

 

g.    in other respects to be proved at trial.

The lawsuit further alleges:

HERTZ, by and through its agents, employees or representatives, was then and there guilty of one or more of the following careless negligent acts and/or omissions:

a.      carelessly and negligently rented, cared, maintained and serviced the above-described Corolla;

 

b.     carelessly and negligently failed to institute and enforce a policy for review of the automobiles that it rents, including the aforestated Corolla, to insure that the vehicles are rented with adequate safeguards and controls or that such vehicles, including the Corolla at issue, is safe to entrust to its customers;

 

c.      carelessly and negligently made the vehicle available for rent knowing, or in a situation where it should have known, of problems with the Corolla at issue or the Toyota recall or future, intended recall; and

 

d.     was otherwise careless and negligent in the rental, care, maintenance and service of the above-described Corolla. 

If you believe you have been injured or suffered any property damage as a result of a potential gas pedal sticking, call us at 312.375.6524 to discuss your particular situation 24/7/365 and we'll determine if we can help.

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According to a Toyota press release, Toyota intends to recall 2.3 million vehicles to fix accelerator or gas pedals. Toyota claims its engineers "have developed and rigorously tested a solution that involves reinforcing the pedal assembly in a manner that eliminates the excess friction that has caused the pedals to stick in rare instances." 

Jim Lentz, Toyota Motor Sales U.S.A., Inc.'s President and Chief Operating Officer, has stated:

We know what’s causing the sticking accelerator pedals, and we know what we have to do to fix it. 

Per Toyota, vehicles affected by the recall include:

• Certain 2009-2010 RAV

• Certain 2009-2010 Corolla

• 2009-2010 Matrix

• 2005-2010 Avalon

• Certain 2007-2010 Camry

• Certain 2010 Highlander

• 2007-2010 Tundra

• 2008-2010 Sequoia 

If you believe you have been injured or suffered any property damage as a result of a potential gas pedal sticking, call us at 312.375.6524 to discuss your particular situation 24/7/365 and we'll determine if we can help.

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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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Effective January 1, 2010, using your mobile device can get you a ticket, but worse, they cause accidents which sometimes cause injuries to you and others for life. Bottom line, wait to use your mobile device, focus on the road and be respectful of others around you--especially while doing 65 m.p.h. down the highway. Mobile devices are shown to cause distractions and having handled numerous auto accidents, our firm learns that Defendants were often using mobile devices just before an accident and our clients pay dearly with life-altering injuries.

Illinois House Bills 71 and 72 were signed in August of 2009 by Governor Pat Quinn and according to a summary of the laws on the State of Illinois web site here: 

The new laws ban motorists from sending text messages while driving in Illinois, and make it illegal to talk on a cell phone while driving through a highway construction zone or school zone.  In addition, it will become illegal to compose, send or read text messages, instant messages and e-mail on a cell phone or surf the internet while driving.  The ban also includes personal digital assistants and portable or mobile computers, but does not include global positioning systems (GPS) or navigation systems.

According to the National Highway Traffic Safety Administration estimates, driver distraction from all sources contributes to 25 percent of all police-reported traffic crashes. If you have a youth driver in the home, take 5 minutes and explain the ramifications of using a mobile device while driving. Plead with them to wait a few minutes before using their mobile devices. And even adults need to put the devices down, keep their eyes on the road and help make the roads a safer place for all.

If you are in an automobile accident and you believe the person who hit you was using a mobile device, pointedly ask the person (if you can have a civil conversation with him or her) if they were using a cell phone or texting when they hit you. If they admit it, tell the police officer that comes to the scene to at least make a note of it in the police report even if the police do not issue a ticket and ask the police officer to confirm the conversation. Contact us 24/7/365 (and we really mean that as wewill answer our phone) if you have any questions about how such an accident could affect your claim against that driver. 

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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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A recent article notes a critical shortage in nurses and nurse's aides in nursing homes. For the full article click here. The article notes that at a time when the population is aging and more people are entering nursing homes, care is short. According to the article, an American Health Care Association survey released just last month noted alarming statistics:

26 percent, or more than a quarter, of registered nurse positions in nursing homes were vacant on June 30, 2007. The survey found that 13.7 percent of certified nurses' aides slots -- about one in seven -- also were empty on that day. The national vacancy rate for nurses was 16.3 percent and for nurses' aides, 9.5 percent.

Your loved ones deserve proper care. Ask questions of the nursing home about the ratio of nurses to residents and nurse's aides. Ask about turnover. Ask about the shifts of the nurses and who is on duty and when. Residents are afforded many rights under the law--proper care is one of them.

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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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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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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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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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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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