In 2006 two different Illinois Appellate Court decisions intrepretting 735 ILCS 5/13-202.2, reached the same conclusion "once a statute of limitations has expired, the defendant has a vested right to invoke the bar of the limitations period as a defense to a cause of action. That right cannot be taken away by the legislature wothout offending the due process protections of our state's constitution." Kuch v. Catholic Bishop of Chicago, 366 Ill. App. 3d 309, 313, 851 N.E. 2d 233, 236 (2006); see also Galloway v. Diocese of Springfield, 367 Ill. App. 3d 997, 857 N.E. 2d 737 (2006). Both cases cited to a 1997 decision by the Illinois Supreme Court that held that once a statute of repose has extinguished a cause of action, defendant has a vested right under the due process clause of the State Constitution to invoke the statutory repose period, even after the repose period was abolished by the legislature. M.E.H. v. L.H., 177 Ill. 2d 207, 685 N.E. 2d 335 (1997).
The issue the court recently wrestled with In Doe v. Diocese of Dallas, (2008), was statutory retroactivity and whether to use the "vested rights approach" or the "legislative intent approach."
The court described the vested rights approach as "the law applied was that which was in effect at the time of the appeal unless the use of that law somehow interfered with a vested right...., with the vested rights approach the legislature's intent regarding retroactivity was not relevant." The court stated that "under the legislative intent approach, the presumption is against retroactive application of the statutory changes unless the legislature clearly indicates an intent that the amendments be so applied."
The Doe court stated: "Under the Ladgraf approach, we must first determine if the legislature expressed its intent relative to retroactivity. If the legislature's intent is clear, we must give effect to that intent unless constitutional principles otherwise prohibit the application....the vested rights inquiry is now a default rule that need only be considered in the absence of of express legislative intent regarding retroactivity." The court held that if a court detemines that retroactive application violates due process, the court must go further "to determine if retroactive application unreasonably infringes on rights implicated."
The Doe court citing Commonwealth Edison stated: " In assessing the fairness of a retroactive application, relevant considerations include (1) the legislature's motive in enacting the statutory change, (2) the period of retroactivity, and (3) whether the parties detrimentally relied on the prior version of the law." The Doe court held that legislature's intent was to correct previously existing law, and thus favored retroactive application, but that the period of retroacivity was long, e.g. 13 years, and thus weighed against retroactivity. However, they found that the defendants cannot claim to have detrimentally relied on the statute of limitations and this favored retroactive application. In conclusion the Doe court stated: "In balancing fairness considerations and the reasons for and against the retroactive application of the statutory change, we conclude that the retroactive application does not unreasoonably infringe on any due process right."
This opinion is very encouraging news for victims of childhood sexual abuse! It also is a very lucid analysis of a judicial approach that deals with statutory retroactivity that harms neither the victims nor our state constitution. On March 20 2007, I posted on this blog about the unfairness and inflexibility of the "vested rights approach", and I remain hopeful that the Illinois Supreme Court when it addresses this issue will follow the Doe court's lead.
]]>Federal Motor Carrier Regulations require that trucking companies involved in interstate commerce and their drivers maintain logs regarding the on duty status of the truck drivers. These logs are critical pieces of evidence for the lawyer to secure, because interstate truck drivers are frequently driving in excess of the federal regulations. Ever since the trucking companies were deregulated over 25 years ago, the trucking companies have been paying their drivers based on the number of miles they drive, so there is an incentive for both the truck driver and the trucking company to keep the wheels roling. It is true that drivers frequently avoid rest stops and actually urinate in containers in the truck so they can keep the wheels rolling.
Federal Motor Carrier Regulations mandate that a truck driver involved in interstate commerce cannot drive or be on duty no more than 70 hours in an 8 days, 49 CFR 395.3(b)2. On duty is defined in the federal regulations as being more than just driving, so time spent loading or unloading must be logged as being on duty. Traditionally logs were manually filled out by the drivers and they understandably wanted the logs to reflect that they were in fact operating their truck within the federal hours of service regulations.
Unfortunately, the federal regulations also provide: "..each motor carrier shall mantain records of duty status (logs) for 6 months from the date of receipt.." 49 CFR 395.8(k)(1). Filing a complaint against the interstate trucking company and its driver should be done as soon as practicable so that the trucking company is still required by federal regulations to preserve the logs of its driver. Attorneys should always file a motion for a protective order to preserve the logs shortly after filing suit. Why are the drivers daily logs so critical?
]]> The answer lies in fuel receipts, GPS reports, toll receipts and many other indicia of where a driver is at a given point in time. Logs are frequently filled by the driver in such a fashion to show that he was actulally within the federal regulations hours of service regulations. Being able to cross check the drivers daily logs with the fuel receipts, GPS reports, toll receipts and other discoverable material will indicate that a drivers logs are accurate, or in many cases inaccurate and actually fradulent, e.g. logs show he was in St. Louis at 8PM on a certain date when the fuel receipts, GPS reports or toll receipts show that he was actually in Dallas. This powerful evidence that can also show that the trucking company knew and encouraged the driver to drive over the federal hours of service regulations thus permitting in some jurisdictions of the filing of a claim for punitive damages.Victims and their attorneys should move rapidly to file suit to preserve critical data to verify whether the driver was driving over the hours of service regulations on a routine basis, which sleep experts can then opine that the driver was fatigued at the time of the crash and their employer knew it and encouraged it. This is critical in placing before the jury a compelling story of the trucking company's greed posing a hazard to motorists and others on our nations highways due to their drivers operating their trucks while fatigued!
]]>The Illinois Supreme Court has twice ruled as unconstitutional caps on non-economic damages in medical malpractice cases in Wright v. Central Du Page Hospital, 63 Ill. 2d 313, 347 N.E. 2d 736 (1976), and in wrongful death and injury cases in Best v. Taylor Machine Works, 179 Ill. 2d 367, 689 N.E. 2d 1057 (1997). In Best, the high court observed: Under our constitution, the three branches of government-legislative, executive, and judicial-are separate and one branch shall not “exercise powers properly belonging to another.” Ill. Const. 1970, art. II, sec. 1. 179 Ill. 2d at 410, 689 N.E. 2d at 1078. The Illinois Supreme Court traced judicial authority by noting: For over a century it has been a traditional and inherent power of the judicial branch of government to apply the doctrine of remittitur, in appropriate and limited circumstances, to correct excessive jury verdicts. Best, 179 Ill. 2d at 411, 689 N.E. 2d at 1079.
In concluding that 735 ILCS 5/2-1115.1 (the cap) violates the separation of powers clause of the Illinois Constitution (1970). Art. II, sec.1, the Best court held: …because the legislature cannot make such case-by-case determinations, separations of powers concerns would be violated by the “legislative attempt to mandate legal conclusions.”….we conclude that section 2-1115.1 invades the power of the judiciary to limit excessive awards of damages. The courts are constitutionally empowered, and indeed obligated, to reduce excessive verdicts where appropriate in light of the evidence adduced in a particular case. Section 2-1115.1, however reduces damages by operation of law, without regard to the specific circumstances of individual jury awards. 179 Ill. 2d at 660, 689 N.E. 2d at 1081.
The separation of powers argument that was central to the decision was not only persuasive and supported by precedent, bur it also makes common sense. If hospitals, doctors and health care providers can petition their legislators to limit damage awards that can be rendered against them, why not accountants, engineers, lawyers, pharmaceutical companies, manufacturers, etc. Our judicial system through its judges not only has the authority, but also the obligation to reduce damage awards that do not fairly reflect the evidence presented at trial. This is as it should be.
]]>In Illinois it is illegal to operate a motorcycle without a Class M license. Neither 17 year old boy had a Class M license nor did they ever have any training in the operation of motorcycles. Decedent's family sued the the 17 year old owner of the motorcycle alleging negligent entrustment of the motorcycle to their inexperienced, unlicensed and underage son.
The testimony indicated that these recent high school graduates had never operated a motorcycle before this date, much less a motorcycle that was described in testimony as the "fastest production motorcycle available." The insurance company that insured the motorcycle, through its lawyers, filed motions to dismiss and for summary judgment. These motions were denied based on the Illinois law cited above as well as Small v. St. Francis Hospital, where the court stated: "...when a car seller has reason to know that a prospective buyer is underage, unlicensed, or otherwise incompetent, a cause of action for negligent entrustment exists." 220 Ill. App. 3d 537, 542, 581 N.E. 2d 154, 158 (1991). The Small court also adopted Section 390 of the Restatement of Torts (Second), which states: " One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them."
These "pocket rockets" should only be used by or lent to motorcyclists with a high degree of training and who possess all necessary licenses. Negligent entrustment cases are extremely difficult to successfully prosecute, because frequently the victim or the decedent is the very person who was instrumental in causing the injury or death. This is the reason why the language contained Section 390 of the Restatement of Torts (Second) is so important. "...risk of physical harm to himself and others..." This clearly contemplates injuries or death to the operators of motorcycles as well as injury to third parties.
Immediately preceding jury selection the insurer for the motorcycle offered 90% of their policy limits, which ended this lawsuirt but not the tragedy! Motorcycles should only be operated by or lent to licensed, experienced, and competent drivers.
]]>Jury instructions in wrongful death actions arising before the effective date of this amendment, May 31, 2007, have and will include Illinois Pattern Jury Instruction (Civil) IPI 31.07. This instructions states: In determining "pecuniary loss" you may not consider the following:
(1) The pain and suffering of the decedent;
(2) The grief or sorrow of the widow and next of kin, or
(3) The poverty or wealth of the widow and next of kin.
Needless to say this was and is a powerful argument that defendants, their insurers and attorneys make to jurors at the trial of a wrongful death action to limit the amount of damages awarded. Sometimes the only significant loss widows and next of kin sustain is the "grief, sorrow, and mental suffering" associated with the wrongfyl death of a family member.
]]> The Illinois Wrongful Deat Act now reads: "....In every such action the jury may give such damages as they shall deem fair and just compensation with reference to the pecuniary injuries resulting from such death, including damages for grief, sorrow, and mental suffering, to the surviving spouse and next of kin of such deceased person." 740 ILCS 180/2The impact of this amendment to the Illinois Wrongful Death Act is to allow parents and other family members to be compensated for their "grief, sorrow, and mental suffering" when they lose a child or sibling to the wrongful act of another. In cases arising on or after May 31, 2007, defendants will no longer be able to argue to the jury that the grief, sorrow and mental suffering of surviving famly members are not compensable. This amendment allows the jury to fairly assess the true loss sustained by family members in wrongful death actions, and in that way return damage awards that deliver justice!
]]>Plaintiff in Clay was born in 1964, sexually abused on hundreds of ocassions in 1972 and 1973, and filed suit against Kuhl and his religious order in 1996. Plaintiff alleged that it was not until 1994 that she first became aware that Kuhl's misconduct caused her injuries.
The defendants moved to dismiss complaint pursuant to 735 ILCS 5/2-619(a)(5), arguing that the time for filing suit expired on March 31, 1984, when she turned 20 years old. Illinois law allows minors to bring suit within two years of reaching majority; 18 years old being majority in Illinois, 735 ILCS 5/13-211. The trial court granted defendants' motion to dismiss. Plaintiff appealed and Illinois Appellate Court reversed the dismissal, Clay v. Kuhl, 301 Ill. App. 3d 694, 704 N.E. 2d 875. The Illinois Supreme Court granted leave to appeal and reversed the Appellate Court and affirmed the trial court's dismissal.
In arguments before the Illinois Supreme Court plaintiff contended that application of the discovery rule is necessary because plaintiff did not realize the full extent of her injuries until well after her 20th birthday. The discovery rule states that a party's cause of action accrues when the party knows or reasonably should know of an injury and that the injury was wrongfully caused. Knox College v. Celotex Corp., 88 Ill. 2d 407, 430 N.E. 2d 976 (1981).
The plaintiff contended that her injuries did not fully manifest themselves until 1994, when she was 30 years old. The Clay court held:
There is no requirement that a plaintiff must know the full extent of her injuries before suit must be brought under the applicable statute of limitations....Notably, Illinoois law presumes an intent to harm and a resulting injury from the type of misconduct alleged by Kuhl,189 Ill. 2d at 611, 727 N.E. 2d at 222. Therefore claims of sexual dysfunction or psychological problems that manifest themselves much later in life are barred unless brought within the statute of limitations and common law discovery rules do not toll these claims. Accordingly, the Illinois Supreme Court held the statute of limitaions expired in 1984, when plaintiff turned 20 years old.
In 2003, the Illinois legislature enacted, 735 ILCS 5/13-202.2, which extended the statute of limitations for childhood sexual abuse to 5 years from the date plaintiff discovers both (1) the act of childhood sexual abuse occurred and (2) that the injury was caused by the childhood sexual abuse. This legislation was a direct response to the harsh effect of the Supreme Court's decision in Clay. The Appellate Court in Kuch v. Catholic Bishop, 366 Ill. App. 3d 309, 851 N.E. 2d 233 (2006), held that expiration of the statute of limitations or statute of repose gives defendants a constitutionally protected vested right, and that the 2003 amendment (735 ILCS 5/13-202.2) does not revive the otherwise time barred claim.
A careful reading of 735 ILCS 5/13-202.2, regarding the statute of limitations for childhood sexual abuse is only one step in determining whether a victim of sexual abuse has a viable cause of action. A search of the legislative history is also necessary to determine whether the claim has ever been barred by an earlier version of the statute of limitations or statute of repose.
Tragically, Illinois Supreme and Appellate Court decisons have trumped legislative efforts to provide a remedy for victims of childhood sexual abuse. The passage of time will dissipate the harsh results of protecting the vested rights of pedophiles, but far too many victims of childhood sexual abuse are abused yet again by the Illinois courts.
The Centers for Disease Control last week released data that indicates that "poisoning was second only to motor-vehicle crashes as a cause of death from unintentional injury in the United States." The report indicated that unintentional drug poisoning deaths increased 68% from 1999 thru 2004. This mortality rate increase was attributed primarily to deaths associated with prescription drugs. Fatal drug overdoses in teenagers and young adults soared 113 % during this same time frame.
What does this mean? Deaths from drugs manufactured by pharmaceutical companies, sold by pharmacies (internet and traditional), and frequently approved by physicians accounted for more accidental overdose deaths than from street drugs, such as heroin. Troubling, you bet!
According to a recent study by the Partnership for a Drug Free America, today's teens are more likely to abuse prescription and over the counter medications, than illegal drugs. These drugs can be purchased over the internet or over the counter. The National Center on Addiction and Substance Abuse (CASA) at Columbia University reported in 2006 that 9 out of 10 internet sites selling controlled prescription drugs do NOT require a prescription.
The current president of CASA and former U.S. Secretary of H.E.W. recently stated: "Any child can get, without prescription, a highly addictive controlled substance like OxyContin, Valium and Ritalin from drug pushers." Despite Congressional hearing, CASA reports and increased attention in the press, these drugs continue to be as easy to buy over the internet as candy. Other CASA findings indicate that Xanax and Valium are the most frequently offered controlled prescription drugs over the Internet.
]]> Search "prescription drugs" on Google search engine and thousands of internet pharmacies appear; most like buymedsquick offer the very drugs that have caused the accidental drug overdose deaths to soar, such as Xanax, Hydrocodone, and Valium. Some ask that an online questionnaire be filled out, others only require a valid credit card. Some advertise FedEx next day delivery with DISCREET and UNMARKED packing, others offer "prescription" drugs with "no embarrassing doctor's visits," and most appear as unwanted spam on our e-mails with frequently a quote from the scriptures to entice us to open, e.g. ufuhojqt@bdb-uk.com. Most of us just delete these messages as spam. Some, however, do respond to these e-mails and purchase prescription drugs, including opiates and other potentially dangerous medications.Dr. Rebecca Patchin representing the American Medical Association states; illegal Internet pharmacies and physicians who sell or dispense prescription medication without a prescription - or without a valid physician-patient relationship- are a threat to the public health
. Earlier posts on this blog have discussed medical malpractice suits that I have prosecuted against physicians who prescribe over the internet without a valid physician-patient relationship, where the overdoses the the Center for Disease Control now document have occurred. WHY DOES THIS CONTINUE?
The Internet Pharmacy Consumer Protection Act was introduced in 2004 in the U.S. House of Representatives (H.R.840) and 2005 in the U.S. Senate (S. 2464). Senator Feinstein said at the time:
With a credit card and a computer, consumers can get prescriptiond drugs without the existence of a bona fide physician-patient relationship, which can pose an immediate threat to public health and safety. Both bills were aimed squarely at internet pharmacies, and both were referred to committees and died in Congress. WHY AGAIN?
The internet pharmacies advertising today rarely list an address, never list the states where they are licensed, nor do they disclose the names of the pharmacists filling the prescriptions. Some of the pharmacies dispense these drugs from unsanitary facilities both inside and outside the United States, and are completely unregulated and uninspected.
The Internet Pharmacy Consumer Act would have required: (1) name, address, and telephone number of the internet site to be displayed on each site; (2) the names of the states where the internet pharmacy is licensed; (3) the names of the pharmacists employed and the states in which they are licensed; and (4) if medical online consultations offered, the name of the physician reviewing the online questionnaire and the states in which that physician is licensed.
This legislation would clearly have been a good first step in combating the plague that internet pharmacies are visiting on our communities by facilitating drug overdoses and fatalities. With simple disclosure requirements for Internet sites such as names, addresses and medical and pharmacy licensing information, patients will be better off and state medical and pharmacy boards can ensure that pharmacists and doctors are properly licensed. One can only wonder if the multi-billion dollar pharmaceutical industry had anything to do with the defeat of this reasonable legislation.
Future legislative attempts must balance the competing needs of (1) adequately and responsibly regulating access to prescription drugs that are subject to abuse; and (2) enabling the continued growth of commerce over the internet for responsible pharmacies and physicians. Since very little is presently being done, we as representatives of the families that have suffered overdoses including fatalities can bring medical malpractice, products liability, and pharmacy malpractice lawsuits against (1) the INTERNET PHARMACIES, if you can locate them; (2) the PHYSICIANS who issue online prescriptions without a valid physician-patient relationship; and (3) the PHARMACEUTICAL COMPANIES. If the pharmaceutical industry wanted illegal internet pharmacies to be regulated, they would be. There is simply no way legislation amending provisions of the Federal Food, Drug and Cosmetic Act and the Federal Controlled Substances Act would be defeated without the overt and/or tacit support of the pharmaceutical industry. It is their products that are being marketed by these illegal internet pharmacies.
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Shortly thereafter defendant Mary Young visited a local tavern and shared the blood test results with plaintiff's sister. Plaintiff complained to the hospital and thereafter filed a lawsuit against the phlebotomist and Illini Hospital under a doctrine of respondeat superior. The trial court dismissed Illini Hospital finding that disclosure of plaintiff's medical records was "not made in the course of or within the scope of Young's employment."
Plaintiff appealed the dismissal to the Appellate Court which reversed holding that a jury should decide whether Young was acting within the scope of employment. Young v. Blessing Care, d/b/a Illini Hospital, 363 Ill. App. 3d 916, 844 N.E. 2d 469 (2006). The Illinois Supreme Court reversed the Appellate Court in Docket No. 102430.
The Illinois Supreme Court discussed the Restatement (Second) of Agency Sec. 228 which provides that: (1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master..
The Supreme Court held that all three criteria must be met to conclude that an employee was acting within the scope of employment. Plaintiff relied upon Section 229 of the Second Restatement which elaborates the first criteria of Section 228, including the admonition to consider such factors as whether the act is outside the enterprise of the employer and whether the employer has reason to expect that such an act will be done. Clearly disclosure of confidential medical information was not outside the enterprise of a hospital and the hospital had reason to be concerned that such an act would occur, why else provide training. The Court ignored these factors in its analysis.
In its unanimous opinion the Illinois Sup. Ct. strangely stated:
".the ultimate question is whether or not the loss resulting from the employer's acts should
justly be considered as one of the normal risks to be borne by the employer."
I agree with this statement of the Court but disagree with the analysis they use to immunize a hospital from liability for the release of confidential medical information of its patient by an employee of the hospital.
"
The second prong of Section 228 the Court conceded could be met since the phlebotomist was required to maintain the confidentiality of medical records 7 days per week, 24 hours per day.
The Supreme Court held that the Appellate Court erred in applying the third prong of Section 228 when the intermediate court stated: "..the duty not to do so was actuated by the needs and requirements of the employer." The Supreme Court held that: "it cannot be fairly said that Young was motivated to serve the hospital when she made the disclosure." In Gaffney v. Chicago, 302 Ill. App. 3d 41, 706 N.E. 2d 94 (1998), the City was held responsible under the doctrine of respondeat superior as a result of conduct of a police officer who did not properly secure his weapon while off duty in contravention of city policy. How did this conduct serve the city? How does the conduct of speeding bus drivers serve the CTA?
The import of this decision in Illinois is that no hospital or clinic can ever be held responsible for the actions of any of its employees in disclosing confidential medical information of one of its patients. Under what circumstances would disclosure of confidential medical information of a hospital's patient by a hospital employee ever be said to further the interest of the hospital? Could not the same analysis be utilized in insulating a law firm from liability for disclosure of confidential information of a client by one of the firm's clerical employees? The Court's analysis is flawed, it should patient's interest in maintaining that his medical information remains confidential that should be the central inquiry, not whether the hospital interests are furthered by the unauthorized disclosure. If this be the Illinois judiciary's final word in this area, the legislature should step in and provide statutory penalties to hospitals for unauthorized disclosure of confidential medical information by one of its employees.
]]>As reported in last months' post on internet prescription malpractice, the plaintiff, a 30 year old husband and father ordered Xanax and Ultram over the internet. The plaintiff had previously successfully completed a drug rehabilitation program through Hazelton, and had been clean and sober for a long time. However, looking at his e-mails one day in May 2004 he succumbed and ordered the anti-anxiety drug Xanax and the pain killer Ultram via an internet questionnaire. As he testified before a jury in U.S. District Court in Chicago, he took these drugs partially for back pain and partially for recreation.
After consuming these drugs the next thing he recalls is waking up in a hospital in suburban Chicago three weeks later. The drugs repressed his breathing causing a hypoxic event that landed him in a coma. Neither Dr. Klinman. a Pennsylvania internist, whose name was on the bottle of Xanax nor Dr. Ahlawat, a New Jersey internist, whose name was on the bottle of Ultram, had ever seen plaintiff or spoken with him. All the information they had was contained on the online questionnaire that he filled out.
At a rate of $10 per prescription Dr. Ahlawat would have received $1,844,500 and Dr. Klinman $389,310 for approving prescriptions for controlled and non-controlled substances to patients during a nine month time frame to patients they had neither seen nor examined. The pharmacy involved in this conspiracy received approximately $38 million during this same nine month time frame according to the grand jury indictment. Lucrative indeed!
Dr. Klinman, who prescibed 2 mg Xanax tablets to plaintiff based solely on internet questionnaire, took the Fifth Amendment during discovery, and his insurer decided to offer $650,000 immediately before jury selection. The offer was accepted. The case proceeded to trial as to Dr. Ahlawat, but the jury decided that the brain damage was caused by an overdose of Xanax and that the Ultram he prescribed did not harm plaintiff
These internet prescribing doctors prey on patients with substance abuse problems by providing them with drugs in precisely the same way drug dealers push drugs for profit. No ethical physician would ever prescribe a controlled substance to a patient they had never seen based solely on an online questionnaire. A valid credit card is all you need, and if the recipient is a child, so be it. There are no checks, just fill in your age on the questionnaire, no one calls, no one checks, no one cares.
Times are changing. The U.S Attorney for the Eastern Dist. of Pennsylvania has indicted Dr. Klinman, Dr. Ahlawat, and various internet pharmacies and charged them with (1) conspiracy to distribute controlled substance, 21 U.S.C. 846; (2) distribution of controlled substances, 21 U.S.C. 841(a)(1); and (3) money laundering, 18 U.S.C.1956. While the overwhelming majority of physicians would never approve prescriptions for patients they have never seen solely for profit, civil and criminal liability may be the best deterrent to put a halt to this despicable practice.
]]>In April 2004, a 30 yr. old plastic salesman along with his newly pregnant wife had just moved into their new home in suburban Chicago. He was an active man who played golf and basketball regularly. He loved reading Dostoevsky and Hemmingway. His sales job required 70-hour work weeks and he drove over 60,000 miles per year servicing his customers. Stress was very high and his back was bothering him, but his family life and work prospects were promising.
]]> Looking at his e-mails one day, he noticed spams offering the anxiety drug Xanax and painkiller Ultram. All that was required was to fill out an on line questionnaire and enter his credit card. Two doctors, one in Philadelphia and another in New Jersey then approved the salesman's request for drugs. He neither saw nor spoke with either of the doctors.American Medical Association policy requires that "physicians who prescribe medications via the Internet shall have established a valid patient-physician relationship." Federation of the State Medical Boards of the U.S. states that: "treatment, including issuing a prescription, based solely on an on line questionnaire or consultation does not constitute an acceptable standard of care." The Federation further states that physicians who prescribe over the internet must be licensed in the jurisdictions where the patient resides. This comports with the laws in most states.
The Illinois medical malpractice lawsuit filed against these doctors charged them with deviating from the standard of care in that they: (1) prescribed Xanax and Ultram to a patient they had never seen or examined; (2) prescribed excessive dosages; and (3) practicing medicine in the state of Illinois without a license. I will trace the path of this medical malpractice litigation in future articles. Holding physicians financially responsible for the harm they cause by prescribing over the internet may now be the most promising way to stop these drug dealing doctors and their pharmacy co-conspirators from the scourge of prescription drug abuse.
Decedent's estate filed a product liability lawsuit in Chicago alleging that driver's seat was defectively designed with inadequate strength making it unreasonably dangerous. The driver's seat was co-designed by Ford and Mazda and was a "yielding seat" meaning that when force applied it yielded in the direction of the force. This "yielding seat" met federal safety standards. However, plaintiff's expert testified that compliance with federal safety standards does not make a seat safe. Expert testimony revealed that a "rigid seat" transfers the energy forward in a rear end collision.
Estate expert witnesses testified the a "rigid seat" was feasible and would have protected decedent from his fatal injuries. Specifically, experts opined that risk of severe to fatal injuries was 10 to 25 times greater with a "yielding seat."
]]> An issue on appeal was whether a plaintiff may prove a strict liability design defect by either the consumer expectation test or the risk-utility test. Ford and Mazda maintain that the Illinois Supreme Court adopted the risk-utility test as the exclusive test for design defects in product liability actions in Blue v. Environmental Engineering, 215 Ill. 2d 78, 828 N.E. 2d 1128 (2005). Plaintiff argued that any discussion in Blue that the exclusive test for design defects in products liability actions is the risk-utility test was dicta.Illinois strict liability design law is outlined in this interesting opinion. Ultimately, the appellate court sided with plaintiff and stated that product liability actions alleging design defects may be proven by either the consumer expectation test or the risk-utility test, and that Blue did not change existing Illinois law. The court affirmed the jury's verdict for plaintiff, but ordered a remittitur of the damages awarded.
The jury awarded $2 million for loss of goods, money and services and $25 million for loss of society and sexual relations. Decedent was a 46 yr. old man and left surviving a wife and two children 10 and 14 years old. Ford and Mazda contended that the jury's award of $25 million for loss of society was arbitrary and excessive. Plaintiff urged that the $25 million award should not be compared to other cases as it is not authorized under Illinois case law.
After reviewing the Illinois case law regarding excessive damages, the Appellate Court stated: "
.we cannot allow the $25 million loss of society award to stand because it exceeds fair and reasonable compensation and shocks the judicial conscience." The case was remanded to the trial court for a hearing to determine the appropriate amount of the remittitur. The court stated: "By way of guidance to the trial court, we would find it difficult to deem reasonable a loss of society award of more than seven figures and would certainly find unreasonable an award of any more than one-half of the loss of society settled upon by the jury." Mikolajczyk v. Ford Motor Company and Mazda Motor Corporation, 2006 WL 3392219 (2006).
In the Farmer's policy there was language in the "Limitations of Coverage" that limited coverage under the "per person" coverage that stated: "Included in this limit, but not as a separate claim or claims, are all consequential damages sustained by other persons, such as...loss of consortium, wrongful death.." The Illinois Supreme Court held this language "unambiguously restricts recovery for all damages including...survival act and wrongful death claims to the $100,000 "per person" limit in the underinsured motorist coverage provisions." Farmers v. Marchwiany, 222 Ill. 2d 472, 856 N.E. 2d 439 (2006).
A careful reading of the "per person and "per occurrence" language in a policy is critical in determining whether the insurance company has unambiguously limited its coverage in wrongful death claims to the "per person" limit. If the policy language does not clearly restrict the derivative claims of the next of kin to the "per person" limits, then a claim for the larger "per occurrence" limits should be made in both uninsured and underinsured motorist claims.
]]>While guiding boards onto the scissors lift plaintiff accidentally stepped on the foot switch causing the table to lower while his foot was underneath. The boards and table weighed over 1,500 lbs. and crushed his right leg. Plaintiff sustained fracture of tibial plateau, bimalleolar fracture of ankle requiring six surgeries and ultimately fusion of his knee. Plaintiff, a former drug user, complicated his medical condition by injecting Oxycontin into his right arm in an unsuccessful attempt to relieve pain, thus leading to osteomyelitis in his right leg.
]]> Jury found that the scissors lift and foot switch were unreasonably dangerous in that foot switch was designed and installed under the scissors lift table making the crushing of an operator's leg foreseeable. Jury found both the installer and manufacturer responsible under product liability law and further found that plaintiff's damages should be reduced from $1.9 million to $1.8 million based upon plaintiff's 5% contributory negligence. Fortunately post trial issues were resolved quickly, and the plaintiff received his compensation several weeks after the jury returned its verdict]]>Is a defendant who settles with the plaintiff prior to trial still a "defendant sued by the plaintiff" within the meaning of section 2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1117)? If we answer this question in the affirmative, then all defendants sued by the plaintiff, including those who settled prior to trial, may be included on the jury verdict form so that the fact finder can assign each defendant their degree of fault, if any. If we answer this question in the negative, then only those defendants who remain when the case is submitted to the fact finder may be included on the verdict form.Ready v. United, 367 Ill. App. 3d 272, 854 N.E. 758, 2006 WL 2434935 (2006).