2009 June | Chicago Personal Injury Law Blog - Passen Law Group - Top Chicago, Illinois Personal Injury Lawyers

Archive for June, 2009

Proposed Bill To Require Electronic On-Board Recorders on All Trucks

Tuesday, June 30th, 2009

As all top personal injury lawyers handling truck accident cases know, and as has been commented on in various other blog entries here, a deep understanding of the federal regulations governing interstate trucking is critical to any truck accident case.

A new bill in Congress attempts to address driver fatigue, which is a common cause of truck and tractor-trailer accidents. The legislation would require all commercial motor vehicle to have Electronic On-Board Recorders (“EOBR”) installed on their truck to track Hours of Service compliance, as required by the Federal Motor Carriers Safety Administration. The bill gives truck drivers and trucking companies 4 years to implement the new EOBR requirements.

The bill is primarily authored by the Chairman of the House Transportation and Infrastructure Committee, James Oberstar.

Notably, this legislative “bill” conflicts with the originally proposed EOBR “rule,” which would only require truck and bus companies with a history of serious Hours of Service violations to install electronic on-board recorders in all of their commercial vehicles. Apparently, after officials for the Federal Motor Carrier Safety Administration revised the proposed rule it was withdrawn after the Obama administration took office.

The proposed rule regarding Electronic On-Board Recorders is under review by the Secretary of Transportation, and is expected to be published in October.

Even if a Final Rule is published prior to the passage of the bill, under the Supremacy Clause of the Constitution, the Congressional legislative mandate would trump the EOBR rule.

As a Top Chicago Truck Accident law firm committed to improving the safety of those at risk of catastrophic personal injury on our nations interstate roadways, we support the EOBR legislation. Although this bill imposes a burden on truck drivers and trucking companies to install EOBR devices, the cost is outweighed by the benefit of increased compliance with the Federal Motor Carrier Safety Administration Hours of Service requirements.

Tags: Chicago Tractor-Trailer Accident Lawyer, Chicago Truck Accident Lawyer, Illinois Truck Accident Lawyer
Posted in Truck Accident Law | No Comments »

Illinois Rejects Motorcycle Helmet Law – Intended To Reduce Catastrophic Motorcycle Accidents

Sunday, June 28th, 2009

With summer in full swing, motorcycle riders are coming out of the woodwork in Illinois and across the nation. Unfortunately, many of these motorcycle riders do not wear helmets on Illinois roads and highways for one main reason: Illinois remains one of the only states in the country to without a motorcycle helmet law.

The debate over mandatory motorcycle helmet laws has been highly contested in Illinois. On the one side, traditional motorcycle enthusiasts who feel bikers should have the choice to to wear a helmet or not, and on the other side, consumer safety organizations, and many top Chicago personal injury lawyers, who argue that motorcycle helmet laws save lives.

As the number of fatal motorcycle crashes in Illinois continues to rise, the debate over helmet requirements continues. Illinois is one of three states, along with New Hampshire and Iowa, with no motorcycle helmet laws at all. Twenty-one states require motorcycle helmets in all circumstances, and the remaining states require motorcycle helmets to be worn under certain circumstances.

Brief History Of Motorcycle Helmet Law in Illinois

In 1968, Illinois passed a mandatory motorcycle helmet usage law for all riders, but it overturned by the Illinois Supreme Court in People v. Fries, 142 Ill.2d 446 (1969), as an unconstitutional abuse of police power. A year later the Illinois Supreme Court overturned Fries ruling, but no legislation requiring motorcycle helmets has since become law.

In April 2009, the Illinois Senate voted on SB 1351, which would have required all motorcyclists in Illinois to wear helmets with chin straps whenever they operate their motorcycles. The Illinois Senate struck down the bill in overwhelming fashion. The final vote was 49-14 with one member abstaining.

Number of Motorcycle-Related Deaths On the Rise

According to the Federal Highway Administration (FHWA), the number and rate of motorcycle-related deaths on the roads of the United States are rising dramatically. There were approximately 7.1 million motorcycles on the road in 2007. The FHWA reports that motorcycle rider fatalities rose 115 percent between 1997 and 2005.

The United States Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) reports that in 2007, over 5,000 motorcycle drivers and passengers died in motorcycle crashes, the highest ever since the National Highway Traffic Safety Administration began collecting the data in 1975. The number of motorcycle-related deaths increased almost 7 percent from 2006. According to the 2007 Illinois Crash Facts and Statistics, the number of motorcyclists killed increased by 18.9 percent from the previous year. Those motorcycle fatalities accounted for 12.6 percent of all Illinois fatalities in 2007.

Indeed, motorcycle accident fatalities have increased every year for the past 10 years.

Motorcycle Accident Fatalities Are Significantly More Probable Than Car Accident Fatalities

Motorcyclists are significantly more likely to die in a motor vehicle accident than someone riding in a car or truck. Unlike drivers and passengers in cars or trucks, motorcycle riders and passengers are completely exposed to sustaining direct impact in a motor vehicle accident. Motorcyclists can suffer severe personal injuries from the impact of another vehicle, landing on pavement or being thrown off the motorcycle and into some other object, such as a tree, building, concrete barrier or oncoming traffic lane.

Severe personal injuries include broken bones, severed limbs, traumatic brain injury, neck and spinal cord injuries and even death. Death can come from any of the injuries listed, or from internal injuries that may rupture the spleen, puncture the liver or other organs, causing internal bleeding that can lead to death.

Actual Motorcycle Helmet Usage Rates in Illinois

In June 2008, the state of Illinois commissioned a study to determine the actual helmet usage rates for motorcycle riders on the roads of Illinois. The 2007 Illinois Crash Facts & Statistics published the results, which showed that only 29.5% of all motorcycle riders statewide actually wore a helmet. This was slightly below the percentage of motorcycle riders in Chicago who wear helmets, measured at 34.9%.

The Helmet Debate: A Public Health Issue

Chicago area residents still remember the motorcycle accident in May that claimed the life of Anita Zaffke. A woman, driving a car, was painting her nails and failed to notice that Anita Zaffke was stopped at an intersection as a stop light turned from green to yellow. The impact caused Zaffke to be thrown off her motorcycle and suffer severe internal injuries. The fatal accident has sparked debate on whether fatal accidents caused by distracted drivers constitute reckless homicide.

State Rep. William Black (R-Danville) proposed a “negligent vehicle homicide” law, HB1382, in 2007 so that distracted drivers who cause deaths would face a prison sentence as well as a $25,000 fine and revocation of their driver’s license for at least one year upon conviction. The bill stalled in January of this year, so the current law still stands. Current law offers two choices for prosecution: a traffic citation, or proving reckless homicide, meaning the driver acted with complete disregard for the safety of others.

This accident also highlights the importance of a motorcycle helmet law as a public health issue. Proponents of such a law note that motorcycle riders are completely unprotected riding a vehicle that travels just as fast, if not faster, than cars or trucks. Specifically, the motorcycle rider’s head is completely vulnerable in an accident.

As noted in other blog entries discussing traumatic brain injury, the consequences of head trauma in a motorcycle accident can be devastating. A helmet lessens the trauma to the head, and saves lives.

But beyond personal safety, the debate over motorcycle helmet requirements is a public health issue. The cost of medical care as a result of a motorcycle crash can be millions of dollars, and mandatory helmet laws could save the state of Illinois a significant amount of money in health care costs — similar to seat belt laws and bans on indoor smoking in Chicago.

Those against mandatory helmet laws argue it’s a “freedom issue” as opposed to a “safety necessity.”

However, as the motorcycle accidents continue, and the number of motorcycle fatalities continue to rise, the need for a mandatory motorcycle helmet law in Illinois becomes clear.

If you or a loved one has suffered serious personal injuries as a result of a motorcycle accident, it is important to contact a top Chicago personal injury lawyer to investigate your case, especially if the driver of a car or truck was found to be distracted while driving. Our Chicago personal injury attorneys will help you understand current law and the options you and your family have to collect for pain and suffering, lost wages, medical bills, long term care and any other applicable damages.

Tags: Chicago Motorcycle Accident Lawyer, Chicago Personal Injury Lawyer
Posted in Personal Injury Law | 17 Comments »

Chicago Car Accident Lawyer Assessing Liability in a Motor Vehicle Accident

Friday, June 26th, 2009

At Passen Law Group, our experienced Chicago personal injury lawyers handle a small number of catastrophic injury cases — involving permanent injury (such as traumatic brain injury, paralysis or disfigurement) or wrongful death. Our top Chicago car accident and truck accident lawyers also handle cases where the injuries are less severe (e.g., fractures, herniated discs or soft tissue injuries) where “liability” is strong — meaning that the negligence or recklessness of the defendant is clear.

Such cases frequently arise in Chicago car accident litigation. Some of the classic examples of a strong liability case involve the following: A plaintiff is stopped at a stop sign when her car is rear-ended by defendant’s car or truck. A plaintiff is driving her car through a green light at an intersection and the defendant’s vehicle drives through a red light and crashes into plaintiff’s vehicle. A plaintiff is driving her car down the highway when defendant’s car or truck crosses the center line into oncoming traffic and crashes into plaintiff’s vehicle.

Chicago car accident lawyers representing individuals in strong liability motor vehicle cases must still engage in the proper investigation to firm up liability. For example, the lawyer must ensure that the client’s version of what occurred is consistent with what appears on the police report or Major Accident Investigation Unit documentation. The attorney should determine whether there are any witnesses to the accident, other than the plaintiff(s) or defendant(s) and, if so, hire an investigator to secure any favorable written statements from the witnesses. The lawyer should secure any photographs of the scene of the accident and the vehicles involved, which would be included in the Major Accident Investigation Unit report (if one was done) — unless the accident is “major”, a MAIU investigation is unlikely. Photographs of the parties’ vehicles should be taken to show the nature and extent of the damage — and where the impact occurred on each vehicle.

In larger cases involving Chicago truck accidents, the lawyers should immediately file suit and seek a protective order to preserve important evidence contained in the truck — including the truck’s “black box” (to determine the speed of the truck within hundredths of a second before impact) and any Qualcom communications between the truck driver and anyone else, including the dispatcher.

As mentioned in previous blog entries, Chicago truck accidents present unique challenges because of requirements prescribed by the Federal Motor Carrier Safety Administration. For example, truck drivers may only work a certain amount of hours per day, and must maintain a Log Book to show their hours of service — to prove that they are not driving while fatigued.

To assist lawyers with analyzing liability in motor vehicle accident cases, lawyers are guided by the rules proscribe in the Illinois Vehicle Code, 625 ILCS 5/1 et seq., and Motor Vehicle sections of the Illinois Pattern Jury Instructions.

Regardless of whether we represent the Estate of a father killed and a fourteen-year-old child paralyzed in a car accident with a semi tractor-trailer or an elderly couple who suffered soft tissue injuries when their car was rear-ended by a truck, our Chicago car accident lawyers address the case the same way: we conduct an extensive factual investigation to conform the evidence to law in Illinois on liability, often through the use of liability experts; and then we bolster our damages case.

Tags: Chicago Car Accident Lawyer, Chicago Truck Accident Lawyer
Posted in Car Accident Law | No Comments »

Uninsured and Underinsured Motorist (UM) Claims in Illinois

Wednesday, June 24th, 2009

Despite the catchy Safe Auto jingle, many motorists in Illinois remain uninsured or underinsured. As the economy continues to suffer, more people may see car insurance as a luxury they cannot afford. Unfortunately, the presence of uninsured and underinsured motorists takes a huge toll on our society, especially when those uninsured motorists are involved in motor vehicle accidents on our Illinois roads and highways.

Minimum Auto Insurance Requirements in Illinois are Woefully Insufficient

In Illinois, are in compliance with the mandatory insurance law if you have vehicle liability insurance in the following minimum amounts:

* $20,000 – injury or death of one person in an accident

* $40,000 – injury or death of more than one person in an accident

* $15,000 – damage to property of another person

Reasons to Purchase Uninsured and Underinsured Motorist (UM) Coverage

We tell all of our clients that the minimum Illinois car insurance requirements are just that — a minimum. If you can afford to purchase a larger auto insurance policy, you should do so. You will likely find that an increase from $20,000 in coverage to $200,000 results in a modest increase in your monthly premium.

Further, you should make sure that you purchase uninsured and underinsured motorist (UM) coverage. An uninsured or underinsured driver involved in an accident can create additional problems beyond inflicting serious personal injuries. If the driver is uninsured, then the driver has no insurance coverage at all. If the driver is underinsured, he or she may not have enough coverage to fully compensate the injured party.

Under this type of car insurance coverage, if you are involved in an accident with another driver who is either uninsured or underinsured you can recover damages (i.e., money) from your own insurance company for the injuries you sustained, up to the amount of UM coverage.

For example, assume for a moment that you are driving in Chicago and are rear-ended by a drunk driver, causing you critical injuries or wrongful death. The drunk driver is uninsured. The only way you will be able to recover damages from your injuries (other than going after the personal assets of the drunk driver) is if you are covered by uninsured motorist coverage. If you had $1 million in uninsured motorist coverage, you could recover up to $1 million from your own insurance company for the injuries you sustained in the Chicago car accident with the uninsured drunk driver.

Contact an Experienced Chicago Car Accident Lawyer Regarding a Potential Uninsured and Underinsured Motorist (UM) Claim

If you have suffered severe personal injuries because of an auto accident, and the driver involved was uninsured or underinsured, you may think you cannot recover any damages and thus have no case. However, this may not be true, especially if you have an uninsured/underinsured motorist provision in your auto insurance policy.

Auto insurance policies are often confusing, so make sure you purchase insurance through a broker you trust. Furthermore, if you are involved in a serious car accident, it is critical to discuss your case with a top Chicago car accident lawyer with a deep understanding of the nuances of auto insurance policies, a willingness and ability to investigate your case, and experience dealing with insurance companies at the negotiating table and in the courtroom.

Uninsured and underinsured motorists coverage must be made available, by Illinois law, though no motorist is required to purchase such coverage. Purchasing uninsured and underinsured motorist coverage, however, makes it possible for you to hold your insurance company liable.

Chances are that if the liable party could not afford auto insurance, or chose not to purchase enough car insurance coverage, he or she does not have the ability to fully compensate you for your injuries. With uninsured and underinsured motorist coverage, your auto insurance company essentially steps into the shoes of the liable party. Instead of filing a claim against the uninsured or underinsured driver, you are filing a claim against your auto insurance company.

Note that in Illinois UM claims, your auto insurance company may find you at fault for the accident, and deny your claim. Therefore, before proceeding with a claim against another individual, or against your insurance company, contact an experienced Chicago car accident attorney.

Tags: Chicago Car Accident Lawyer, Chicago Wrongful Death Lawyer
Posted in Car Accident Law | No Comments »

President Obama Rejects Caps On Damages In Medical Malpractice Cases

Monday, June 22nd, 2009

President Obama’s speech at the annual conference of the American Medical Association in Chicago was a highly anticipated event, not only for casual followers of the President’s political agenda, but also for Chicago medical malpractice lawyers. Health care reform is front and center, once again, and so is the issue of “tort reform.”

Medical malpractice is considered a “tort” in which the injury is caused by negligence, or a failure to provide the appropriate standard of medical care to the victim. The person who caused the injury may be a doctor, surgeon, nurse, hospital or other licensed healthcare professional.

One of the most controversial tort reform issues involves imposing caps on non-economic (or non-liquidated) damages, such as pain and suffering, in medical malpractice awards. Proponents for caps on non-economic damages argue that jury awards and settlements are too high, causing medical malpractice insurance premiums to rise, thereby increasing the cost of healthcare and forcing doctors to flee to more protective jurisdictions.

However, the evidence does not support these tort reformists. Several independent studies have concluded that medical insurance premiums have not significantly declined in states that have imposed caps on non-economic damages, and are not predicted to significantly decline if Illinois enacts similar caps.

More importantly, an arbitrary cap on damages in a medical malpractice benefits the insurance companies at the expense of those most seriously injured and most in need of help. For example, in Missouri, non-economic medical malpractice awards are capped at $350,000. Therefore, if a newborn child suffers a catastrophic permanent injury such as hypoxia induced cerebral palsy as a consequence of medical malpractice, she may only recover $350,000, despite requiring full-time care for the rest of her live, and never being able to live a normal life.

Further, there is no evidence to support the argument that caps on non-economic damages will impact the filing of “junk” lawsuits. Medical malpractice lawsuits in Illinois and nationwide are extremely expensive to prosecute — filing fees, expert witness fees (often $500-$1,000/hour), exhibits, testimony, etc. The more complicated the medical malpractice case, the more expert witnesses may be required.

In an environment without caps on non-economic damages, Chicago personal injury lawyers must be extremely selective in the medical malpractice cases they handle — because the attorney usually pays all the expenses and attorney’s fees if the plaintiff loses her case. In jurisdictions with caps on non-economic damages, personal injury lawyers will be even less inclined to invest in meritorious medical malpractice cases because of the significant expenses and a capped potential recovery.

If Chicago medical malpractice lawyers are less inclined to file worthwhile claims, then people who have suffered will continue to suffer. The only people who win with caps on medical malpractice awards are the insurance companies.

Thankfully, President Obama told the American Medical Association (and the American public) that medical malpractice caps are “unfair to people who’ve been wrongfully harmed.” He stated that other health care reform options should be pursued.

President Obama outlined other options in an article he wrote in May 2005 with Senator Hilary Rodham Clinton that was published in the New England Journal of Medicine. The article, “Making Patient Safety the Centerpiece of Medical Liability Reform,” argues for improved patient safety through open communication and confidential disclosure of medical errors over caps on medical malpractice awards.

A year earlier, in May of 2004, Libby Perl, the Century Foundation Program Officer, wrote an article entitled “The Medical Malpractice Controversy” that drew a similar conclusion. She goes on to explain “how limits on awards for “pain and suffering” have the greatest adverse affect on the poor, underemployed, and children, because they would get smaller awards for economic damages such as lost wages.” The people stand to lose if caps are imposed on medical malpractice awards.

The health care reform debate is complex in general, and the debate on caps for medical malpractice awards only adds to the complexity and potential confusion.

What is clear is that caps on medical malpractice awards are not the answer. Millions will be denied their legal rights to seek appropriate compensation and damages when negligence of doctors, hospital staff and other healthcare professionals caused unnecessary pain and suffering. Passen Law Group’s Chicago personal injury lawyers will continue to support the rights of the people to access our courtrooms and to seek the justice they deserve.

Tags: Chicago Medical Malpractice Lawyer, Chicago Personal Injury Lawyer
Posted in Medical Malpractice | No Comments »