Archive for June, 2009

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.

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President Obama Rejects Caps On Damages In Medical Malpractice Cases

Monday, June 22nd, 2009

Obama AMA tort reform speech President Obama Rejects Caps On Damages In Medical Malpractice CasesPresident 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.

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Spoliation of Evidence in Illinois Medical Malpractice Actions

Thursday, June 18th, 2009

Illinois spoliation of evidence 300x199 Spoliation of Evidence in Illinois Medical Malpractice ActionsTo prove a “spoliation of evidence” claim relating to an Illinois medical malpractice action, the plaintiff (and his or her Chicago medical malpractice lawyer) must show that “but for” the missing evidence, it had a “reasonable probability of succeeding” in the underlying medical malpractice case. Midwest Trust Services, Inc. v. Catholic Health Partners Services, No. 1-06-2257 (June 8, 2009).

In Midwest Trust, the estate of a man who died of a heart attack about 48 hours after he underwent cervical fusion surgery brought an Illinois medical malpractice lawsuit against the hospital and doctors. The estate also filed a “spoliation of evidence” claim, alleging that the hospital failed to preserve an “occurrence report,” which is typically created after a death at the hospital within 48 hours of surgery. The estate also alleged that the hospital failed to preserve “cardiac-monitoring strips” generated on the date the decedent was admitted to the hospital for surgery. The estate alleged that the failure to preserve this evidence impaired its ability to prove the underlying medical malpractice action.

The estate went to trial in its medical malpractice action. The jury returned a verdict in favor of two defendants, but was unable to reach a verdict against the remaining defendants and a mistrial was declared.

After the case was remanded, the estate amended its spoliation claim to assert that “but for” the defendant’s acts or omissions, it “would have prevailed” in the underlying medical malpractice case. The trial court granted the defendants summary judgment in favor of the hospital because it found that the loss of the cardiac-monitoring strips did not cause the estate to be unable to prove its medical negligence case. Even without this evidence, the plaintiff’s medical expert witness was able to render his standard-of-care opinions against the hospital.

On appeal, the appellate court stated that the “primary issue” in the spoliation action was whether the loss, destruction or altercation of the cardiac-monitoring strips prevented the plaintiff from proving its case against the hospital in the underlying medical malpractice action. The court held that the estate failed to show that “but for” the missing cardiac-monitoring strips, it had a “reasonable probability of succeeding” in its medical malpractice action against the hospital.

The appellate court found that the estate’s medical expert witness, a cardiologist, testified that after a review of the decedent’s medical records he had sufficient information to form an opinion based upon a reasonable degree of medical certainty that the hospital deviated from the standard of care, without reviewing the cardiac-monitoring strips. Accordingly, the appellate court held the trial court did not err in granting summary judgment in favor of the hospital.

Midwest Trust sets a difficult precedent for a Chicago medical malpractice lawyer to prove a spoliation claim in a lawsuit arising out of medical negligence. It also puts personal injury lawyers in a “Catch 22″, requiring them to either: (1) find a medical expert to give a standard-of-care opinion in a medical malpractice action, without potentially critical pieces of evidence that has been destroyed, and forego the spoliation action; or (2) forego the medical malpractice action (and do not retain a medical expert to give standard-of-care opinions), and proceed with the spoliation of evidence action under the “but for” standard.

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