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Archive for October, 2010

Traumatic Brain Injury a Chronic Disease?

Wednesday, October 27th, 2010

Our Chicago brain injury attorneys have long fought to make the public aware of the serious, severe, and lifelong effects of a traumatic brain injury, or TBI. It is often difficult, however, to get an insurer or jury to focus on those effects and side effects of TBI that may not manifest until years after the injury itself.

Traumatic brain injury is caused by injury to the head, such as a blow, bump, or fall, which interferes with the brain’s normal functions. The most common form of TBIs are concussions. Although extremely serious, particularly if ignored or improperly treated, concussions are generally not life-threatening. However, although most people who suffer a concussion make a full recovery, some victims – particularly the elderly, young children, and teenagers – suffer effects well after the injury, or even permanently. In addition to concussions, there are many more serious forms of TBI, which range in severity from very mild to immediately fatal. The largest categories of traumatic brain injuries in the United States are brain injury in car accidents (around 28%) and sports (around 20%).

It is human nature to want to think of injuries, including TBI, as having a recovery period – and once that recovery has taken place, the injury is over. But the truth is that even after a victim of TBI resumes a “normal” life, or as close to normal as they are going to get if the injury is severe enough, there are still scores of problems that may not exist or become evident for years to come. Yet these problems are still the result of the TBI, or at least exacerbated by it.

That is why the new proposal from researchers at the University of Texas Medical Branch at Galveston is so encouraging to our top brain injury lawyers. These researchers, who in the Journal of Neurotrauma conduct a thorough review of the available scientific literature on TBI, propose that TBI be reclassified. Although TBI is at present treated as a serious injury, they propose that it instead be viewed, classified, and treated as a chronic disease triggered by a serious injury.

Such a reclassification would more adequately recognize the lifelong problems and risks associated with TBI. Individuals who have suffered a TBI are at greater risk of developing epilepsy, for example, and can do so years after the injury. Likewise, TBI victims are more likely to develop conditions from sleep apnea to neuroendocrine disorders, certain psychiatric disorders, as well as non-neurological disorders including sexual dysfunction. More predictably, TBI victims are likewise at a higher risk of neurodegenerative disorders, including Parkinson’s and Alzheimer’s or dementia, and can even develop a degenerative condition that mimics Lou Gehrig’s disease and has until very recently been misdiagnosed as such. The heightened risk of these problems throughout a victim’s lifetime certainly makes TBI more akin to a chronic disease that a one-time injury with a discreet recovery period.

Nor are the results of reclassifying TBI are not strictly academic. The authors themselves recognize that such a reclassification would make it easier to persuade insurers to cover the true costs of TBI. And patients’ outcomes could be substantially improved, as the “chronic disease” of TBI would then be prominent in a patient’s health history, and healthcare providers would then be better educated and able to monitor these patients for the emergence of TBI-associated conditions later in life.

The reclassification could also favorably impact lawsuits involving TBI. Reclassifying TBI as a chronic disease whose effects often include these related conditions would make it easier to convince a court or jury that these effects are simply a part of the average cost of living with TBI, making it easier to obtain compensation. Even were we not convinced that the reclassification would best reflect the true nature of TBI, our Chicago brain injury attorneys would welcome the reclassification for that reason, alone.

One of the article’s co-authors was Brent Masel, a clinical associate professor in the University’s neurology department, as well as the president and director of a brain injury rehab center called the Transitional Learning Center. The other author was Douglas DeWitt, a professor in the University’s department of anesthesiology.

For a free consultation with an experienced Chicago brain injury lawyer at Passen Law Group, call us at (312) 527-4500.

Tags: Chicago Brain Injury Attorneys, Traumatic Brain Injury (TBI)
Posted in Brain Injury Law | No Comments »

Chicago Hospitals Try Transparent Approach to Medical Malpractice

Tuesday, October 26th, 2010

Our medical malpractice attorneys in Chicago have frequently criticized the prevailing medical culture, which encourages doctors and hospitals to deny when medical errors are made, fighting even disclosures about what occurred in the hope of avoiding lawsuits and heightened scrutiny. As we have often said, such irresponsible and callous conduct does not decrease lawsuits and liability. To the contrary, such conduct often merely angers victims and their families and weakens the practice of medicine, making a prolonged conflict or a lawsuit more likely.

Recent research has confirmed our position. A recent study by the University of Michigan Health System, Brigham and Women’s Hospital of Boston (funded by the Blue Cross Blue Shield of Michigan Foundation and published in the Annals of Internal Medicine) shows that medical malpractice claims can be greatly reduced when doctors and hospitals engage in proper conduct after a medical mistake had occurred. In the study, doctors and staff members were encouraged to do the following after committing a medical error or otherwise engaging in medical malpractice:

•   tell the patient and/or his family that the error had occurred;
•   tell the patient and/or his family how the error was made and who made it;
•   tell the patient and/or his family what was being done to prevent the error from occurring again;
•   apologize sincerely to the patient and/or his family; and
•   offer to fairly compensate the patient and/or his family.

To non-medical professionals, these simple steps seem incredibly commonsense and basic. Yet our Chicago medical malpractice lawyers know that they are rarely taken. But, as the study demonstrated, when these simple protocols are followed, lawsuits and liability exposure declined – there were half as many medical malpractice lawsuits, nearly thirty percent fewer compensation claims, disputes were resolved faster, administrative and legal costs were reduced by an incredible sixty-one percent.

However, total compensation paid to victims declined, as well. This may be because hospitals have secured settlements from medical malpractice victims before they have met with an experienced malpractice attorney, who can give the patient and his or her family an idea as to the value of the case. Therefore, our fear is that hospitals will begin to use predatory tactics to settle with medical malpractice victims for pennies on the dollar, before they have had a chance to appreciate the significance of their injuries.

For better or worse, a similar protocol is spreading to the major Chicago hospitals. The University of Illinois Medical Center in Chicago has developed a “seven pillars” approach to dealing with medical errors. Much like the University of Michigan protocols, the seven pillars center around discovering and openly acknowledging medical errors, and then compensating victims and families promptly when appropriate.

Our medical malpractice attorneys applaud the University, its researchers and doctors, on their important and courageous first step. Responsible and respectful protocols like the seven pillars approach are an important step towards restoring the confidence of the American people in our hospitals and physicians, and restoring the integrity of the medical profession.

The University has received a three-year, $3 million demonstration grant from the federal government’s Agency for Healthcare Research and Quality to implement the seven pillars approach at nine other Chicago-area hospitals. The project will begin at five hospitals, expanding to four more after the first eighteen months. Specifically, the researchers from the University will look at each of the hospitals to determine how implementing the project impacts the total number of medical errors, the number and seriousness of medical error claims made against the hospitals, and the total compensation and costs incurred by the hospitals related to medical errors. They hope to publish the results in the next two years.

The University of Illinois Medical Center has naturally already implemented its own program, pre-grant. In the time since implementation, the Center has identified 56 cases of medical error – 55 of which were settled out-of-court in accordance with the protocol.

The seven pillars project is among twenty grants for demonstration and planning projects nationwide. These twenty grants contain a total of $25 million in federal funds, and are administered as part of the Department of Health and Human Services’ Patient Safety and Medical Liability Initiative.

For a free consultation with an experienced Chicago medical malpractice lawyer at Passen Law Group, call us at (312) 527-4500.

Tags: Chicago Medical Malpractice Lawhers, Hospital Negligence, Medical Negligence
Posted in Medical Malpractice | No Comments »

Tough Teenage Driving Laws Cut IL Deaths in Half

Thursday, October 21st, 2010

As many Illinois residents recall, new laws aimed at preventing teenage driving accidents went into effect in 2008. Although these tough restrictions on teen driving were highly controversial at the time, their results are undeniable. Our Chicago car accident attorneys are pleased to report the latest statistics: since the new laws went into effect, teen driving deaths have not only declined, they have been cut in half.

The laws, which were designed to prevent serious car accidents caused by teenage drivers, draw a distinction between teens aged fifteen and those aged sixteen or seventeen. A few of the new rules for fifteen-year-olds are:

To obtain a permit, drivers must be enrolled in an approved driver’s education class;
Fifteen-year-olds can only drive prior to 10 p.m. on weeknights and prior to 11 p.m. on Fridays and Saturdays;
A driver cannot apply for a license until she has practiced for at least 50 hours while supervised by a parent or other adult (21 years old or older), and at least ten of those hours must be at night;
Fifteen-year-old drivers may not use cell phones except in emergencies. Note: the same laws that now explicitly prohibit the use of cell phone while driving and texting while driving also apply to teenage drivers.

As to drivers sixteen or seventeen years old, the rules are slightly relaxed, although still far tougher than they were prior to the effect of the new laws. A few of the new restrictions are:

Sixteen and seventeen-year-old drivers are subject to the same curfews (no driving after 10 p.m. on weeknights, and 11 p.m. on Fridays and Saturdays) as fifteen-year-old drivers;
Seat belts are, of course, required;
With the exception of the driver’s brothers, sisters, and children, there may be only one passenger in the vehicle under the age of 20;
As with fifteen-year-old drivers, cell phones may only be used in emergencies, and are subject to the same laws prohibiting texting while driving and cell phone use as other drivers.

Many of the most noteworthy of the new restrictions have to do with driver training. Previously, drivers were only required to hold a learner’s permit for three months before applying for a license. With the new laws, drivers must now hold their permits for nine months before applying for a license.

In 2007, the year before the new laws went into effect, there were 146 teen driving fatalities. After the teen driving laws went into effect, in 2008, that figure dropped to 87 teen driving fatalities. And in 2009, the number of teenage driving deaths further dropped to 71, or less than half the fatalities before the new laws went into effect.

In spite of these clear facts, some are inclined to doubt the new statistics. As has often been noted in the past, driving, and recreational or nonessential driving in particular, declines when gas prices are high, or the economy is slow.

Both of these factors have been at play over the past year, and no doubt have contributed in part to the decrease in teen driving fatalities. Still, it would be foolish to presume that such a large decline in deaths was due solely to these factors. Such a dramatic change is inconsistent with simple price changes or recession. The other explanatory factor is, of course, the new laws. Our Chicago personal injury lawyers praise the lawmakers who had the courage to enact these laws, and congratulate them on the lives they have saved.

For a free consultation with an experienced Chicago accident lawyer at Passen Law Group, call us at (312) 527-4500.

Posted in Car Accident Law, Personal Injury Law | 1 Comment »

Signing of Release Precludes Negligence Liability: IL App. Ct.

Tuesday, October 19th, 2010

Our Chicago personal injury attorneys are sometimes asked to represent clients whose injuries may have been contemplated by a contract between the client and the possible defendants. Where a potential plaintiff has signed a waiver or release that may cover the claims at issue, obtaining relief can become more difficult.

Experienced personal injury attorneys such as those at Passen Law Group know that a release does not
make recovery impossible. But we also know that the best way to ensure that a release does not prevent you from obtaining the compensation you deserve after an accident is not to sign the release at all.

A recent opinion from the Illinois Appellate Court, First District confirms that the onus is on the consumer to avoid signing releases which might prevent recovery down the road – even when the consumer is affirmatively misinformed as to what she is signing.

In Oelze v. Score Sports Venture, 09-1476, the Circuit Court of Cook County was faced with an injury sustained by Ms. Oelze while playing tennis at the defendant sports club. Each of the tennis courts at the club was separated from a walkway area by a heavy curtain. When a player ran back to intercept a ball, he or she could run into the curtain, moving in up to a couple of inches.

This is precisely what happened to Ms. Oelze. Unfortunately, when Ms. Oelze ran into the curtain, a rope ladder used for conditioning had been left directly behind the curtain. Ms. Oelze’s foot became entangled in the ladder, and she fell, breaking her elbow and tearing her rotator cuff.

Ms. Oelze brought suit against the club for its negligence in leaving the rope ladder directly behind the curtain. Prior to her accident, however, Ms. Oelze had signed a membership agreement containing a release of liability broad enough to cover such a claim.

Ms. Oelze attempted to avoid the application of the release she signed by asserting that when she signed the release, she was informed by the club employee who presented it to her that it was an authorization for automatic payments of club dues. This was, in fact, correct – but the form also contained the terms of membership, including the release, facts not mentioned to Ms. Oelze by the club employee. But this information was contained on the form itself, and Ms. Oelze admitted that she did not read the form except to confirm that the payment amount listed was accurate.

The Circuit Court held on summary judgment that Ms. Oelze could not avoid the application of the release, and the Illinois Appellate Court affirmed. In doing so, the Appellate Court had harsh words for consumers such as Ms. Oelze. The court concluded that even where a consumer is affirmatively misinformed or mislead as to the contents of a form, the consumer has a duty to read that form before signing.

If a consumer does not read language contained on the form, according to the Appellate Court, then it is her own fault that she was mislead and she cannot avoid the application of the release which she had no knowledge of signing.

While this conclusion has some surface appeal, it threatens to swallow the rules of contract. The appellate court rejected the plaintiff’s assertion that she was forced to sign an “involuntary waiver” agreement. The Court noted that defendants may contract to avoid liability for its own negligence unless (1) there is substantial disparity in bargaining power between the parties; (2) to enforce the contract would violate public policy; and (3) there is something in the social relationship between the parties that would militate against upholding the contract. None of these exceptions were found to apply.

The Appellate Court expressly noted that fraud in the inducement (“when the party is induced to enter into the release by false representations by the other party”) and fraud in the execution (“when the plaintiff was induced to sign the agreement not knowing it was a release, but believing it to be another type of document”) allow a plaintiff to avoid a signed release. Yet the court still concluded that a failure to read is the death-knell of a plaintiff’s claims.

Our Chicago personal injury lawyers are disappointed with this opinion, which places an unreasonable burden on consumers. To think that corporations may contract-away their own negligence through boilerplate language on some release that most consumers don’t even read, and even if they did read, would be forced to sign in order to use the corporation’s facilities, is plainly unfair. Companies that open their property and their facilities to the public should be responsible for injuries sustained on their property caused by their own negligence. Period.

The Oelze opinion teaches consumers a valuable lesson. The sheer number of forms presented to consumers in our modern world can be overwhelming at times. Yet it behooves consumers to carefully read, or at least read, each of these forms before signing – even if told what it contains. While this can be burdensome, impractical, and unrealistic, the alternative is much worse. If you are seriously injured on the property of another, your unknowing release may preclude recovery, notwithstanding the negligence of the corporate defendant.

Our accident attorneys in Chicago will continue to represent those seriously injured or killed due to the negligence of another, even in instances where those injured signed release of liability agreements. We believe corporate accountability remains, and will use all our resources and creativity to hold those responsible accountable.

For a free consultation with an experienced Chicago personal injury lawyer at Passen Law Group, call us at (312) 527-4500.

Tags: Accident Attorney, Chicago Personal Injury Lawyer
Posted in Personal Injury Law, Premises Liability | No Comments »

Lax Healthcare Approach to Medical Malpractice

Monday, October 18th, 2010

Our Chicago medical malpractice attorneys have long railed against doctors and hospitals’ refusal to make simple changes and institute basic, common-sense procedures, which would reduce errors and complications, prevent hardships, and save lives. Now, study after study is piling up in support of this position, showing that the doctors and hospitals that implement these steps have reduced complications, errors, and even costs.

Most notably, a recent study found that when hospitals bucked the existing standard of clamming up when a medical error occurs, and instead openly acknowledging the error, apologizing, and working with the patient to make things right, medical malpractice claims dropped off dramatically and the administrative and legal costs associated with such claims dropped by an astounding sixty-one percent.

What this and other recent studies amply demonstrate is that a culture of entitlement and arrogance can no longer be permitted to flourish in our nation’s healthcare system. At present, doctors are steeped in a culture that tells them that they reign supreme, that they should not be questioned.

Dr. Peter Pronovost, an anesthesiologist and director of Hopkins’s Quality and Safety Research Group and the author of the book “Safe Patients, Smart Hospitals,” has publicly related his previous run-in with a surgeon who refused to change from latex to non-latex gloves, in spite of being informed by Dr. Provost and a nurse that the patient was in the midst of a life-threatening allergic reaction to the latex. The surgeon persisted in this arrogant refusal until the nurse picked up the phone and began to dial the hospital president. Such arrogance is unacceptable in the clinical setting where patients’ lives are at stake.

Doctors, while highly educated in the science of medicine, need more training in how to interact with other people: medical staff, nurses, pharmacists, and especially patients. They also require greater training in how to recognize and prevent unnecessary medical errors in a clinical setting.

Our medical malpractice attorneys believe that, first and foremost, changes must be made in the way American doctors are trained. If only a small portion of medical school – a single class or practicum – were devoted to these issues, the benefits would be overwhelming. Doctors must be taught, from the beginning, that the nuts and bolts of practice and error prevention are every bit as important as the science of medicine.

Some schools are already beginning to make these changes. Notably, the University of Illinois College of Medicine has begun providing this type of useful, practical training to its medical students. Our Chicago personal injury lawyers applaud the University for its efforts, and encourage other medical schools to adopt similar programs.

If all doctors learned these basic, common sense skills early in their careers, countless errors could be prevented. As proof of this point, Dr. Pronovost, routinely asks nurses about compliance with his landmark five-point checklist for preventing central line infections, about which we have previously written. Central line infections affect around 80,000 American patients each year, claiming around 30,000 lives and costing about $2 billion.

When Dr. Pronovost’s checklist, which contains such simple expedients as handwashing, was put in place at John’s Hopkins, central line infections virtually disappeared. When the checklist was instituted in certain Michigan hospitals, infection rates immediately dropped by two-thirds. Yet Dr. Pronovost states that when he asks nurses whether they would say something to a physician who failed to follow the checklist, he is “uniformly laughed at.”