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Illinois Supreme Court Rules Against Child Injured by Moving Train

The Illinois Supreme Court issued a unanimous decision overturning a $3.9 million jury award against three different railroad companies. The plaintiff was 12 years old when he was injured trying to jump onto a moving train. The Court said that a train in motion represents an obvious danger.

The Court, in a decision written by Justice Charles Freeman, found that lower courts should not have allowed the jury to determine the duty owed to the plaintiff by the defendants, and that the defendants were entitled to judgment notwithstanding the verdict.

“This determination of defendants’ duty is a question of law for the court,” Freeman wrote in the decision. “It has never been part of our law that a landowner may be liable to a trespasser who proceeds to wantonly expose himself to unmistakable danger in total disregard of a fully understood risk, simply for the thrill of the venture.”

The plaintiff is Dominic Choate, who was a resident of Chicago Ridge at the time of the incident. He filed a personal injury lawsuit against Indiana Harbor Belt Railroad Co., CSX Transportation, Inc. and Ohio Chicago Terminal Railroad Co., after losing his foot while trying to jump onto the train.

When Choate was 12 years old, he and five of his friends met in a parking lot where a freight train was passing by. Choate and another boy tried to jump onto the moving train. While the other friend only tried once, Choate kept trying. His hand slipped from the ladder and his left foot fell under the train wheels. His leg had to be amputated.

To get near the train, Choate had to make his way through a torn portion of a chain link fence. He argued that the defendants failed to adequately secure the area and failed to post warning signs, although the defendants alleged that there was a sign warning against trespassing.

In a motion for summary judgment filed before trial, the defendants asserted that they owed no legal duty to Choate because he was a trespasser, and because he should have known that leaping onto a moving train is an obvious danger.

The court allowed the jury to decide the issue of whether the defendants owed the plaintiff a legal duty. The jury found that Choate was owed a duty and that the defendants were liable, although Choate was 40 percent responsible for his injuries. Choate was awarded $3.9 million.

That verdict was affirmed by the appellate court, but the Illinois Supreme Court has now reversed it.

“A landowner has no duty to remedy a dangerous condition if it presents obvious risks that children generally of the plaintiff’s age would be expected to appreciate and avoid,” Freeman wrote in the decision.

Paul Greenberg is a Chicago personal injury lawyer and Chicago personal injury attorney with Briskman Briskman & Greenberg. To learn more call 1.877.595.4878 or visit

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State Trooper Who Caused Fatal Crash Will Not Receive Workers Compensation

Matt Mitchell, the former Illinois State Police Trooper who pleaded guilty to reckless homicide in a car crash that killed two women and injured two others, will not receive workers’ compensation payments for injuries that he sustained in the crash. The full 10-member Illinois Workers’ Compensation Commission ruled that Mitchell’s conduct was “unreasonable and unforeseeable.”

On the day after Thanksgiving in 2007, Mitchell drove his patrol car at speeds of up to 126 miles per hour, as he talked with his girlfriend on the telephone and wrote and read emails on his in-dash computer. Mitchell’s squad car jumped a median and collided with another vehicle head-on, killing Jessica and Kelli Uhl, of Collinsville. Christine and Kelly Marler, of Fayetteville, were also injured in the collision.

Mitchell suffered a broken leg from the crash, which required two surgeries and months of rehabilitation. He testified at his initial hearing that he continued to experience stiffness in his knees and ankles.

Mitchell’s workers’ compensation claim initially came before an arbitrator who was later placed on leave due to issues with her administration of the case. Mitchell then appealed to the full commission.

In denying Mitchell’s claim, the commission ruled that his actions constituted a gross deviation from the standard of care required in his duties as an Illinois State Trooper and that his conduct was willful and wanton.

Because Mitchell was an employee of the state, the commission’s decision cannot be appealed to the courts.

Paul Greenberg is a Chicago workers’ compensation attorney and Chicago workers compensation lawyer with Briskman Briskman & Greenberg. To learn more call 1.877.595.4878 or visit

Father’s Occupation May Play a Role in Birth Defects

Researchers have discovered that the risk of birth defects may be increased by the type of work the father did before the baby was conceived.

The study, by researchers at the University of North Carolina Gillings School of Global Public Health, relies on data from the U.S. National Birth Defects Prevention Study. The study is an ongoing examination of the potential risk factors that apply to the most common types of birth defects, and is one of the largest of such studies ever conducted in the United States.

The study is the most extensive to date to examine which jobs are linked to which birth defects. The researchers gathered job histories from approximately 10,000 fathers who had children born with birth defects from 1997-2004. They also examined the work histories of about 4,000 fathers of children without birth defects. The occupations were classified into 63 groups, depending on potential exposure to chemicals and other hazards.

Many jobs that might seem to carry with them certain risks turned out not to be associated with a higher risk of birth defects, including medical professionals, firefighters, automobile assembly workers, fishermen, smelters, stonemasons, soldiers and commercial divers.

Other occupations were linked to specific defects. Photographers and photo processors were linked to cataracts, glaucoma and eye tissue disorders, while artists were associated with abnormalities of the heart, limbs, mouth, eyes and ears.

Drivers were also linked with eye disorders, while landscaping workers were associated with gut abnormalities.

The researchers cautioned that the study is preliminary, and they would not advise anyone to change jobs because of the results.

Robert Briskman is a Chicago birth injury lawyer and Chicago birth injury
with Briskman Briskman & Greenberg. To learn more call 1.877.595.4878 or visit

Erb’s Palsy Leads to Birth Injury Lawsuit

A birth injury lawsuit has been filed in Cook County Circuit Court alleging that medical negligence caused a child to develop Erb’s Palsy. Christopher and Daniela Griffin filed the suit on behalf of themselves and their son, Christopher S. Griffin, Jr., against MetroSouth Medical Center and the attending physician, claiming that medical malpractice caused fetal distress during labor, leading to Christopher’s Erb’s palsy.

Daniela Griffin was admitted to the hospital for delivery of her child on December 30, 2009, under the care of a physician. The lawsuit claims that the doctor was negligent during delivery in applying “greater than gentle traction” to the child’s neck and head. The suit claims that Christopher now suffers from a permanent neurological impairment, as well as Erb’s palsy.

The Griffins allege that the doctor did not exercise a reasonable standard of care for an obstetrician. The lawsuit seeks damages in excess of $50,000 for medical expenses and pain and suffering.

Erb’s palsy is a paralysis affecting the arm that is often the result of shoulder dystocia during birth, for instance if the infant’s head and neck are pulled to the side during the birth. Depending on the severity of the injury, the paralysis may be complete or partial, and may require surgery or rehabilitative therapy, or it may resolve on its own over several months.

Paul Greenberg is a Chicago birth injury lawyer and Chicago birth injury
with Briskman Briskman & Greenberg. To learn more call 1.877.595.4878 or visit

Illinois Older Driver Laws Among Toughest in Nation

More seniors are on the road than ever before, and certain aspects of aging present a traffic safety risk. States have responded by tightening driver’s license requirements for older drivers, and the laws in Illinois are among the strictest in the country.

While age itself does not necessarily affect driving ability, seniors are more likely to have issues with their health that can affect their driving. Illnesses like arthritis and dementia present a risk, as do the use of medications, and slower reaction times. Older drivers are actually involved in fewer collisions than other motorists, because they drive less. But measured by miles driven, there is an increase in crashes after age 70, and an even larger jump after age 80.

The states vary widely in their approaches to regulating older drivers. Twenty states have no restrictions based on age. In the other thirty states and the District of Columbia, there are restrictions ranging from a requirement that seniors renew their licenses more often to additional vision testing. As for the age when the restrictions kick in, that can range from age 40 in Maryland, to age 85 in Texas.

In Illinois, starting at age 75, a driving test is required for each license renewal. Beginning at age 81, renewals must be done every two years, rather than every four. And at age 87, drivers must renew every year.

There are also strict requirements in Washington, D.C., where drivers age 70 and older must have a doctor certify that they are capable of driving safely whenever they renew their licenses. In New Mexico, annual renewals are required beginning at age 75.

There is little consistency among the states. In Iowa, drivers age 70 and older must renew their licenses every two years rather than every five. Meanwhile, Missouri requires renewals for 70-year-olds every three years rather than every six.

National guidelines have been proposed by the National Highway Traffic Administration that would bring some consistency to regulation of older drivers. If finalized, the rules would require each state to institute a safety program for older drivers. Doctors would be protected from legal action if they report drivers they think are unsafe, and driver’s licenses would have to be renewed in person once drivers reach a certain age, which each state would determine individually.

As baby boomers age, the impact on the nation’s traffic safety cannot be ignored. While today there are almost 34 million drivers over the age of 64, it is estimated that that number will jump to 57 million by 2030.

Robert Briskman is a Chicago car accident lawyer and Chicago car accident attorney with Briskman Briskman & Greenberg. To learn more call 1.877.595.4878 or visit

Federal Grand Jury Subpoenas Chicago Workers Comp Records

A federal grand jury has issued a subpoena for records spanning six years of Chicago’s workers’ compensation program.

The subpoena was issued to the Finance Committee of Chicago’s City Council. Alderman Edward M. Burke is the chair of the committee, and has authority over how workers’ compensation claims against the city are processed and settled.

The subpoena requests records for the city’s $115-million-dollar workers’ compensation program from 2006 forward, including reports of injuries, investigations and denials of claims, medical records, prescriptions and work restrictions.

The subpoena also requests the names of staff members on the Finance Committee who handle individual claims, the claims they administered, whether they were approved or denied and what policies guided those decisions.

The subpoena was issued shortly after Burke denied Chicago’s Inspector General, Joe Ferguson, access to city workers’ compensation databases. Burke said that the matter fell under the jurisdiction of City Council’s own inspector general.

Chicago’s workers’ compensation program came under fire in 2006, when an investigation revealed an unusually high injury rate. The program for sanitation workers, police officers and firefighters were subject to particular scrutiny as areas of potential abuse. Mayor Rahm Emanuel has vowed to reduce the system’s expenses by $15 million or more, and said that he welcomes oversight and investigation of the program from any source.

Paul Greenberg is a Chicago workers’ compensation attorney and Chicago workers
compensation lawyer
with Briskman Briskman & Greenberg. To learn more call
1.877.595.4878 or visit

Missouri Medical Malpractice Cap Ruled Unconstitutional

The Missouri Supreme Court has overturned the state’s $350,000 limit on non-economic medical malpractice awards.

The cap was a “tort reform” measure that the Missouri state legislature passed in 2005. In its 4-3 decision in the case of Watts v. Lester E. Cox Medical Centers, the Court ruled that limiting the awards is unconstitutional.

Doctors, hospitals and health care companies decried the decision, claiming that removing the cap would drive up health care costs and even prompt doctors to leave the state. Jeff Zohner, a Chesterfield, Missouri physician, told West Magazine that he knows Illinois doctors who choose to practice in Missouri to avoid the potential of a costly medical malpractice claim. However, fears of doctors leaving a state because of malpractice concerns have been raised before, and have been shown to be unfounded.

Trial attorneys and legal experts supported the Court’s decision, calling it a victory for Constitutional principles and for victims of medical malpractice. Mike Wolff, a professor of law and former Justice of the Missouri State Supreme Court, said that the ruling was unlikely to cause an increase in medical malpractice cases, as the number of annual cases has remained stable from 2002 to 2010, and very few cases reach the dollar amount of the former cap.

In the case that overturned the law, Deborah Watts filed a lawsuit against Lester E. Cox Medical Centers, claiming that medical malpractice had caused her son’s brain damage. She was awarded non-economic damages of $1.45 million, but the amount was reduced to the cap of $350,000. Watts argued successfully that the failure to honor the jury award amounted to a violation of her right to a trial by jury, protected by the Constitution.

Robert Briskman is a Chicago medical malpractice lawyer and Chicago medical
malpractice attorney
with Briskman Briskman & Greenberg. To learn more call
1.877.595.4878 or visit

Wrongful Death Lawsuit Against Michael Jackson’s Doctor Dismissed

Joe Jackson, Michael Jackson’s father, has dismissed his wrongful death lawsuit against the singer’s doctor, Conrad Murray, who was convicted of causing his death.

Court filings show that Joe Jackson filed a request for dismissal and that it was granted. No reason was given, but two attorneys working on the case were found ineligible to practice law in the State of California.

The initial lawsuit was filed in June of 2010, one year after Jackson’s death. A federal judge would not hear the case, and it was re-filed in California state court.

Murray’s attorney said Jackson was right to dismiss the lawsuit. The doctor is currently appealing his conviction for involuntary manslaughter.

Katherine Jackson, Michael’s mother, is pursuing a case against AEG Live, the concert company that hired and supervised Murray, claiming that the company was negligent. Murray gave Jackson doses of propofol, a powerful anesthetic, to help him sleep at night, as the singer was preparing for a heavy touring schedule. Katherine Jackson’s case is due to be heard in April.

Joe Jackson’s case claimed that Murray lied to doctors and paramedics about having administered propofol and did not keep proper medical records. Those issues were also raised in Murray’s 2011 criminal trial. The now-dismissed case sought damages for loss of income and support, pain and suffering, and emotional distress.

Michael Jackson died on June 25, 2009. Despite his unusual personal life and legal battles of his own, he remains one of the most popular musical artists of all time.

Robert Briskman is a Chicago wrongful death attorney and Chicago wrongful death lawyer with Briskman Briskman & Greenberg. To learn more call 1.877.595.4878 or visit

Switching Surgeons Leads to Medical Malpractice Lawsuits

Two recent Chicago medical malpractice lawsuits have been filed over the same alleged misdeed: patients were operated on by a different surgeon from the one they were promised. Patients sometimes go to great lengths to seek out a surgeon with particular skills and experience to perform their operation, but find later that someone else actually operated on them.

There are legitimate reasons for another surgeon to be substituted, such as the original surgeon being involved in a medical emergency. But these lawsuits allege that patients were promised a particular surgeon, but someone else carried it out, without the patient’s knowledge or consent.

Recently, a urologist at Northwestern Memorial Hospital was sued by a patient because he allegedly did not perform the patient’s kidney operation as promised. And in 2004, a Chicago orthopedic surgeon filed a lawsuit against Rush University Medical Center, alleging that a group of other surgeons were billing Medicare for operations performed by medical residents, with no supervision.

Such stories are not uncommon, but it is unclear how often they occur, because there is no system for tracking them. It can also be difficult to achieve a victory in court.

The American College of Surgeons has issued guidelines for its members that declare that it is unethical to either mislead a patient about the identity of the person to perform an operation, or for a surgeon to perform an operation when the patient believes someone else will be conducting it. The guidelines also state that the surgeon must remain in the immediate vicinity of the operation and that he or she is responsible for the patient’s welfare during the entire procedure. Further, if part of the operation is to be delegated to a resident under the surgeon’s supervision, the patient should be informed prior to the surgery.

Paul Greenberg is a Chicago medical malpractice lawyer and Chicago medical malpractice attorney with Briskman Briskman & Greenberg. To learn more call 1.877.595.4878 or visit

Drew Peterson Seeks to Dismiss Wrongful Death Lawsuit

Drew Peterson’s lawyers have filed a motion to dismiss a wrongful death lawsuit against the former Bolingbrook police officer, who was found guilty of murdering his third wife. The action came just days after Peterson’s conviction.

Peterson was convicted of the 2004 drowning of Kathleen Savio. Peterson and Savio’s two sons requested that their names be removed from a wrongful death lawsuit filed by Savio’s estate on their behalf. One son, Kris Peterson, went to the Will County Courthouse the day after he turned 18, to remove himself from the civil case. He spoke with his father during a recess in the criminal proceedings, but did not stay for testimony in the case.

Thomas Peterson, Kris’ older brother, removed his name from the case last year, when he turned 18. Peterson’s attorneys now say that under Illinois law, only a victim’s spouse or children can pursue a lawsuit for wrongful death, and therefore the case must be dismissed. While the criminal case was pending, the civil lawsuit was on hold.

A lawyer for Savio’s estate said that the wrongful death suit can still be pursued, and that Kris and Thomas may have been manipulated into removing themselves from the lawsuit. Both brothers lived with Stephen Peterson, their older half brother, after Peterson’s 2009 arrest.

Attorneys for Savio’s estate have a December deadline to file a response to the motion to dismiss. The next hearing is scheduled for February, and the lawsuit may be delayed further by the appeals that are expected in Peterson’s criminal case.

Robert Briskman is a Chicago wrongful death attorney and Chicago wrongful death lawyer with Briskman Briskman & Greenberg. To learn more call 1.877.595.4878 or visit

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The Chicago Illinois personal injury law firm of Briskman Briskman & Greenberg represents injured people throughout Illinois, including Chicago, the Chicagoland area, Joliet, Waukegan, Cicero, Evanston, Arlington Heights, Wheaton, Bolingbrook, and Naperville, as well as other cities within Cook County, Will County, DuPage County, Lake County and McHenry County.
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