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Age Restriction in Park Not a Liability Shield

The Chicago Park District must do more to publicize playground age restrictions if it wants them to be the basis of legal immunity, a state appeals panel has ruled.

The First District Appellate Court, in an unpublished order decision by Justice Robert E. Gordon, found that signs must be posted at the park and that any ordinances restricting the age of users of playground equipment must be published in order for the park district to claim immunity.

The case, Artenia Bowman v. Chicago Park District, involved a 13-year-old girl who fractured her ankle on a slide with a hole in it, which the park district claimed was intended for children under 12. In July 2011, the child’s mother filed a complaint in Cook County Circuit Court seeking recovery of medical expenses. Bowman alleged that the park district had received several complaints about the broken slide and had failed to fix it.

The park district raised an affirmative defense, arguing that the girl was in violation of an ordinance restricting the use of playgrounds for younger children to those between ages 5 and 12. Whether or not there was a sign indicating the age restriction on the day the girl was injured remained in question, but the trial court granted summary judgment to the park district in June 2013.

On appeal, Judge Gordon wrote that there was no evidence that the park district took measures to enforce the age restrictions, and that there was no way for a child to know that such a restriction existed.

Paul Greenberg of Briskman Briskman & Greenberg represented Bowman. Greenberg noted that while the ordinance in question refers to park equipment intended for use by younger children, it does not specify which equipment or locations are age-restricted. Greenberg said that the ruling is important because the park district will now have to publicize the ordinance and/or post signs if it wants to restrict playground users to certain age groups.

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Personal injury claim not barred by workers’ compensation exclusivity, Illinois Appellate Court rules

An Illinois Appellate Court recently ruled that a worker who allegedly sustained exposure to asbestos while working for his employer between 1966 and 1970 was not barred from pursuing a personal injury claim by the exclusive remedy provisions of the Illinois Workers’ Compensation Act. The claim was not compensable under the Act, as the statute of repose had expired.

In the case of Folta v. Ferro Engineering, James Folta allegedly sustained exposure to asbestos while working for the defendant, his employer, in the time period between 1966 and 1970. Forty-one years later, on May 17, 2011, he was diagnosed with peritoneal mesothelioma. 

Generally, the no-fault compensation provided under the Workers’ Compensation Act is the exclusive remedy for workers whose injuries arise out of and in the course of their employment. However, a statute of repose limits asbestos claims under the Act to a 25-year period from the time the employee was exposed. Another statute of repose limits claims under the Illinois Workers’ Occupational Diseases Act to a three-year period.

The First District Appellate Court ruled that because the plaintiff’s workers’ compensation claim was time-barred, his injury was “not compensable under the Act,” and he could therefore pursue a civil lawsuit against his employer.

Many misdiagnosis errors go unreported

Medical errors involving surgery or drug mistakes receive a lot of attention, perhaps in part because it is often obvious that an error has been made. But research indicates that misdiagnosis may be a far more common type of medical mistake.

Experts in patient safety say that misdiagnosis, which can include delayed, missed or incorrect diagnoses, may affect between 10 and 20 percent of all cases.

Medical errors that harm patients and are the result of negligence on the part of doctors or hospital personnel may give rise to medical malpractice lawsuits. However, in the vast majority of misdiagnosis cases, lawsuits are not filed. In many cases, patients are not aware that an error was made because the misdiagnosis is never reported.

A report by Daniel R. Levinson, the inspector general of the Department of Health and Human Services, found that only one in seven mistakes or injuries involving Medicare patients are actually reported by hospital staff, even though reporting events that cause patients harm is a requirement of receiving Medicare payments.

Patients who suspect a misdiagnosis caused or worsened an injury should consult with a medical malpractice attorney to determine whether a lawsuit is appropriate to recover compensation for the harm they suffered.

Over 14 million dollars awarded in birth injury lawsuit

An Ohio jury has awarded $14.5 million to a boy who suffered a birth injury.

The jury returned the verdict against a hospital and doctor in favor of the 11-year-old boy and his mother, Stephanie Stewart. The child suffered a brain hemorrhage after a delay in his delivery, and he now suffers from cognitive delays, cerebral palsy, visual impairments and other medical conditions. The family’s attorney said that he will require lifelong care.

The lawsuit was first filed in 2004, but it was dismissed without prejudice in 2006 due to personnel issues with the law firm handling the case. The case was refiled in June 2011.

When Stewart was pregnant in 2003, she went into labor prematurely and was admitted to the hospital on three occasions, where the labor was stopped with medication, her attorney said. Stewart’s water broke on April 10, and she was admitted to the hospital again. A cesarean section had previously been discussed, and Stewart requested that her baby be delivered soon after she was admitted. But the delivery was delayed for several hours, according to her attorney. When the baby showed signs of distress, an emergency cesarean section was performed. By then, the infant had suffered a massive brain hemorrhage.

The jury determined that medical negligence had occurred, and awarded $8 million for future care, $5 million for pain and suffering, $1 million for the cost of Stewart’s services and $500,000 for economic losses.

New Illinois law allows workers to sue third-party service organizations

On June 5, 2014, Senate Bill 3287 passed both houses of the Illinois legislature and was signed into law by Governor Quinn, becoming Public Act 98-33. The law eliminates immunity for third-party maintenance or service corporations from third-party lawsuits under the exclusive remedy provisions of the Workers’ Compensation Act. 

The law went into effect immediately.

The new law was passed in response to a recent appellate court decision. In Brenda Mockbee v. Humphrey Manlift Co. Inc., the First District Appellate Court ruled that a worker who was left paraplegic after a work accident could not file a lawsuit against safety consultants who were hired by her employer, Quaker Oats.

The new law allows injured workers like Mockbee to file a civil lawsuit against a negligent third-party maintenance company hired by an employer. Independent maintenance organizations that provide independent services to an employer are thus subject to liability in court, while a service company that is wholly owned by the employer or wholly owned by the employer’s broker or insurer are still protected from civil lawsuits under the exclusive remedy provisions.

The new law “reaffirmed 45 years of legal precedent,” according to Stephen D. Phillips, president of the Illinois Trial Lawyers Association. The law does not increase workers’ compensation benefits paid by the employer.

Labor trauma can cause birth injuries

A number of birth injuries can result from trauma experienced during the labor and delivery process. Said trauma can result from mistakes on the part of medical professionals attending the birth.

Head trauma suffered during delivery can cause several different types of birth injuries, including cephalohematoma, caput succedaneum and epidural hemorrhage.

Cerebral palsy, a disability of the central nervous system, can result if the baby’s brain lacks oxygen during the labor and delivery process.

Perinatal asphyxia can also appear when a baby is deprived of oxygen. That deprivation can be caused by interference with blood flow to the baby’s brain or a drop in maternal blood pressure.

Erb’s Palsy is a paralysis of the arm resulting from an injury to a group of nerves in the arm. This condition can occur if the baby’s head and neck are pulled excessively during delivery.

Brachial plexus injuries can be caused by shoulder trauma, inflammation or tumors, and they may occur if the baby’s shoulder is stretched during birth.

A leading cause of severe illness and even death in newborns is meconium aspiration syndrome. If a fetus is stressed during delivery and inhales a mixture of meconium and amniotic fluid into its lungs, severe injury can result.

Each of these birth injuries may be caused by the mistakes of doctors and other medical personnel. An unnecessary injury may constitute medical malpractice. If your child suffered a birth injury due to a medical error, you may be entitled to compensation. Contact Briskman Briskman & Greenberg to learn more about your legal rights.

IWCC rules a close call insufficient for a mental disability claim

The Illinois Workers’ Compensation Commission recently ruled against a train operator who claimed a mental disability based on the trauma of believing that the train he was operating had struck and killed a pedestrian.

The worker was operating a train exiting a tunnel when he observed two young men running across the tracks. The operator was not able to stop the train, and he heard a thumping noise that caused him to believe that the train had run over and killed one of the men. However, upon exiting the train, the operator observed the two men running away.

The train operator sought psychological counseling for sleep disturbance, anxiety, flashbacks, fatigue and headaches. He also sought workers’ compensation benefits for a psychiatric disability.

The arbitrator in the case denied the worker benefits, finding that he was not exposed to a severe and sudden emotional shock. The arbitrator’s decision was confirmed by the commission.

The commission held that the operator had testified credibly as to the events. However, because the injured man was able to stand up under his own power, jump a fence and run away, the operator did not face the emotional shock of witnessing the aftermath of what he believed had happened.

In addition, the commission agreed with the arbitrator’s finding that the alleged mental disorder did not arise from a situation beyond the usual emotional tension and strain that workers must experience, particularly those who operate motorized vehicles.

USPS facility in Illinois cited for safety violations

The Occupational Safety and Health Administration of the U.S. Department of Labor cited a U.S. Postal Service facility in Champaign, Illinois for eight safety violations. The administration proposed fines of $144,000. During a June 2013 complaint inspection, inspectors found a lack of fall protection and energy control procedures that exposed employees to increased risk of work injuries.

The inspection found safety violations in the training provided for stopping equipment before clearing jams. Inspectors found that workers were exposed to amputation and laceration hazards due to the potential for unintentional operation of the conveyor while jams were being cleared.

The citations included four repeat violations, including failure to ensure that each device had a tagout or lockout device affixed by authorized employees and failure to conduct inspections of energy control procedures. Other violations included failure to ensure the uniform height of stairway risers and inadequate fall protection for workers clearing jams on a conveyor.

Three violations were cited as “serious,” meaning that there is a substantial probability that serious physical harm or death could occur as the result of a hazard of which the employer was aware or should have been aware.

The Champaign facility employs 294 workers. About 434,000 people work for the Postal Service nationwide.

Study shows medical malpractice claims are not causing increase in health care costs

Some still argue that high payments in medical malpractice lawsuits drive up the cost of health care, but an examination of the facts shows that this claim is false.

Between 2000 and 2011, health care spending increased by 97 percent, but the value of medical malpractice payments decreased by 12 percent. Research shows that total medical malpractice payments have continued to decrease, that such payments account for a small percentage of health care costs and that most payments are for very serious injuries.

The nonprofit group Public Citizen reviews data on medical malpractice cases each year. In its most recent report, for 2011, the group found that medical malpractice payments on doctors’ behalf had dropped for the eighth consecutive year, and had reached their lowest level since 1991.

In 2013, medical malpractice payments on doctors’ behalf accounted for only 0.12 percent of national health care costs.

According to the National Practitioner Data Bank, 80 percent of 2011 medical malpractice payments compensated victims for serious injuries such as brain damage, quadriplegia, injuries requiring lifelong care and death.

Medical errors are a serious problem with grave consequences. It is estimated that more than 700,000 Medicare patients experience a serious adverse event that is preventable each year. In 80,000 of those cases, the error contributed to the patient’s death. In contrast, only 9,758 medical malpractice payments were made on doctors’ behalf in 2011 — all leading Public Citizen to conclude that most medical malpractice errors do not result in litigation.

Family of Junior Seau objects to NFL concussion settlement, says wrongful death claims should be treated differently

The family of Junior Seau, an NFL player who committed suicide in 2012, has objected to the league’s $760 million proposal to settle a lawsuit by thousands of former players over the risk of concussion injuries. Seau’s family said that wrongful death claims should be treated differently from injury claims.

The deal has already been rejected by a federal judge, who felt it did not allocate enough money for such a large group of plaintiffs. Under the terms of the proposed settlement, $5 million would be allocated for each former player with a diagnosis of a brain condition caused by repeated blows to the head during NFL practice and play. However, attorneys for Seau’s family said that only a minimal payment of a few thousand dollars would be available for family members of retired or deceased players.

Seau died in 2012 from a self-inflicted gunshot to the chest. Later studies of his brain confirmed that he suffered from chronic traumatic encephalopathy, or CTE, a brain disease that results from repeated head trauma and that can cause dementia and aggressive behavior.

The lawsuit, filed in federal court in Philadelphia, has 4,500 plaintiffs. Up to 20,000 former players could eventually receive payment.

After the judge’s rejection of the NFL’s settlement offer, experts said that the league would likely have to negotiate a higher settlement. Seau’s family asked the judge to take their concerns into account in deciding on future settlement proposals.

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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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