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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.

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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.

Montreal Maine trustee rebuffs wrongful death claimants’ reorganization plan

The bankruptcy trustee for Montreal Maine & Atlantic Railway Ltd said that a recent reorganization plan — filed by families of people who died when one of the company’s trains derailed and exploded — is “not a serious plan.”

Robert J. Keach, the trustee, said that the plan, filed in U.S. Bankruptcy Court in Bangor, Maine on January 29, “will go nowhere” and is “facially non-confirmable,” according to Bloomberg News.

A group of wrongful-death claimants submitted the plan, which would allocate 75 percent of $25 million in insurance to the families of people who died in the July accident in Lac-Megantic, Quebec. Claimants seeking compensation for property damaged in the derailment and subsequent fire would receive the other 25 percent.

Keach said that the plan relies on the assumption that insurance proceeds, a Canadian asset, could be transferred to the United States. An attorney for the official victims’ committee said that proceeds from the Canadian insurance policy would not be turned over to a U.S. court without an agreement between both countries’ courts.

Keach also said the plan would be a bad deal for the majority of claimants. He said the plan was proposed by a “splinter group” not participating in the official victims’ committee, and that it was a tactical move related to their resistance to Keach’s plan to move the wrongful death lawsuits from Illinois to Maine.

Republicans consider limits on medical malpractice lawsuits as alternative to Obamacare

Republicans have strongly criticized President Obama’s Affordable Care Act, but they have struggled to articulate a common alternative vision for health care. While House Republicans have voted to repeal Obamacare more than 40 times, there has been less unity on proposals that replace it.

One proposal involves new limits on medical malpractice lawsuits.

Representative Steve Scalise, Republican of Louisiana, is one of several Republicans pushing for the proposed legislation, which would repeal the Affordable Care Act, place new restrictions on medical malpractice suits and provide more access to health savings accounts.

However, some Republicans oppose the concept of a big healthcare bill that would make sweeping changes. Instead, they propose a targeted approach with smaller bills that would make limited changes within Obamacare.

The Affordable Care Act sets minimum standards for health insurance coverage. It requires most Americans to purchase health insurance and provides subsidies for low-income people to get coverage. Opponents have criticized the legislation as government interference in the marketplace.

Many states have passed legislation limiting the amount of non-economic damages, such as those for pain and suffering, that can be recovered in lawsuits over medical malpractice. In other states, including Illinois, such limits have been ruled unconstitutional. At the federal level, the Supreme Court has ruled that punitive damages in any lawsuit may not exceed compensatory damages by a ratio of more than nine to one.

Wrongful death lawsuit filed against Caseyville nursing home

A wrongful death lawsuit has been filed against a Caseyville nursing home over the death of a resident who developed gangrene and had her leg amputated.

Stephanie Strickland filed the lawsuit in St. Clair County Circuit Court as the special administrator of Carolyn Strickland’s estate. The defendant is Caseyville Nursing and Rehabilitation Center Inc.

The lawsuit claims that while Carolyn Strickland was a resident of the nursing home, she received negligent care and developed osteomyelitis, ulcers and gangrene, which necessitated the amputation of her leg. The lawsuit also claims that she developed a post-surgical wound infection and sepsis, which contributed to her death.

The lawsuit claims that the nursing home was negligent in caring for Strickland. Stephanie Strickland, her daughter, is seeking over $50,000 in damages. She is currently represented by attorney Staci M. Yandle. However, Yandle currently has a pending nomination to serve as a federal judge in the Southern District of Illinois in Benton.

Nursing home neglect and abuse may be more prevalent than was previously thought. A recent study revealed that more than 30 percent of nursing homes in the U.S. have been cited for abuse. It is estimated that 2.1 million older Americans are the victims of abuse in nursing homes each year. Other evidence suggests that more than 90 percent of nursing homes fail to deliver needed care to residents.

Depakote birth injury litigation in Illinois federal court moving forward

A federal court in Illinois has ordered Abbott Laboratories to produce documents it said were “long overdue” in lawsuits alleging birth injuries caused by the anti-seizure medication Depakote.

The U.S. District Court for the Southern District of Illinois ordered the company to “exercise all avenues available” to produce approximately 4,000 documents related to the case “as soon as possible.” Plaintiffs had previously raised the issue of insufficient production of documents with the court.

The lawsuits were filed by mothers who claim that taking Depakote during pregnancy caused birth injuries in their children. The lawsuits claim that the children were born with conditions including heart defects, neural tube defects, spina bifida and other congenital malformations and injuries.

The plaintiffs include a woman who was prescribed the anti-seizure medication during her pregnancy and whose daughter was diagnosed with severe scoliosis that threatened her lungs and heart. In another case, a woman took Depakote before she knew she was pregnant, and her child was born with an extra digit. A third case involves a woman who took Depakote during her pregnancy, which she alleges was the cause of her son’s undescended testicle, which required surgery.

Depakote, also known as valproic acid, is used as a mood-stabilizing and anti-convulsant medication. It is often used to treat biploar disorder, epilepsy and migraine headaches. The drug is manufactured by Abbott Laboratories, a global pharmaceutical firm headquartered in North Chicago.

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