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Appellate court rules: employer must pay medical expenses in workers’ compensation case

The Appellate Court of Illinois recently decided an important workers’ compensation case. The court denied an employer’s request for a rehearing in a case concerning the issue of whether the company’s intent was to stipulate to payment of certain rates for the medical treatment expenses of an employee. 

The court upheld the award of benefits to the worker and ordered the Workers’ Compensation Commission to reconsider the worker’s reimbursement request for his home modifications.

The claimant, Jeffrey Berman, was employed as a food-service manager by Compass Group. He injured his back on March 19, 2009 while picking up a 40-pound box of bottled soda. A subsequent fall led to extensive complications that required hospitalization. The claimant was awarded benefits, and the employer stipulated to a fee schedule for payments for medical expenses.

In legal settings, “stipulation” refers to an agreement between the attorneys on either side of the case about certain facts and issues. The agreements are voluntary, and they are usually intended to save time in courtroom disputes. In this case, the two sides stipulated to issues concerning the company’s obligations to its employee.

On appeal, Compass Group argued that the medical expenses should have been based on a negotiated rate rather than a fee schedule. However, the court ruled that the fee schedule must stand, because the company had entered into a stipulation agreeing to it.

The claimant also cross-appealed, arguing that it was improper for the Commission to reject his claim for reimbursement for home modifications that he undertook himself based on the recommendation of a physical therapist. The Commission rejected his claim because the modifications were not recommended by a doctor. The court ruled, though, that the recommendation of a doctor is not always required, and remanded the case for further proceedings on that issue.

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Ten million settlement follows trooper’s death

A $10.9 million settlement was reached in a wrongful death lawsuit over the death of an Illinois state trooper. The trooper was struck and killed by a truck driver who allegedly fell asleep while driving.

Elizabeth Sauter, Trooper James Sauter’s widow, filed the lawsuit against the truck driver and the companies he was working for at the time of the March 2013 accident.

The driver was also criminally charged in Cook County for violating federal hours-of-service regulations. According to prosecutors, he dozed off on the Tri-State Tollway on March 28, striking the trooper after working a 12-hour shift.

Records from the Federal Motor Carrier Safety Administration show that the driver and United Van Lines were fined $2,500 and $5,500, respectively, for violating a federal regulation prohibiting a driver from being on duty over 14 hours without taking 10 hours of rest time.

Judge Kathy M. Flanagan of Cook County Circuit Court approved the settlement after the parties reached an agreement in pre-trial mediation.

According to allegations in the lawsuit, Sauter’s squad car was parked on the left shoulder of Interstate 294. The truck driver was driving a semitrailer in the left lane when he fell asleep. The semi veered off the road, crashing into Sauter’s vehicle, the lawsuit alleged. According to court records, the truck driver worked from 6:31 a.m. to 6:32 p.m. that day loading the truck, then drove from 7:14 p.m. to 7:34 p.m., and again from 8:49 p.m. until the time of the crash at 11:03 p.m.

Illinois workers’ compensation medical fee schedule under scrutiny

In 2011, an across-the-board 30 percent cut was implemented in medical fee schedules for the Illinois workers’ compensation system. Some observers say that medical fees in the workers’ compensation system are now so low that doctors and other medical professionals may be reluctant to treat injured workers.

Doctors report that workers’ compensation payments are now lower than Medicare rates, which has an impact on access to medical care.

A study by the Workers Compensation Research Institute, a think tank funded by the insurance industry, found that prices for surgeries in the workers’ comp system remain high, while the cost of office visits may be too low.

The report claimed that if workers’ compensation prices are set below prices paid by group health insurers or Medicare, then injured workers may not have access to care. However, if prices are set higher than for other payors, then they could be lowered without affecting access to care.

The report also compared prices paid for nonhospital professional medical services and for group health prices and Medicare rates after the 2011 fee reduction. A significant difference between surgery costs and office visits was found.

The average workers’ compensation office visit cost for a condition of low or moderate severity was $62, $14 less than the estimated group health care plan price and $11 below the Medicare rate. Researchers said that policymakers should consider whether the lowered fee schedule may impair access to care.

Chicago jury awards fourteen million dollars in medical malpractice lawsuit

A Chicago jury recently awarded $14 million to the plaintiff in a medical malpractice lawsuit.

The plaintiff, Mariola Zapalski, was prescribed the birth control drug Yasmin. After taking the medication for 13 days, she suffered a stroke that resulted in a permanent brain injury and the paralysis of her left side. She now requires around-the-clock care.

The lawsuit alleged that Zapalski’s doctor should not have prescribed the medication to her because she had underlying risk factors. According to the lawsuit, her doctor also failed to warn her of the risks associated with the medication. A lawsuit against the medical center that provided Zapalski with the referral to her doctor was settled for $2.5 million, according to reports.

Yasmin contains drospirenone, which is a synthetic progestin that has been linked to an increased risk of stroke and blood clots. The Food and Drug Administration issued a warning in 2011 stating that birth control drugs containing drospirenone may carry a greater risk of blood clots than other types of birth control. Preliminary results from an FDA study suggested that the risk of blood clots is 1.5 times greater. However, Yasmin and other drugs containing drospirenone are still on the market. Bayer, the manufacturer of Yasmin, has settled other lawsuits over the drug.

Wrongful death lawsuit filed over drowning death after swan attack

The wife of a Villa Park man who died after being attacked by a swan has filed a wrongful death lawsuit against the man’s employer and against the condo complex where he was working when he died.

According to the lawsuit, Anthony Hensley had responsibility over two swans in the Bay Colony condo complex in Des Plaines. The condo complex used the swans to keep geese away. Hensley was employed by Knox Swan and Dog, the company that provided the swans to the complex.

Two years ago, one of the swans knocked Hensley out of his kayak. Hensley, wearing boots and heavy clothing, attempted to swim for shore but drowned. Witnesses said the swan continued to swim toward the man after he fell out of the kayak. He was pronounced dead at Lutheran General Hospital. Hensley was 37 and the father of two children.

According to the Chicago Sun-Times, the death was found to be an accidental drowning after an autopsy. Officials said that Hensley may have gotten too close to the swans’ nesting area, sparking the attack. According to Hensley’s father, he was a strong swimmer.

In the lawsuit, Hensley’s wife claims that the condo complex and his employer should have known that swans are territorial and are prone to attack humans.

Eleven million dollar birth injury lawsuit over Topamax stands

In a recent birth injury lawsuit, a jury award of $11 million will stand after a judge denied a defendant’s motion for a new trial.

The jury made the award in November 2013 in a lawsuit over birth injuries suffered by a child whose mother, Haley Powell, used the antiepileptic drug Topamax during pregnancy. The suit alleged that the mother’s use of the medication caused the boy to be born with a severe cleft palate and other birth injuries. Janssen Pharmaceuticals, a subsidiary of Johnson & Johnson that manufactures the drug, was the defendant in the case.

The jury found that Janssen failed to warn the mother of the risk of birth injuries from the use of Topamax during pregnancy.

In denying the motion for a new trial, Judge George W. Overton of the Philadelphia Court of Common Pleas held that the amount of the award was appropriate given the severity of the injuries. Overton noted that the boy struggles to be understood in conversation, has residual scarring from surgery, and faces future additional surgeries as well as psychological and emotional challenges stemming from the cleft palate.

At the time of the trial, Bloomberg News reported that the plaintiffs’ attorneys claimed that Janssen intentionally withheld safety reports suggesting a link between Topamax and birth injuries.

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.

Peoria Widow Wins Medical Malpractice Lawsuit

The widow and children of a Chillicothe, Illinois man who died four years ago were recently awarded $1.6 million by a Peoria County jury.
The award came after a three-week medical malpractice trial and 10 hours of jury deliberation over three days. Eventually, the jury found one doctor and OSF Saint Francis Medical Center liable for Donald McIntyre’s death in September 2009. However, St. Francis employees and a charged resident were not found negligent regarding McIntyre’s care.

McIntyre was diagnosed with autoimmune hemolytic anemia when he visited St. Francis on September 6, 2009. The condition causes red blood cells to be destroyed, limiting the oxygen that can be distributed through the body. According to the lawsuit, the proper treatment for the condition is a blood transfusion and administration of steroids, but the procedures were not followed properly. The complaint alleged that McIntyre received only two units of blood, which were not enough to stabilize his condition. He died of cardiac arrest.

The hospital has released a statement expressing its condolences to the family and saying that it agreed with the jury’s finding that OSF employees were not negligent. The hospital said it was reviewing its options in regard to the finding that the hospital was the apparent principal of the doctor who was found negligent.

Nearly $13 million award in birth injury lawsuit

A Michigan woman in a birth injury lawsuit has been awarded almost $13 million by a jury.

The lawsuit alleged that Genesys Regional Medical Center made mistakes during the delivery of the woman’s daughter, disfiguring the girl and restricting her from the full use of her arm.

The lawsuit stated that during the January 2008 delivery, the baby’s shoulder became lodged underneath the pelvic bone, a condition that is known as shoulder dystocia.

Reported instances of shoulder dystocia have greatly increased in recent decades, perhaps as a result of a corresponding increase in average birth weight.

Shoulder dystocia can often be dealt with successfully during delivery, but the lawsuit argued that the doctor pulled down on the baby’s head too much, causing an injury to the brachial plexus, a bundle of nerves near the shoulder. The lawsuit claimed that the doctor should have recommended a cesarean section or used a different method that would place less stress upon the baby.

The hospital said that the mother received appropriate treatment and that there were no complications that indicated that a cesarean section was necessary.

The baby was born with a disfigured arm. Now five years old, she has undergone several surgeries and continues to wear a brace on her malformed arm. Doctors have classified the injury as permanent and have said that it will require continued therapy.

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.

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The 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. Briskman Briskman & Greenberg also represents injured people throughout Wisconsin, including Kenosha, Milwaukee, and Madison.
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