Chicago Personal Injury Law Blog: July 2008

Think you're in good hands with Allstate? Think again!

In November, 2006, a Kansas City jury found that Allstate was guilty of acting bad faith when it failed to settle a claim against one of its insureds. The Allstate insured was driving drunk and crossed over the center line, resulting in a head-on collision and causing devastating injuries to the other driver and his passenger.

The Allstate insured had limits of $50,000 available to cover over $300,000 in medical bills. When the lawyer for the injured people demanded the $50,000 to settle the claim against the Allstate insured, Allstate failed to settle. This resulted in a judgment in excess of $5 million against the Allstate insured.

The Allstate insured assigned his bad faith claim against Allstate over to the people he injured, and in November, 2006, a jury found that Allstate acted in bad faith by failing to settle the claim against the insured and awarded the full amount of the judgment plus $10.5 million in punitive damages. The appeals court affirmed that judgment this week, finding that there was plenty of evidence to support the jury's verdict.

Allstate has a carefully cultivated image of being a company which treats consumers fairly. The reality is that Allstate has one of the most aggressive set of claims handling practices in the entire country. They have developed a very sophisticated strategy of reducing claims payouts and making even the most routine claims clear every possible hoop before payment is made. Where people have devastating, but less-than-obvious, injuries such as herniated discs or mild traumatic brain injury, fair treatment by Allstate is far from likely.

Of note, the news article about the bad faith verdict also noted that Allstate settled another bad faith claim in the Kansas City area after being assessed $25,000 per day in fines for refusing to follow a court order to turn over internal documents concerning their claims handling practices. The total fines amounted to over $7 million before the settlement occurred. What secrets were worth $7 million in fines?

There is a real reason that AAJ named Allstate the worst insurance company in America. If you have a significant injury and were injured by an Allstate insured, there is no real reason to think that you are in good hands with Allstate. That is a marketing tag line, not reality.

Labels: Allstate, bad faith, Car crashes

posted by Barry Doyle at 6:30 AM 0 comments

FDA gets new authority to combat sound-alike medication name problems

The FDA Division of Medication Error Prevention has been given authority to approve the names of all new drugs. This new authority was given to them to help avoid medication errors caused medications with similar names.

The phenomenon of medication errors occurring due medications having similar names is referred to as the "sound-alike" problem, and is a well-recognized problem in the pharmacy industry. Pharmacists are expected to be aware of the potential for error due to similar names such as toradol and tramadol. Well-managed pharmacies have systems in place to remind pharmacists of the potential for error due to the sound-alike problem.

Previously, the Division could make recommendations for changes, but the decision-making authority lay elsewhere. The change gives the Division the final say on medication names, and preventing medication error caused by the sound-alike problem will be a priority. This is a welcome change for medication users.

Labels: medication errors, pharmacy malpractice

posted by Barry Doyle at 9:09 PM 0 comments

The other guy got the ticket -- so what does that mean?

I was going through the news items that my feed reader is kind enough to drop into my e-mail box every day, and I saw a piece where a Florida boy was seriously injured in a truck accident when a tractor trailer failed to yield the right of way while making a left turn. The report states that he was seriously injured in the accident and goes on to note that the trucker was ticketed.

When I speak to clients for the first time, one of the points that victims often make is that the other driver was ticketed or that he/she received multiple tickets. So the real question is what significance does that have in the context of a personal injury case?

Here is the bottom line: the fact that someone gets a ticket following a traffic accident is inadmissible in a later civil trial involving that accident unless the defendant pleads guilty to the charges. The theory is that by pleading guilty, the defendant is making an admission to the truth of the charges. Anything short of that is the product of a not-so-thorough investigation and a not-so-tightly contested court hearing, and therefore has little to no probative value on the issue of who is at fault in the accident.

As a practical matter, if you are the victim of an accident and the other driver gets the ticket, you should make sure to go to the traffic court hearing. This increases the chance of a guilty plea in traffic court, which means that you can use the fact that there was a ticket and a guilty plea in the later civil case. If you get the ticket, you should plead not guilty and go to trial, even if that means that you get convicted and have to pay a higher fine. The damage you do to your civil case will cost far more than whatever fine you get for the ticket. The only exception to that recommendation is if the charge you face is a DUI, in which case I strongly recommend that you hire a very good, very experienced DUI lawyer.

Labels: Car crashes, truck accidents

posted by Barry Doyle at 8:51 PM 0 comments

"But they fixed it!!!" - A primer on undertanding use of evidence of subsequent remedial measures

Many times when I am interviewing a client about a fall on dangerous property, a construction accident, or a case involving nursing home abuse and neglect, the potential client tells me about something that the defendant did after the fact which shows their guilt:

In a premises liability case, the property owner may repair the hazardous condition of the property, or at least post warning signs about it;
In a construction accident, the general contractor may correct the dangerous condition or hazardous work practice;
In a nursing home setting, the responsible staff member may be fired or sent for retraining.

In an interview setting, I usually draw the same conclusion that the victim did: that there was a dangerous condition or practice which led to the injury and needed to be fixed or corrected. However, the law limits the use of this kind of evidence, technically referred to as subsequent remedial measures. As a matter of policy, courts want property owners and other entities to take measures to correct dangerous conditions and do not want the positive actions of the defendant (i.e., correcting dangerous practices or conditions) used as a club against them to show their liability. Therefore as a general rule, evidence concerning subsequent remedial measures is inadmissible to show that the defendant was negligent at the time of the injury.

The rule has its limitations built right in: the evidence cannot be used to show the negligence of the defendant. However, it can be used for other purposes, such as to show ownership or control. Evidence of subsequent remedial measures was admissible to show that a property owner owned a a stairwell where a client was injured. After suit was filed, the building owner disputed ownership, stating that the stairwell belonged to the operator of the parking garage at the base of the building. The actions of the building maintenance staff in putting up warning signs and caution tape was admissible to show that the building owned the stairwell in question. In another case the actions of a general contractor ordering a certain type of scaffold removed from the job site following a collapse and inspections of other scaffolds was admissible to the control of the general contractor over a job site at the time of a construction accident.

Finally, when the action is not taken voluntarily but at the insistence of a governmental agency, the rule does not apply at all. This is because the corrective action is not being taken to alleviate a hazard, but to comply with a governmental directive. This means that in a nursing home setting, actions taken as part of a plan of correction in a nursing home abuse and neglect case may be admissible in evidence.

Evidence that the defendant did something to correct a hazardous condition practice is powerful evidence of a defendant's negligence. The law limits its admission, and when it is admitted it is usually admitted with a limiting instruction to not consider as evidence of the defendant's negligence, which of course focuses the attention of the jury on how that evidence could be used for that purpose. Admission of this kind of evidence is often hotly contested and is frequently the focus of extensive pre-trial hearings.

Labels: construction accidents, Nursing home abuse and neglect, slip and fall accidents

posted by Barry Doyle at 8:30 PM 0 comments

Series of collisions claims life of truck driver

A Chicago truck driver was killed Saturday after pulling to the side of the road following a collision he was involved on I-57 near Effingham. While he was out inspecting the damage done to his truck and the other vehicle involved in the occurrence, he and his truck were struck by a third motorist traveling southbound. He suffered fatal injuries as a result of being struck by the motorist.

In situations such as this, the family of the truck driver would be entitled to obtain worker's compensation death benefits from his employer. They would also be allowed to pursue a liability claim for negligent driving against the motorist who struck him.

One potential avenue for recovery for this family would also be through the underinsured motorist coverage on the vehicle which he was driving at the time of the accident. Commercial vehicles such as the one he was driving at the time of his death carry a minimum of $750,000 in coverage, an amount well in excess of the liability limits normally carried by most motorists. If there is underinsured motorist coverage available through that policy, this can provide a substantial amount of compensation to this man's family which would otherwise not be available to them.

Our office is pursuing a case with a similar theory on behalf of another truck driver. In his case, the at-fault driver had only $25,000 in coverage, while the truck he was in at the time of his accident provided $1 million in coverage. This will provide our client with fair compensation for the herniated disc he suffered in his truck accident where he would not have received adequate compensation through the liability policy alone.

Labels: Car crashes, truck accidents, underinsured motorist claims, workers compensation

posted by Barry Doyle at 10:00 AM 1 comments

White County truck crash claims life of motorcyclist

A Grayville man is dead after a truck pulled away from an intersection into the path of the motorcycle the man was driving. The motorcycle slammed into the side of the truck resulting in fatal injuries to the motorcyclist.

This accident is illustrative of the phenomenon where many motorists simply fail to recognize the presence of oncoming motorcycles and either turn into the path of an oncoming motorcycle or emerge from a side street or a driveway into the path of an oncoming motorcycle. A study by the National Highway Transportation Safety Administration showed that in motorcycle vs. car accidents, the failure of the car to yield the right-of-way to the motorcyclist was responsible for the accident.

Truck accidents such as this create a tremendous risk of wrongful death or serious injury, such as a fractured hip, spinal cord injury, or brain injuries.

Labels: brain injury, motorcycle accidents, spinal cord injury, truck accidents, wrongful death

posted by Barry Doyle at 7:58 PM 0 comments

Sex offenders in nursing homes

USA Today ran a piece recently regarding sex offenders is nursing homes, the risk they pose to fellow residents, and some of the legislation that has been passed and is being considered in Congress and the various state legislatures.

Many are unaware of the possibility that a convicted sex offender might be admitted to a nursing home. However, like everyone else, sex offenders do get sick the way in a way that requires nursing home care. Other nursing homes accept the admission of residents suffering from serious mental illness.

Whatever the basis for the admission to a nursing home of a sex offender, nursing home administration must be aware of the presence of a sex offender and plan his or her supervision so as to avoid placing other residents at risk. Many nursing homes are heavily populated with residents who due to physical, mental, or emotional infirmities, are unable to resist sex offenders, so there is a special burden on the nursing home to assure the safety of other residents when the home decides to admit a sex offender. If the facility cannot meet that responsibility, it must refuse to accept the sex offender as a resident in the nursing home.

Labels: Nursing home abuse and neglect

posted by Barry Doyle at 9:38 AM 0 comments

Truck drivers in poor health - a safety issue

The Associated Press released an article recently detailing the numbers of truck drivers who are medically unfit to drive large commercial vehicles, but have obtained medical certificates which permit them to drive.

Regulations issued by the Federal Motor Carrier Safety Administration require that truck drivers obtain a medical certificate showing their fitness to operate a truck. The purpose of the regulations is to limit the chances that the truck driver will have a medical emergency while behind the wheel of a heavy, powerful vehicle and will lose control of the truck. In other words, the making sure that the truck driver is healthy is intended to protect the motoring public.

Unfortunately, many of the physicals are cursory, and there is no mechanism in place to prevent potential truck drivers from going from doctor to doctor until one certifies the driver, i.e., doctor shopping.

The upshot of this hole in the regulatory scheme is that there have been a number of serious truck accidents where the truck driver has fallen asleep at the wheel, had seizures, or had a heart attack, and later investigation showed that the driver's health issues were a substantial cause of the truck crash. These truck accidents have resulted in several accidental wrongful deaths and severe injuries such as hip fractures or brain injuries.

There have been a number of proposed safety regulations pending since 2001 which were intended to tighten the medical qualifications of truck drivers and to end doctor shopping, but the Bush Administration has failed to act on them. These regulations would help assure public safety, and should be enacted.

Labels: truck accidents

posted by Barry Doyle at 5:27 AM 0 comments

Motorcycle strikes Rockford pedestrian

A Rockford pedestrian suffered a broken leg Friday evening when a motorcycle left the roadway and struck him. Witness accounts indicated that the motorcyclist could not handle a curve in the roadway near the intersection of Lucille and Clara in Rockford and ended up on the sidewalk, where he hit the pedestrian. This kind of loss of control is highly suggestive of excessive speed.

The victim of this motorcycle accident certainly has a valid basis for pursuing a claim against the insurer of the motorcyclist. One avenue which should be carefully investigated is the potential for an underinsured motorist claim.

When you buy full coverage for your car, you will receive a coverage called underinsured motorist coverage. Underinsured motorist coverage applies when you carry the coverage with a policy limit higher than the at-fault driver and your damages exceed the policy limits of the at-fault driver. When that happens, your insurer will pay the damages you are entitled to, up to your policy limits.

For example, assume that the at-fault driver carried liability insurance for the state minimum of $20,000 and you had underinsured coverage in the amount of $100,000 and you sustained damages which would entitle you to $75,000 in damages. In that case, you would receive $20,000 from the insurer for the at-fault driver and $55,000 from your own insurer under your underinsured motorist coverage. That way, you would receive the full amount of compensation that you are entitled to.

A few notes about underinsured coverage .... First, it is a coverage which protects you and your family in the event of a serious accident, so when it comes time for you to buy or renew your coverage, it is something that you want to discuss with your agent. It is pretty cheap coverage, so buying this coverage will not increase your bill by much. Second, it applies even when you are not in the car. The pedestrian who was hurt in this accident would be able to use the underinsured coverage if the other conditions are met. Third, pursuing an underinsured claim can be a complex undertaking, and errors in setting up the claim can result in a loss of coverage. When the facts of an accident justify an underinsured motorist claim, they also justify hiring competent counsel to protect your rights.

Labels: motorcycle accidents, underinsured motorist claims

posted by Barry Doyle at 8:38 AM 0 comments

Fatal boating accident

A 21-year old woman was killed on July 6 when the boat in which she was a passenger was involved in a boat collision on Wonder Lake. She suffered fatal injuries to the chest, pelvis, and stomach. The driver of the boat she was in was also seriously injured.

The operator of the boat which struck them was charged with operating a water craft under the influence of alcohol. Post-accident testing showed that his blood alcohol level was .179, more than twice the legal limit of .08.

While the consequences of drunk driving accidents are well-known to the public at large, boating while intoxicated is every bit as risky. This is especially true because of the difficulties of controlling watercraft, the lack of marked lanes of travel, and the difficulties of rescue once a crash occurs.

Each year, hundreds of people are injured in otherwise preventable accidents that occur because of boating while intoxicated. When death or serious injuries occur, the intoxicated operators face the same liability for severe injuries and wrongful death.

Labels: boat accidents, wrongful death

posted by Barry Doyle at 3:42 PM 0 comments

Appellate allows SPECT scan as evidence of traumatic brain injury

In a recently published decision, the Illinois Appellate Court affirmed a trial court's decision to allow an injured plaintiff's treating doctor to testify that SPECT scan showed evidence of abnormalities consistent with mild traumatic brain injury. There, the plaintiff was involved in a rear-end accident in which he was hit from behind by a school bus. A tool in the back of the plaintiff's van was knocked loose by the impact and struck him in the back of the head.

The claim raised by the plaintiff in the case was that he suffered from a mild traumatic brain injury, and he sought to bolster his claim by evidence from one of his doctors regarding the results of a SPECT scan. The defense attacked the reliability and general acceptance in the field of the use if SPECT scans to identify mild traumatic brain injury. The trial court allowed the testimony and the Appellate Court affirmed the ruling of the trial court.

In a SPECT scan, the patient receives a radioactive substance and the testing machine measures the body's ability to process the radioactive material. When the body does not properly process the radioactive material, this is considered evidence that part of the body is not working properly. When a person suffers from mild traumatic brain injury, correlation between the imaging study and neuropsychological testing can provide powerful objective evidence of the existence of an otherwise hard-to-prove injury.

This is a very significant decision for victims of mild traumatic brain injury. Under prevailing Illinois law concerning the admission of scientific evidence, once the general acceptance of a technique is established in one litigated matter, its admissibility is presumed in subsequent litigation. That means that future victims of mild traumatic brain injury, whether caused by a car accident, motorcycle accident, construction accident, a dangerous product, or in a slip and fall accident, will not have clear the same hurdles that the plaintiff in this litigation did.

Labels: brain injury, Car crashes, construction accidents, dangerous products, legal information, mild traumatic brain injury, motorcycle accidents, slip and fall accidents

posted by Barry Doyle at 10:00 AM 0 comments

Newborn infant dies following delivery after car crash

A piece ran in today's Chicago Tribune which related the sad story of a newborn girl who was born after her mother was involved in a car accident in which she was the passenger and then died shortly thereafter. The facts in themselves are sad, but take an especially sad turn when it is revealed that the driver of the car in which the mother was riding was charged with drunk driving.

Stories where the victim of the drunk driver kills or injures a total stranger catch the attention (and the ire) of the public easily enough, but just as often drunk drivers kill or injure themselves or their passengers. This is all the more reason to not slide into the passenger seat next to a dunk driver. The part about this story which has me scratching my head is this: why did the expectant mother let him drive? If she was, like most expectant mothers, not consuming alcohol, why did she not drive?

Cases like this are a shame for everyone involved. The law does provide a remedy for the family of the deceased child, as the Illinois Wrongful Death Act does not require that the child be born prior to suffering injuries which result in his or her death. However, no matter what kind of compensation she may receive, the mother of that child will probably spend the rest of her life wondering what would have happened had she gotten behind the wheel in stead of the driver.

Don't put yourself in the position of the young mother. If you have a chance to keep a drunk driver off the road, do it.

Labels: Car crashes, wrongful death

posted by Barry Doyle at 9:21 PM 0 comments

Drag racer burned in fire

An item in the news caught my eye this weekend. A drag racer was killed in a motor vehicle accident at a drag strip when his car hit a tire lining the track and caught fire. The man suffered serious burns and died.

The reasons that this news story caught my attention is that it called to mind the issue of liability waivers. As a precondition to allowing people to take part in dangerous recreational activities such as sky-diving, paintball, drag racing, or working out at a health club, business almost always require the participants to sign a waiver releasing the business from liability should something go wrong during the activity.

When something goes wrong, the injured person or their family will sometimes seek legal advice, and one issue that always has to be examined is whether the liability waiver is enforceable, and is so, did it reach the accident at issue.

As a general rule, if the injury falls within the scope of the waiver, the waiver will be enforced. For that reason, waivers are often broadly written. However, being too broad or too specific may result in a court deciding that the waiver will not be upheld. There are also some times when the waiver will not be enforced:

Where the conduct is intentional or willful and wanton;
Where the liability waiver affects the rights of children;
Where there are other reasons that the waiver should not be enforced.

One interesting twist with liability waivers -- where an accident results in a death, there is a potential for a wrongful death lawsuit. When that is the case, the children of the deceased are beneficiaries of the wrongful death case. While liability waivers do not normally affect the rights of children, it does when their mother or father is killed. The reason for this is that in order for there to be a viable wrongful death case, the deceased must have had a right to bring a lawsuit themselves. When a parent signs away their rights in a liability waiver they also signs away the rights of their children when there is a death.

If a waiver is an issue in your case, you should always get the advice of an attorney.

Labels: Car crashes, legal information, wrongful death

posted by Barry Doyle at 8:09 PM 0 comments

Fatal hit and run accident

An Elgin man was found dead on I-55 near Channahon in the early morning hours of July 2. Other motorists reported seeing the man in the road with a vehicle, later shown to his, stopped nearby. Debris from an unknown red vehicle was found in the road near the man's body, leading authorities to conclude that the man was killed in a hit-and-run accident. An autopsy showed that the man had injuries consistent with high speed trauma from a motor vehicle.

One thing that most people are unaware about with regard to hit-and-run accidents is that the law regards hit-and-run motorists as uninsured motorists. The legal theory behind that is the law requires every car to have liability insurance which can compensate victims of negligence. When a driver of a car flees the scene and does not make his liability insurance information available to the victims, the law presumes that the hit-and-run driver did not have coverage.

Many insurance policies require actual contact between the hit-and-run vehicle and the victim's vehicle. It is not enough that a car drove you off the road and left the scene; there needs to be actual contact between the two vehicles. Many policies also require prompt notification of the accident to the company and that a police report be made promptly. Failing to comply with these requirements can result in a loss of coverage, thereby denying the victim's family any compensation

When you buy insurance, it is often worthwhile to buy uninsured motorist coverage. Uninsured motorist coverage is cheap coverage compared to liability coverage, and provides compensation directly to you and your family if there is an accident resulting in serious injury or wrongful death. At the time your policy comes up for renewal, you should be sure to inquire as to whether your policy has this coverage, and if not, how much it will cost. You will probably find that the cost is pretty minimal compared to the benefits your family will receive in the event of a serious hit-and-run accident.

Labels: Car crashes, uninsured motorist cases, wrongful death

posted by Barry Doyle at 10:03 AM 0 comments

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