Carlson Law Blog

Today, February 4, 2010, the Illinois Supreme Court released its long awaited opinion on the constitutionality of caps on non-economic damages in medical malpractice cases.  In a 4 to 2 decision, the Illinois Supreme Court determined that $500,000 limit for individual physicians and $1,000,000 limit for hospitals violated the separation of powers clause in the Illinois Constitution.  In reaching this decision the Court noted that just because “everybody is doing it” when referring to other states’s that have upheld caps, this is hardly the litmus test for the constitutionality of a statute.  Congratulations to the lawyer’s that litigated this case and to the Illinois Trial Lawyer’s Association and the constitutional challenge committee for their hard work.

Lebron v. Gottlieb (Ill. Sup. Ct. Feb 4, 2010)

If you or a family member have been injured due to medical malpractice, contact Carlson & Carlson, P.C. at 800-338-3352 to explore your legal options.  Carlson & Carlson handles product liability, personal injury, medical malpractice, wrongful death and auto accidents in Edwardsville and surrounding towns including, Granite City, Alton, Collinsville, Highland, Troy, Bethalto, Glen Carbon, Wood River, Belleville,  O’Fallon, Fairview Heights, Cahokia, East St. Louis and other communities in Madison and St. Clair County, Illinois

A few days ago, during the health care debate, Senator Richard Durbin from Illinois gave a detailed speech addressing the argument that medical malpractice cases are the real cause for the increased health care costs in this country.  In a detailed speech Senator Durbin effectively addressed many of these false arguments and pointed out that there are real victims and costs associated with medical errors.  A transcript of his speech follows.

Senator Durbin Speech of December 2, 2009 on Medical Malpractice Reform

If you or a family member have been injured due to medical malpractice, contact Carlson & Carlson, P.C. at 800-338-3352 to explore your legal options.  Carlson & Carlson handles product liability, personal injury, medical malpractice, wrongful death and auto accidents in Edwardsville and surrounding towns including, Granite City, Alton, Collinsville, Highland, Troy, Bethalto, Glen Carbon, Wood River, Belleville,  O’Fallon, Fairview Heights, Cahokia, East St. Louis and other communities in Madison and St. Clair County, Illinois.

In August 2008, the Leading Lawyers Network, a publication that works with attorneys to rate attorneys, profiled our firm.  The article, written by Wendy L. Werner, provides some insight into our firm’s track record and  philosophy.  Take a look.

Leading Lawyers Network Firm Profile

If you or a family member have been injured in an automobile or trucking accident, contact Carlson & Carlson, P.C. at 800-338-3352 to explore your legal options.  Carlson & Carlson handles product liability, personal injury, medical malpractice, wrongful death and auto accidents in Edwardsville and surrounding towns including, Granite City, Alton, Collinsville, Highland, Troy, Bethalto, Glen Carbon, Wood River, Belleville,  O’Fallon, Fairview Heights, Cahokia, East St. Louis and other communities in Madison and St. Clair County, Illinois.

As the health care debate rages on, the insurance industry is once again attempting to place the blame for rising health care costs on personal injury attorneys and victims of medical malpractice.  They have set forth many alleged facts to support their argument.  Recently, the American Association of Justice set forth a position paper that effectively rebuts these myths.  A copy of the position paper is attached below.

Five Myths About Medical Negligence

If you or a family member have been injured due to medical malpractice, contact Carlson & Carlson, P.C. at 800-338-3352 to explore your legal options.  Carlson & Carlson handles product liability, personal injury, medical malpractice, wrongful death and auto accidents in Edwardsville and surrounding towns including, Granite City, Alton, Collinsville, Highland, Troy, Bethalto, Glen Carbon, Wood River, Belleville,  O’Fallon, Fairview Heights, Cahokia, East St. Louis and other communities in Madison and St. Clair County, Illinois.

Unfortunately, in many automobile accidents, the at fault driver that causes the accident does not have liability insurance coverage.  This happens even though Illinois law requires that all motor vehicles designed for use on a public highway be covered by a liability policy with minimum liability limits of $20,000/$40,000 for bodily injury or death.  625 ILCS 5/7-601(a).  The $20,000/$40,000 language means that the liability insurance for the at fault driver must pay up to $20,000 for the injuries or death of a single person, but it cannot pay more than a total of $40,000 for all the injured persons in an accident.   The public policy reason for this law is to protect the public by securing payment for their damages.

In the event that you are injured by another driver that does not have liability insurance, Illinois law has another statute to protect the injured person.  This statute requires that all automobile insurers provide uninsured motorist coverage in the policies they issue.  215 ILCS 5/143a.  The purpose of uninsured motorist coverage is to place the insured in the same position that they would be in if the at fault driver actually had insurance.  Under Illinois law, the uninsured motorist coverage must be at least equal to the $20,000/$40,000 minimum liability limits.  However, if for example, you purchase $50,000/$100,000 or $100,000/$300,000 liability limits, the uninsured motorist coverage must be equal to the amount of liability coverage unless the insured specifically rejects having uninsured motorist coverage in excess of the statutory minimum limits.  215 ILCS 5/143a.  This means that if you have $50,000/$100,000 uninsured coverage, and you are injured by a driver without insurance your insurance company will potentially have to pay up to $50,000 for your individual damages caused in the accident.

As a result, in the even that you are injured in an automobile accident, it is important that you immediately determine whether the at fault driver carried liability coverage.  If the other driver does not have liability coverage, you will have to notify your insurance company.  Furthermore, there are different policies and procedures that must be followed when making an uninsured motorist claim.  For example, unlike a direct claim against an at fault driver with insurance that is filed in the court house, an uninsured motorist claim will often times have to be arbitrated out of court.  Further, there may also be special time limits that apply to when an uninsured motorist claim must be filed to insure there is coverage.  Because of these special rules and requirements, it is  important to consult with an attorney if you have a potential uninsured motorist claim.

If you or a family member have been injured in an automobile or trucking accident, contact Carlson & Carlson, P.C. at 800-338-3352 to explore your legal options.  Carlson & Carlson handles product liability, personal injury, medical malpractice, wrongful death, and auto accident cases in Edwardsville and surrounding towns including, Granite City, Alton, Collinsville, Highland, Troy, Bethalto, Glen Carbon, Wood River, Belleville,  O’Fallon, Fairview Heights, Cahokia, East St. Louis and other communities in Madison and St. Clair County, Illinois.

Recently, the Fifth Circuit in Huss v. Gayden, No. 04-60962, (October 15, 2009) took it upon itself to take a way a plaintiff’s verdict in a medical malpractice case.  Huss involved a pregnant woman that was provided terbutaline to prevent premature contractions and as a consequence suffered from permanent heart damage.  At trial, the plaintiff’s  expert testified the terbutaline was the cause of her heart problems.  Importantly, there was no objection at trial to the admissibility of plaintiff’s expert testimony on causation.  The defense countered with expert testimony that terbutaline could not cause heart problems.  However, the trial court, after hearing legal arguments, ruled that the defendant’s expert could not testify specifically that the plaintiff’s heart injuries were not caused by the terbutaline as his qualifications to address specific causation were lacking.  The jury awarded her $3.5 million. 

On appeal, the 5th Circuit reversed the judgment and determined the claim was barred by the Mississippi Statute of Limitations.  However, in response to a certified question, the Mississippi Supreme Court subsequently ruled that the claim was not barred by the statute of limitations.  At that point, however, rather than reinstate the jury’s verdict, the 5th Circuit ruled that the trial court abused it’s discretion in limiting the defendant’s causation expert’s testimony and remanded the cause for a new trial.  Previously, the 5th circuit had nearly always affirmed trial court’s discretionary decisions excluding expert testimony on behalf of plaintiff’s. Then in prolonged dicta,  the 5th Circuit then even went so far as to request that the trial court upon retrial conduct a Daubert analysis of the plaintiff’s expert’s with a clear suggestion to determine his opinions were unreliable.

In a scathing dissent, Judge Higgenbotham noted that the appellate court judges were letting their own personal opinions on the right to a jury trial and health care  guide their hand to reach preferred social ends through its  selective application of the Daubert criteria.  In the end, Judge Higgenbotham stated that the court’s ruling was leaving the litigants “at the mercy of panel roulette–the ‘law’ being the unchartered and legally indefensible view of two judges.”  This opinion is an example of judicial activism and the current attack on the right to trial by jury in personal injury cases.  My condolences go out to Ms. Huss and her attorneys for this result driven opinion.  Hopefully, justice will prevail in any retrial.  A copy of the recent opinion is attached.

Huss v. Gayden (Judge Higgenbotham dissenting opinion on denial of petition for rehearing en banc)

If you or a family member have been injured due to medical malpractice, contact Carlson & Carlson, P.C. at 800-338-3352 to explore your legal options.  Carlson & Carlson handles product liability, personal injury, wrongful death, medical malpractice, and auto accidents in Edwardsville and surrounding towns including, Granite City, Alton, Collinsville, Highland, Troy, Bethalto, Glen Carbon, Wood River, Belleville,  O’Fallon, Fairview Heights, Cahokia, East St. Louis and other communities in Madison and St. Clair County, Illinois.

During the current debate on national health care, medical malpractice cases and trial lawyers are once again a popular target in the blame game for rising health care costs.  A recent Congressional Budget Office report of October 9, 2009, even went so far to claim that over a ten year period reforms to medical malpractice and “defensive medicine” will result in a cost savings of $54 billion over ten years.  Strangely, the same Congressional Budget Office in annual reports in 2004, 2006, and as recently as December 2008 concluded that medical malpractice reforms would only save $5.4 billion over 10 years.  According to prior reports from the CBO, malpractice accounts for less than 2% of health care spending.  Even more importantly, recent studies cited by the Congressional Budget Office, also concluded that medical malpractice reforms would result in increased patient mortality rates.  The Congressional Budget Office determined that in 2003 there were 181,000 severe medical injuries due to medical negligence, yet only 17% of those affected file medical malpractice claims.  Further, evidence suggests that between 44,000 and 98,000 people die each year due to “preventable”  medical errors.  The numbers cited above demonstrate that focus should be on preventing errors as opposed to taking away citizen’s rights.  Senator Jay Rockefeller sent a letter to the Congressional Budget Office questioning the recent cost savings projections.  A copy is attached below.

Letter of Senator Rockefeller Concerning Tort Reform

If you or a family member have been injured due to medical malpractice, contact Carlson & Carlson, P.C. at 800-338-3352 to explore your legal options.  Carlson & Carlson handles product liability, personal injury, medical malpractice, and auto accidents in Edwardsville and surrounding towns including, Granite City, Alton, Collinsville, Highland, Troy, Bethalto, Glen Carbon, Wood River, Belleville,  O’Fallon, Fairview Heights, Cahokia, East St. Louis and other communities in Madison and St. Clair County, Illinois.

Recently I was contacted by a third year law student at Michigan State University.  He has a very informative blog on drugs and litigation relating to those drugs.  His blog can be found at:

www.dangerousdrugs.us

Drugs and medical devices discussed on the site include Duragesic/fentanyl, Fleet phospo-soda, Reglan/metoclopramide, Digitek, Gadolinium, Trasylol (Aprotinin), Kugel hernia patches, and Yaz or Yasmine birth control pills.  Further, legal documents  filed in cases concerning these drugs from around the country can be found on the site.   

If you or a family member have been injured due to a defective product, contact Carlson & Carlson, P.C. at 800-338-3352 to explore your legal options.  Carlson & Carlson handles product liability, personal injury, medical malpractice, and auto accidents in Edwardsville and surrounding towns including, Granite City, Alton, Collinsville, Highland, Troy, Bethalto, Glen Carbon, Wood River, Belleville,  O’Fallon, Fairview Heights, Cahokia, East St. Louis and other communities in Madison and St. Clair County, Illinois.

When litigating a case involving a tractor-trailer or trucking accident, it is important to keep modern technology in mind.  Recently, our firm handled a trucking accident case where our client was severly injured when she was hit by an eighteen wheeler which then fled the scene.  Fortunately, our client was able to identify the name of the trucking company that caused her accident.  After we filed suit, the attorney for the defendant claimed the truck driver did not even drive through the town where the accident occurred.  However, in discovery, our firm requested any electronic databases or global positioning service (GPS) tracking information for its trucks.  A print out of documents from the GPS tracking system proved the defendant’s tractor-trailer was involved in an accident with our client.  

If you or a family member have been injured in an automobile or trucking accident, contact Carlson & Carlson, P.C. at 800-338-3352 to explore your legal options.  Carlson & Carlson handles product liability, personal injury, medical malpractice, and auto accidents in Edwardsville and surrounding towns including, Granite City, Alton, Collinsville, Highland, Troy, Bethalto, Glen Carbon, Wood River, Belleville,  O’Fallon, Fairview Heights, Cahokia, East St. Louis and other communities in Madison and St. Clair County, Illinois.

In today’s political climate, there are once again attacks on a citizen’s right to a trial by a jury of his or her peers.  Currently, the national politicians in Washington, D.C. as part of the health care reform package are debating whether victims of substandard medical care should have their right to compensation for damages caused by negligent medical care taken away or limited.  Similarly, Illinois citizens are waiting to see how the Illinois Supreme Court will rule on whether arbitrary caps placed on medical malpractice cases brought after August 2005, are constitutional.  These “caps” provide that regardless of how badly someone is injured due to the fault of another, their non-economic damages are limited.  Currently, persons injured by the negligent treatment of a physician are limited to $500,000.00 and $1,000,000.00 in cases where they are injured due to the negligence of a hospital.  Proponents of these arbitrary caps refuse to trust their fellow citizens sitting on juries and hearing all of the evidence to follow the law and only award damages supported by the evidence.   Proponents of these caps also refuse to trust judges sworn to follow the law to use the doctrine of remittitur to reduce damages not supported by the evidence. 

Back in 1995, the Illinois legislature made a similar attack on the jury system and the Constitutional rights on Illinois citizens.  In Public Act 89-7, the legislature limited non-economic damages in all cases for personal injury or wrongful death to $500,000.00, regardless of the severity of the injury or nature of the pain and suffering.  The legislature also added roadblocks to discourage those injured from defective products from even filing a product liability lawsuit and eliminated longstanding legal doctrines such as joint and several liability.  To further discourage meritorious lawsuits, the legislation even tried to force an injured plaintiff to waive all privileged medical information, even if the medical information had nothing to do with the injuries that were subject of the lawsuit.    The legislation even went so far as to prevent the court from providing truthful instructions about the law to the jury.

Because of this legislation, many injured through the fault of another were going to be denied full compensation for their injuires.  These people included two of our clients.  Vernon Best was severely injured as a result of a defective forklift.  The family of Steven Kelso lost their son due to a collision with a Union Pacific freight train at an ultrahazardous railroad crossing that lacked flashers and gates.  When these cases were filed, our firm, with help from the Illinois Trial Lawyers Association, challenged the constiutionality of this legislation in the trial court.  After briefing and argument, the trial court declared the legislation unconstitutional on August 20, 1996.  In its opinion, the trial court noted:

. . . the public policy of this state does not deprive its citizens of access to the courts when they want to keep their private lives private, does not allow a wrongdoer to avoid accountability for his wrongs by withholding all the information to develop a case against him thereby denying the access of the injured citizen to the courts, does not make it economically unfeasible to go to court for a minor injury while depriving a severely injured person of the right to be compensated beyond a prejudged amount, does not seek to mislead juries or deprive them of the knowledge of the law, and does not allow the question of wrongdoers accountability for his wrong to be decided outside of the courtroom without regard to the facts involved.  The public policy of this state is that disputes between citizens are best decided by a jury of other citizens without the interference of an overreaching government.

  A copy of the trial court’s order is provided below. 

Order Granting Partial Summary Judgment in Best v. Taylor Machine Works and Isbell v. Union Pacific

Subsequently, after the defendants appealed the ruling, the Illinois Supreme Court in a 98 page opinion affirmed the trial court’s order, holding that Public Act 89-7 was unconstitutional in Best v. Taylor Machine Works, 689 N.E.2d 1057, 228 Ill.Dec. 636, 179 Ill.2d 367 (1997).   The Illinois Trial Lawyers Association and American Trial Lawyers Association, now the American Association for Justice, were instrumental in helping our firm with this appeal.

If you or a family member have been injured in an automobile or trucking accident, the victim of medical negligence, or injured due to a defective product, contact Carlson & Carlson, P.C. at 800-338-3352 to explore your legal options.  Carlson & Carlson handles product liability, personal injury, medical malpractice, and auto accidents in Edwardsville and surrounding towns including, Granite City, Alton, Collinsville, Highland, Troy, Bethalto, Glen Carbon, Wood River, Belleville,  O’Fallon, Fairview Heights, Cahokia, East St. Louis and other communities in Madison and St. Clair County, Illinois.