Justia Lawyer Rating for Robert D. Kreisman

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The U.S. government has struck a deal with General Motors (GM) that requires the car manufacturer to assume responsibility for any automobile product liability lawsuits filed after GM emerges from bankruptcy as a new, government-owned company. This requirement even applies to claims regarding vehicles manufactured by the old GM.

This agreement is much better for the general public than GM’s original plan, which would have barred any new product liability lawsuits being filed against the new company. However, lawmakers had a problem with leaving the American public without any legal recourse for personal injuries resulting from car and truck product defects. The deal that resulted in the present requirement resolved this problem that could have stalled GM’s plan for a quick restructuring program.

And while future vehicle product liability claims are protected, it appears that previously filed product liability claims will likely remained tied to the old GM and therefore be tied to its bankruptcy proceedings. Typically, after a company files for bankruptcy the courts and bankruptcy protection allow that company to leave any legal claims behind so that they can emerge from bankruptcy with a clean slate.

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The Illinois First District Appellate Court affirmed a Chicago jury verdict, thereby reaffirming its interpretation of apparent authority. The Cook County lawsuit involved a woman who was treated by an emergency room doctor who was not employed by the hospital, but was instead employed by Emergency Specialists of Illinois, P.C. Yet both the trial and appellate courts felt that there was sufficient evidence in the medical malpractice lawsuit to prove that the plaintiff had believed the ER physician was employed by the hospital and therefore that the hospital was also liable for the Illinois emergency room errors. Spiegelman v. Victory Memorial Hospital, No. 1-07-3915.

The plaintiff presented to the Victory Memorial Hospital ER complaining of headaches, pain in her left ear, congestion, a sense of dizziness when turning her head, nausea, and occasional double vision. Upon her arrival she informed the ER nurse that she had a medical history of sinusitis, was allergic to penicillin, and had previously been smoking about 2 ½ packs of cigarettes a day.

The plaintiff was examined by a doctor and diagnosed with Bell’s palsy, sinusitis, and an eardrum infection. An x-ray of her sinuses was ordered and she was discharged with instructions to follow up with her primary physician the following day. However, before the patient even left the hospital she became unable to walk straight and had to lean against a wall to support herself.

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A 41 year old construction worker died when he fell through the elevator shaft of a Chicago Loop building project. The man, a carpenter by trade, was working on a tenant build-out on the 11th floor of the high-rise building when the Chicago construction site accident occurred.

It was alleged in the plaintiffs’ complaint that the building owners were negligent in violating several Illinois safety laws. In addition to failing to maintain the elevator safely or conduct basic inspections of the elevator, the lawsuit filed claimed that the building owner violated Cook County building codes preventing interlocking doors from opening unless the elevator car was present.

It was claimed that the freight elevator where the worker died was antiquated. An example given was that the doors would open while the elevator car was on a different floor. This fact played a large role in this man’s wrongful death because he apparently opened the elevator doors only to discover that the elevator car was actually more than 100 feet below. The worker had intended to enter and operate the elevator, but its absence led to his death.

The Chicago construction worker was survived by his wife and three young children. The case was settled before trial with the assistance of a Cook County Circuit Court judge. Issues of apportionment and contribution are pending between the owner, general contractors, maintenance companies and employer of the deceased.

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A $2 million settlement was awarded to the family of a 58 year-old man who died when his lung cancer went undiagnosed. The Illinois wrongful death lawsuit was filed against the decedent’s family practice physician and an emergency medicine physician who provided treatment at Alexian Brothers Medical Center. The Cook County settlement was reached before this failure to diagnose cancer case went to trial.

The decedent’s estate claimed that the Alexian Brothers emergency room physician had misread a chest x-ray taken of the decedent. However, the same film was correctly interpreted by a radiologist the following day as showing a lesion on his lung. The hospital failed to notify the decedent regarding the discrepancy in the interpretation. The decedent’s family physician became involved in the malpractice after receiving a faxed copy of the correctly interpreted radiology report, but still failed to notify the patient of the relevant findings.

As a result of the incorrect reading the man’s lung cancer went undiagnosed for 13 months. Because of the lengthy delay when his lung cancer was eventually diagnosed it was in Stage IV, giving him an extremely poor prognosis. The decedent died about three years after the initial emergency room visit.

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The Illinois Appellate Court reversed a ruling by a Circuit Court judge who had denied Illinois workers’ compensation benefits to a Circuit City employee. The main issue was whether or not the employee had been acting within the scope of his employment. Circuit City Stores, Inc. v. Illinois Workers’ Compensation Commission, No. 2-08-0722 WC.

The employee, Clinton Dwyer, testified that a co-worker had asked for his help in dislodging a bag of snack chips from a vending machine near an employee break room at his Circuit City store. Dwyer said that he tried shaking the machine, but failed to dislodge the chips. He then shook the machine from side to side, which still did not dislodge the chips. Then he hit the machine with his shoulder and hip, at which point he fell to the floor and was complaining of hip pain.

Dwyer was later taken to a nearby hospital where x-rays showed an impacted, slightly displaced fracture through the right femoral neck. He was sent to Chicago’s Rush University Medical Center for immediate treatment and underwent surgery the same day.

A Circuit City representative testified at a hearing that the snack machines were maintained near the break area for customers and “for the convenience and comfort of employees.” But Dwyer wasn’t on break at the time and was therefore in violation of company protocol when he went to the machine. However, the representative testified that Dwyer wasn’t disciplined for violating company policy.

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The number of Americans and Chicagoans suffering from chronic kidney disease has drastically increased in recent years, driven by high rates of hypertension and diabetes. Likewise the reported cases of patients with end stage renal disease has risen, which can only be treated with dialysis or a kidney transplant. And despite improvements in dialysis technology and the possibility of transplant errors, the transplant remains the most effective and preferred treatment due to its better long term outcomes and quality of life.

According to the National Kidney Foundation, almost 80,000 Americans are currently on a waiting list for a new kidney. However, not everyone is considered a prime candidate for transplant surgery.

Consider the case of a stunned patient suffering from kidney failure who was informed by a group of physicians that her mother’s attempts to donate one of her own kidneys was out of the question. Like 3 out of 10 kidney-transplant candidates, this patient had tested positive on a panel reactive antibody (PRA) blood test, which revealed that the patient had high levels of PRAs, or proteins that attack foreign tissue. So even though her mother’s kidney would have been a good match based on its blood type and tissue, the patient’s body would have attacked it.

Until recently patients with high PRA levels had little chance of success for transplantation and were oftentimes forced to remain on dialysis. In fact, as recently as 10 years ago a kidney transplant was absolutely contradicted for patients with high PRA levels. Increased PRA levels can be caused by blood transfusions, pregnancy, or a previous transplant.

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In Fletcher v. Chicago Rail Link, LLC, No. 08-1609, a recent Federal Employer’s Liability Act (FELA) case, a plaintiff’s award was reduced by 50% after the U.S. Court of Appeals determined that the District Court had erred by not factoring in plaintiff’s liability.

Fletcher was an employee of the defendant, Chicago Rail Link, LLC (CRL), who was injured when the company-owned sports utility vehicle (SUV) he was driving collided with another vehicle within the railroad yard. The injured plaintiff sued his employer under provisions of the FELA claiming that the accident was caused by the railroad’s failure to maintain the SUV in a safe condition, or to warn him that the SUV was unsafe.

The U.S. District Court for the Northern District of Illinois awarded the plaintiff damages in the amount of $700,000 and found that the plaintiff was 50% responsible for the accident. Typically when both parties are found to be liable for the injury the amount of the verdict awarded is reduced by the percentage of plaintiff liability. However, in Fletcher the jury award was not reduced and remained at $700,000.

The exception to the reduction of the judgment was based upon an Illinois Commerce Commission (ICC) provision that requires railroad company motor vehicles used by employees are maintained in a safe condition. Therefore, the Illinois District Court found that CRL’s failure to safely maintain the SUV that Fletcher was operating classified as an exception under 45 U.S.C. §54(a) and negated the requirement to reduce the verdict.

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New modifications to the Illinois Wrongful Death Act now allow victims of a wrongful death to recover damages related to grief, sorrow, and mental suffering. This new addition applies to any Illinois wrongful death case that occurred after June 1, 2007.

Prior to the passing of the recent amendment, wrongful death victims were only allowed to recover for pecuniary losses such as the loss of decedent’s society. Under the loss of society claim the plaintiff may claim damages for the loss of the benefits from the decedent’s love, affection, care, attention, companionship, comfort, guidance and protection.

And while the new amendment allows plaintiffs to claim additional losses associated with their loved one’s wrongful death, there is now the requirment of proving and assessing the value of one’s grief, sorrow, and mental suffering following the death of a loved one.

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The current standard for labor and delivery practices is to use electric fetal monitoring (EFM) to evaluate a baby’s status. Physicians and nurses will review the EFM readings in order to reduce the risks of a birth injury, such as erb’s palsy or cerebral palsy (CP), and death as a result of inadequate oxygen to the fetal brain. However, there is some concern regarding whether the EFM does more harm than good due to inconsistent interpretations of the EFM strips by both physicians and nurses.

EFM has been used in the labor and delivery setting since the early 1970s. Essentially the EFM monitors the fetal heart rate and reproduces the fetal heart tracings on both a screen and paper to enable the medical staff to determine when a baby is distressed. The readings are ultimately used to determine if the baby needs to be delivered surgically by Cesarean section or can be delivered vaginally.

However, unlike a basic medical marker like temperature or blood pressure which is not subject to interpretation, the EFM tracings can be interpreted differently by different doctors. Depending how the individual physician interprets a monitoring strip there can be a difference in opinion about the proper course of action. Recent information has show an increase in the number of c-section deliveries. For example, in Chicago almost 40 percent of deliveries are done via Cesarean.

Some critics say that this rise in c-section deliveries is the result of an increased fear among labor and delivery physicians of potential medical malpractice litigation. While a Cesarean is not necessarily a dangerous option, it still carries risks for both the mother and infant and is much more expensive than a simple vaginal delivery.

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This past Sunday, Illinois attorney Bob Kreisman participated in the 10th Annual Race Against Hate held in Evanston. The Chicago race couldn’t have asked for a better backdrop than the beautiful, sunny day. Over 3,500 persons gathered for the 5k walk, 5k run, 10k run and youth mile race. This is Bob Kreisman’s third year participating in the Race Against Hate and each year he is struck by the positive attitude and community spirit that surrounds the race.

It was a celebration of diversity to promote racial harmony in Evanston, Illinois. The annual race is held in memorial to Ricky Byrdsong, a former Northwestern University basketball coach who was murdered by a white supremacist in 1999. To mark the 10 year anniversary of the Chicago coach’s death, three Northwestern seniors created the documentary “Fly Like The Byrd” in his honor.

The event is underwritten by the YWCA Evanston/Northshore, an organization that actively works at eliminating racism. For more information on the race, contact the YWCA Evanston/Northshore by email or at 847-864-8445. Online donationsto the cause can also be made to the YWCA Evanston/Northshore.

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