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May 2013 Archives

Some Recommended Sites to Visit on Bike Safety

Clearinghouse Serves Anyone Interested in Biking The Pedestrian and Bicycle Information Center (PBIC) bills itself as a national clearinghouse for information about "health and safety, engineering, advocacy, education, enforcement, access and mobility for pedestrians and bicyclists." League Represents Interests of America's Bikers Founded in 1880, the League of American Bicyclists is the oldest recreational biking group in America. In addition to extensive educational resources and training courses, the group also sponsors National Bike Month in May and the National Bike Challenge. Everything You Want to Know About Helmets The Bicycle Helmet Safety Institute is the A-to-Z authority on bike helmets. Check out their no-frills website for helmet statistics, reviews, fitting guides, teaching resources and more.  

Bike Safety Survey

Most adults stopped thinking about bike safety when they were kids or after they had kids! While bike injuries and deaths for children have dropped consistently during the past decade, the numbers for adults (and especially men) are going up.Still think you know bike safety? Well, then, match your wits with our experts and answer these 10 bike safety questions for adults.1. Riding against traffic on a two-way street or against traffic on a one-way street is:○  Recommended○  Illegal○  Dangerous, but your choice 2. When at a stop sign or red light, you:○  Don't need to stop○  May roll through the intersection if clear○  Must come to complete stop 3. A headlight must be used on a bicycle:○  At all times○  Never○  At night 4. When passing parked cars, a bicyclist should:○  Ride close to the parked cars so you don't get hit from behind, but watch for opening doors○  Ride far enough left that you won't get hit by an opening door○  Ride on the sidewalk if possible○  None of the above 5. When making a right turn at a red light or a stop sign and there is a car in the right lane, you should:○  Pull up next to the car but stay as close to the curb as possible○  Stop behind the car in the right 1/3 of the traffic lane○  Jump the curb and wait at the crosswalk to turn 6. In most states, a bicyclist:○  Must always yield to other vehicles○  Always has the right of way○  Has the same rights and responsibilities as drivers of vehicles 7. Adults must wear a CPSC helmet while biking.○  True○  False 8. Wearing a helmet has been proven to mitigate head and brain injuries:○  More than 80 percent of the time○  50 percent of the time○  All the time 9. A car is pulling out of an alley, parking lot or driveway on your right. You should:○  Make eye contact or wave if necessary○  Slow down if you can't make eye contact○  Be visible by riding with a headlight and wearing bright clothing○  Ride further left so it is easier for the driver to see you○  All of the above 10. What percentage of bicyclists age 16 and older who were killed in 2011 had blood alcohol concentrations (BACs) at or above 0.08 percent?○  35 percent○  2 percent○  10 percent○  25 percentNow, check the answers below to see how you did. Bike Quiz Answers  1) Illegal - Biking against traffic on a two-way street or against traffic on a one-way street is illegal and dangerous.2) Must come to a complete stop - When at a stop sign or red light, you must come to a complete stop just like motorists.3) At night - A headlight and a reflector must be used on a bicycle at night in most states.4) Ride far enough left to avoid opening doors - When passing parked car, bicyclists should ride far enough left to avoid opening doors. This is called "getting doored."5) Stop behind the car in the right 1/3 of the traffic lane - When making a right turn at a red light or a stop sign and there is a car in the right lane, you should pull in behind the car in the right 1/3 of the traffic lane. You will then be visible to the cars in front and back of you.6) Has the same rights and responsibilities as drivers of vehicles - In most states, a bicycle is considered a vehicle and has the same rights and responsibilities as other drivers.7) More than 80 percent of the time - Studies and statistics show that wearing a helmet has been proven very effective at mitigating head and brain injuries.8) False - No state has a law requiring adult bicyclists to wear a helmet. However most require children under 18 to wear a helmet.9) All of the above - A car pulling out of an alley, parking lot or driveway on your right is a common scenario for bicycle accidents.10) 25 percent - The percentage of bicyclists age 16 and older who were killed in 2011 had blood alcohol concentrations (BACs) at or above 0.08 percent was 25 percent.

May is Bike Safety Month

By the numbers / 675 Deaths:  In 2011, 675 bicyclists were killed in crashes, a 10 percent increase from 2010. Overall, bike injuries and deaths are down for all age groups since 1975 except for men older than age 20. Source: Fatality Facts, Insurance Institute for Highway Safety   90% No Helmet: Over the past decade, roughly 90 percent of bikers killed in road accidents were not wearing helmets. Despite this fact, only 20 to 25 percent of all bikers wear bike helmets. Source: Statistics, Bicycle Helmet Safety Institute   #1 for ER: More children go to hospital emergency departments for bicycle-related crashes than for any other sport. Source: Prevent Bicycle Crashes: Parents and Caregivers (download), National Highway Traffic Safety Administration

American Ridership Continues to Grow

Bike Safety Tips for Adults As spring spreads across the nation, bikers are popping up as regularly as the lilacs, magnolias and daffodils. Biking among adults has undergone somewhat of a renaissance in America, according to various transportation studies. And why not? Biking is great exercise, easy on the environment and perfect for sightseeing. But any time you mix bikes with motor vehicles, accidents can happen. Before you saddle up for your next ride, you should know the latest on bike safety.  

Keith Hebeisen and Sarah King Write Article on Informed Consent

Keith Hebeisen, partner, and Sarah King, associate at Clifford Law Offices, co-authored an article for the summer issue of the Illinois Trial Lawyers Association Journal entitled "The Power of Informed Consent." The doctrine "imposes upon medical professionals a pre-treatment duty to inform the patient of the material medical information relevant to the proposed treatment, specifically information, that may affect the patient's decision concerning the treatment," the authors wrote. The authors, in citing various cases and statutes, examined various defenses used by medical professionals in medical negligence cases, something on which the authors focus their personal injury and wrongful death practice. They concluded that the doctrine "is a powerful theory of liability underused by plaintiff's attorneys ... should be considered from the outset of every medical negligence case and re-evaluated as the case progresses through discovery."  

Frequently Asked Questions About Product Liability Law, Part IV, by Clifford Law Offices' Partner Richard Burke

Question: Can a person be successful in a product liability case if he or she did not use a product properly or in accord with the directions on the product? Rich: They certainly may be, yes.  And obviously the extent to which a person did not properly use a product may become an issue and may give rise to contributory negligence or assumption of the risk.  But what we often see is that a product might not have adequate instructions as to how to safely use the product or adequate warnings about inherent dangers and hazards that are part of using that product.  So, in that type of situation, one of the issues that comes into play is really the appropriateness or adequacy of the warnings, and that defective or insufficient warning can, under Illinois law, definitely give rise to a product being deemed unreasonably dangerous. Question: Can a person file a product liability case if the product came with warnings about hazards or dangers involved with the use of this product? Rich: Yes, they can.  And I probably just touched on that a little bit with respect to the last question because what we would be looking at there is the adequacy of the warnings that accompanied that product.  Did the manufacturer fail to tell the consumer about all of the hazards and dangers that they knew about?  Or did they explain those warnings in a manner and in a location on the product, or in instructions, where any average consumer realistically is going to look and be able to understand what they are talking about? Question: How would I personally be involved in a product liability case?  Would I have to testify in court? Rich: Yes.  Most likely any person who brings a product liability case does testify.  In Illinois, we have a deposition process, so usually they give a deposition in the case first and then ultimately, unless a case has settled, it will proceed to trial.  The person who has been injured, will testify at trial about their purchase of the product, about their expectations as to its use and about how they believe the product failed and caused injury to them. Question: What role do expert witnesses play in proving a product liability case? Rich: Experts are very important in product liability cases, and the more complicated the product and the more serious the injury, usually the greater number of experts that are needed.  Basically, we are usually talking about products that have some mechanical or scientific aspect to them, so we frequently utilize experts that have experience in the design of the type of product that is at issue.  They give testimony as to why the product failed, as to why it was dangerous in its design, and the type of alternative designs that existed that could have been utilized to make the product safer. Question: A lot of people are worried about their finances.  What does it cost to bring a product liability case? Rich: That, too, varies on the type of product involved, the scope of litigation and the number of experts that are needed in any particular case.  Clifford Law Offices has regularly represented clients in product liability cases where we normally advance the funds needed to hire the experts for these types of cases.  Sometimes its $5,000 or $10,000, but we literally have spent over a half a million dollars in certain types of serious motor vehicle product liability cases in putting together all of the expert testimony, evidence and inspections that we know are necessary to successfully prosecute the case in court. Question: Any final thoughts when it comes to product liability? Rich: I think that most product liability cases play an important role in our society because consumers are entitled to have an expectation that a product they pay money for is going to perform in a manner that they expect.  When that doesn't happen, consumers need a legal means to seek compensation for their injuries.  The manufacturers are the only ones who had the ability to properly design and manufacturer the product.  When there is a defect in the product, a product liability lawsuit is the only thing that causes manufacturers to have the incentive to design and manufacture their products in a manner that is safe, and in a manner that will prevent injury to consumers when that product is used in a reasonably foreseeable manner.  

Bob Clifford Speaks to Young Lawyers

Robert A. Clifford, senior partner at Clifford Law Offices, closed out a three-hour program and spoke to a group of lawyers on closing arguments at the Young Lawyers Section Trial Techniques Seminar at the Chicago Bar Association (CBA). Clifford, along with Colin Smith of Holland & Knight, William Spiro of Law Office of William B. Spiro, and the Hon. James Shapiro of the Cook County Circuit Court, spoke on the various elements of a trial to attorneys at the CBA as well as those watching on the web.  Adam Sheppard of the Sheppard Law Firm of Chicago moderated the program. "Closing argument preparation starts at the beginning of the case," Clifford told the group.  "Facts matter.  You can be as golden tongued as you want to be but it doesn't matter if you don't know the facts.  You must also have a command of the jury instructions." Clifford went on to explain how he puts a "C" next to every point made during the trial or whenever he has a poignant point, even if it comes in the middle of the night, accumulating these thoughts to put in his closing argument, always ending on a pre-planned "high point." 

Frequently Asked Questions About Product Liability Law, Part III, by Clifford Law Offices' Partner Richard Burke

Question: Do I need to have the product to file a product liability case? Rich: For all practical purposes, yes.  And I certainly caution consumers to keep and preserve any product that they believe have caused them injury as a result of any defective design.  That's unquestionably the most important aspect of any product liability case.  The product is going to be evaluated by us and our experts to determine why the product was defective and how it gave rise to injury.  When a lawsuit is filed against a product manufacturer, their lawyers are certainly entitled to inspect the product as well, and one of the first things that really occurs in these types of cases is to have an inspection of the product by both sides.  So it is very important to preserve the product and for all practical purposes it is essential to have it in order to successfully prosecute a product liability case. Question: Who can be held responsible in a product liability case?  The retailer or manufacturer? Rich: The short answer is both.  Frequently, and probably more often than not, the manufacturer is the entity that is really responsible or has a good part of the responsibility because they are involved in the design and the manufacture of the product.  They frequently are the ones that have designed and placed any warnings on the product itself or the product packaging.  However, in Illinois, the retailer or the seller of a product can certainly be held responsible, as well, in many circumstances.  If you think about it, it's really the retailer who is the entity who most likely has had the most recent, and sometimes only, contact with the actual consumer who gets injured.  So, particularly with motor vehicles, it's the retailer that often has persuaded a consumer to purchase a particular vehicle by emphasizing certain features of the vehicle and perhaps not explaining fully all of the risks that might exist in a vehicle, or any other type of product for that matter.  So, definitely, a retailer or seller of products can also have responsibility. Question: What type of inspection of the product do you conduct as a part of an evaluation of a product liability case? Rich: The nature and scope of the inspection certainly varies depending on the particular product.  In any case, certainly there is an initial inspection that consists primarily of a visual-type inspection.  Often it involves taking pictures and taking measurements. Sometimes activating or turning on a product.  That is usually a preliminary type of inspection.  Secondly, in almost all product liability cases, there is a more detailed inspection where some component part of the product is taken apart or dismantled so that experts hired by both sides can have an even closer look at the design of the product, and make a determination as to why the product failed and why it gave rise to injury.  Those type of inspections certainly should not be done until a lawsuit has been filed and both sides are involved in a case.  When I say both sides, I mean the attorney on behalf of the injured consumer and the attorneys for the manufacturer or seller of a product.  That is what we refer to as a destructive inspection of a product, where it literally is dismantled to some extent, and usually there is a protocol or procedure that is agreed upon by lawyers for both sides to accomplish a proper dismantling of the product. Question: Can a person who is injured by a product be successful in a product liability case, even if he or she did not personally buy the product or if he or she was not using the product? Rich: Certainly a person has to be using the product in order to bring any type of product liability claim.  The exception there would be if you are an heir of somebody who has been killed.  But with respect to the first part of that question, yes, it does not necessarily matter if you personally have purchased the product.  We often see passengers in vehicles injured, and they are not the owner of the car or the truck or the SUV, but they are fully entitled to bring a product liability claim if they have been injured as a result of some defective or unreasonably dangerous condition in that vehicle.  Essentially the law protects users of products as long as they are using it in an expected manner and are doing so generally in accord with the directions and instructions on the product.  

Automobile Accidents: IDOT Memorial Weekend Campaign Addresses Fatalities

When the Illinois Department of Transportation (IDOT) discovered that 81.5 percent of those who died in early morning (3 a.m.-4 a.m.) automobile accidents from 2008 to 2012 were not wearing seat belts, it wasted no time in launching a campaign to help reduce the number of fatalities in Illinois auto accidents. That campaign is known as the 2013 Click It or Ticket mobilization, which runs now through Memorial Day weekend. IDOT, along with state police and local law enforcement agencies, will be conducting not only seat belt checks but also roadside safety and drunk driving inspections. Illinois drivers can expect to see the influence of the campaign all across the state, where offenders of seat belt and drunk driving laws will be ticketed or arrested. While the heaviest of checks will be performed during rush hour in the morning and afternoon, as well as the late night hours, motorists should be prepared to stop at any time. Seat Belt Statistics in Auto Accident Cases Due to the high number of automobile accident fatalities that were not wearing seat belts, the bulk of the campaign is aimed at seat belt law violators. From 2008 to 2012, seat belt use declined significantly in the 4 p.m. hour on Illinois roadways. Even more alarming is the dramatic drop in seat belt usage from 9 p.m. until 6 a.m. It was during these late night hours that the percentage of fatalities not belted were the highest, ranging from 46.8 percent to 81.5 percent over the course of those nine hours. The Click It or Ticket campaign will work to reduce the number of drivers not wearing a seat belt in order to help save more lives.

Frequently Asked Questions About Product Liability Law, Part II, by Clifford Law Offices' Partner Richard Burke

Question: With respect to motor vehicles, what type of incidents might give rise to a product liability case? Rich: We certainly see these cases arising out of what are often just the very basic types of traffic accidents that occur on the highway everyday.  You have to keep in mind that vehicles are known and expected to be operated at highway speeds, which in many instances, especially when you get out into some rural areas, the speed limits are literally 70mph or 75mph.  But even at much lower speeds, we see rear impacts where a seat back may fail, and by that I meant the back of the driver's seat will collapse backwards.  The unfortunate effect of that is to propel the occupant, either driver or a passenger, backward in their seat.  They can be driven upwards so that their head impacts the interior roof of the car, or they can hit a rear seat and cause compression fractures to their neck, resulting in spinal cord type injuries that usually cause some degree of paralysis. Question: What does the term, crashworthiness mean and how does it relate to product liability cases? Rich: Crashworthiness really refers to the capability of a vehicle or component parts to, in the most basic sense, be crashworthy, and by that, I mean to be able to withstand a crash and not cause or enhance injury to an occupant.  Vehicle manufacturers know and expect that their cars and trucks and SUV's are going to be involved in collisions  -- that's simply a known fact and it happens everyday and, therefore, the government requires, and the manufacturers have an obligation to design vehicles with the expectation that the vehicles are going to be involved in reasonably foreseeable crashes.  And the interior parts of the vehicle have to be designed so as to be certain not to enhance or increase injury to an occupant in the event of a crash.  A vehicle may roll over because of a defect in the center of gravity that causes the vehicle to have too high of a center of gravity that results in it rolling over unexpectedly.  However, even after that occurs, the roof of the vehicle should not cave in to the interior compartment of the vehicle and cause further injuries.  Or in a rear-impact type collision, a consumer does not expect the seat to collapse, so as to then propel their body backwards giving rise to a head injury inside of the vehicle.  Or even if there is a front-end collision, an air-bag is expected to go off in order to help reduce the potential injury.  So crashworthiness really relates to the obligations of vehicle manufacturers to help prevent and minimize injury to occupants during known and expected vehicle collisions. Question: What do I have to show to be successful in a product liability case? Rich: Basically, the legal standard is simply that you are proving that the vehicle is unreasonably dangerous and in Illinois, at the present time, there are basically two ways to accomplish that in terms of method or proof.  One is often referred to as the Consumer Expectation Test.  That really means that we have to prove that the product failed to perform as a consumer would reasonably expect it to perform when the product is being used in a normal and expected manner.  A second way of proving a product to be unreasonably dangerous is by evidence that gives rise to a Risk Utility Analysis.  That essentially involves circumstances where even if the product performs as expected, the product still may have risks that outweigh the utility or usefulness of the product, and in those instances, we show that there are other types of reasonable alternative designs, that could have been employed and could have been used for a safer design and could have been accomplished at a similar price or without any significantly greater cost to the manufacturer.  

Frequently Asked Questions About Product Liability Law by Clifford Law Offices' Partner Richard Burke, Part I

Richard Burke, a partner at Clifford Law Offices, has a great deal of experience in the area of product liability law in sorting through complex cases that involve when something goes wrong with a product.  Which can be anything from unsafe BBQ lighters to children's games.  He spends much of time handling motor vehicle liability cases involving rollovers of SUV's that can be caused by defects in tires, seats and airbags.  Rich was an Assistant State's Attorney in Cook County for 12 years before joining Clifford Law Offices more that 20 years ago. Question:  What is a product liability case? Rich: A product liability case is a claim that arises as a result of a condition in a product that has rendered that product defective and it makes the product unreasonably dangerous.  Basically there are three categories by which a product can be deemed to be unreasonably dangerous.  That can occur either as a result of a manufacturing defect that gives rise to a defective condition in a single product purchased by a consumer, or secondly there can be a defect in the design of a product that gives rise to an entire category of products as deemed dangerous, and thirdly, a product can be considered to be unreasonably dangerous as a result of being sold to consumers with inadequate warnings about the risks of the product and the inherent dangers, or without providing proper instruction to the consumer as to how to safely use the product. Question: What types of products are involved in product liability cases? Rich: Probably every conceivable type of product that any average consumer comes into contact with has the potential to be the subject of a product liability case.  Unfortunately, almost any type of product can end up with a design that renders it unreasonably dangerous.  We frequently see at Clifford Law Offices defects in the design of motor vehicles, sport utility vehicles, trucks, and passenger cars.  With respect to defects in the design of vehicles, they may encompass the seat backs, the seat belts and deficiencies in the strength of the roof design.  We also see products such as children's games that have toy pieces that are simply too small to safely be used by children.  I've seen children's games where the pieces disintegrate the minute it is put in a child's mouth.  The parts start unraveling and the child can swallow them.  We see and handle cases involving defects in component parts of aircraft, household appliances and inadequate wiring that give rise to fires.  Factory equipment such as conveyor belts that don't have emergency shut-off switches and barbeque lighters with inadequate safety guards have caused serious injuries to our clients.  Virtually, every conceivable type of product unfortunately sometimes can be put on the market with an unsafe design that renders it unreasonably dangerous. Question: Can you provide us with a few examples of the types of product liability cases that you handle? Rich: I just alluded to children's games a moment ago, and those are ones that I find terribly tragic because it's very unsuspecting for parents and obviously for a young child, but I had a case not too long ago that we successfully resolved, in which there were component parts of a building-block type game that were swallowed and were a size that could be easily swallowed.  The minute that the game piece ended up in the digestive track of the child, it disintegrated and ended up causing blockages in the child's intestinal system, giving rise to emergency surgery and future injuries concerning the functioning of her digestive track.  We see those types of cases.  We see defective cribs with side-rails that can come down without any notice.  As I mentioned, we handle a lot of cases involving motor vehicles and sport utility vehicles.  A lot of times, when a vehicle rolls over, it ends up on its roof and the roof crashes or caves in, coming into contact with the occupant.  The minute there is contact between the roof and the occupant's head, that can often give rise to brain injury or compression of the spinal cord, or fractures to the spinal cord which result in paralysis and quadriplegia.  A lot of times we see tires that blow because they have not been designed and manufactured properly with appropriate liners to withstand the riggers of being out in either very hot weather or very cold weather.  A moment ago, I referred to barbeque lighters.  We've unfortunately seen cases where children have been burned because a young sibling has literally been able to activate the lighter and those are very sad and unfortunate types of cases.  I am handling a case right now involving a woman who was very severely injured when her car came into contact with the back of a semi-tractor trailer.  As a lot of your listeners may realize, when they are on the road, if they look at the back of a semi-tractor trailer, they all have what's known as a rear-impact guard that comes down at the very back of the vehicle.  That bar is designed to prevent a car from riding underneath the trailer.  Unfortunately, we have instances where those rear-impact guards actually fail because they haven't been designed with a strong enough system of screws and bolts to keep them in place, and the minute it fails, that allows the vehicle to under-ride the trailer.  So, all of those types of defective products can give rise to some very tragic occurrences, and very severe and permanent injuries to our clients.  

Reducing Auto Accidents: Illinois School Zone Legislation

New legislation for school speed zones passed the Illinois House on April 19, 2013, and now the Illinois Senate holds in its hands the safety of thousands of school-age children. Not to mention the motorists who, should the bill pass, will need to use more caution when driving through designated school zones to avoid auto accidents and fines. New Speed Zone Proposals As the Chicago Tribune reported, data shows that most auto accidents in which school-age pedestrians are hit by vehicles occur at 3 p.m. with the next highest number of cases occurring at 5 p.m., 4 p.m., 6 p.m., 7 p.m. and 2 p.m. respectively. The current 20 m.p.h. speed limits are only in effect from 7 a.m. to 4 p.m. on school days when children are present, but the data shows that a large number of autos are involved in accidents in school zones outside of those hours. That's exactly what the new law aims to address by enforcing the 20 m.p.h. rule in a school zone any time a child is nearby, even if school is not in session. This includes weekends and holidays. Hoping for Less Auto Accidents If the new legislation passes the Illinois Senate, it could mean fewer auto-related accidents in school zones and greater safety for children. Clifford Law Offices, a firm of dedicated Chicago car accident attorneys, is familiar with auto accidents in school zones. In the past, Bob Clifford was awarded a $24.1 million verdict for an 8-year-old Chicago boy who was struck by a bus in a school crosswalk. The accident lawyers at Clifford Law Offices have the talent and resources to represent victims of school zone accidents. For more information call the firm at (800) 899-0410.  

Talking with Sarah King

Sarah King is a new hire at Clifford Law Offices, but she is articulate and intelligent in expressing her views on why she wanted to become a lawyer -- a profession that helps others and that includes continuing legal education.  Her desire to help people to navigate the civil justice system and have their day in court, especially for the medical malpractice victims she represents, is interesting to hear.

Talking with Richard Burke

Richard Burke talks about his knowing that he wanted to become a lawyer in college.  He speaks about the fulfilling part of being a trial lawyer.  Listen to his comments.

Kevin Durkin Sponsors Chicago Police Memorial Annual Run/Walk

Kevin P. Durkin, partner at Clifford Law Offices, was a sponsor of the Chicago Police Memorial's 9th Annual Run/Walk to Remember.  Durkin, who also is a member of the Chicago Police Memorial Board, along with several staff members of Clifford Law Offices, participated in the 5K event May 4, 2013. The organization is dedicated to honoring the lives of Chicago Police officers who were killed or injured while on duty.  Shannon McNulty, partner at the firm, also has been involved in this worthy cause for many years. The race took place at Gold Star Memorial Park adjacent to Soldier Field in Chicago.

5 Things to Do When Personal Injury Occurs

When a personal injury occurs - whether it is from an auto, work, property or other type of accident - it can be emotionally taxing on the individuals involved. It is also one of the most crucial times to gather evidence in the event you need to file a lawsuit. Here are five things to do in case of personal injury:

Stryker Hip Recalls: What You Need to Know

Ever since the Stryker hip recalls of the Rejuvenate hip implant and the ABG II hip replacement device in 2012, patients have been filing lawsuits against the manufacturer. As cases continue to mount, it is important for those who undertook hip surgery to know how to pursue the most effective litigation.Facts about Stryker Hip RecallsFact: The manufacturer voluntarily initiated its own recall of the Rejuvenate and ABG II devices on July 6, 2012, noting that fretting and corrosion of the modular neck junctions could pose a risk to patients.Fact: According to the same press release, Stryker also terminated the distribution of these products after post-market surveillance.Fact: As part of the Stryker hip recalls, the manufacturer offered reimbursement to patients for certain testing and surgery, and hired a claims management company to help with resolving the claims.How to Pursue Litigation Regarding Stryker Rejuvenate and Stryker ABG IIIf you believe that you had one of these recalled devices implanted as part of your hip surgery, there are certain steps to take to ensure proper legal action:Contact your surgeon to find out if you have either the Stryker Rejuvenate hip implant or the Stryker ABG II hip replacement device. Speak with a Chicago product liability lawyer before settling any claim with Stryker. The attorney can help you decide if you have a legitimate cause for legal action.Experience is Important in Defective Medical Device CasesWhen going up against large manufacturers, it is beneficial to you to work with an attorney who is experienced in handling cases of defective medical devices.Clifford Law Offices represented a number of recipients of the recalled Sulzer hip devices, which resulted in settlements nearing a combined one billion dollars as part of a multi-district litigation.As a client-focused product liability firm, Clifford Law Offices believes that each case is unique and deserves its own dedicated resources.For more information on the firm and the Stryker hip recall, watch this video featuring Bob Clifford, founder and senior partner at Clifford Law Offices.

Part VI - Frequently Asked Questions About Medical Malpractice Lawsuits with Susan Capra, Partner at Clifford Law Offices, and Nurse - Costs and Fees in Medical Malpractice Cases and What You Can Do

What are the costs and attorneys' fees associated with a medical malpractice lawsuit? Susan: Medical malpractice cases can be very costly to prosecute.  We are talking tens of thousands of dollars.  And the attorney will pay these costs and be reimbursed at the end of the lawsuit if we are successful.  But the biggest cost I think in any medical malpractice case is expert witnesses.  A doctor to simply review medical records can charge $300 to $500 an hour.  If they come in and give a deposition, the deposition may cost thousands of dollars; and if they come in and testify at trial, they are giving up a day of their practice, so they might charge $10,000 to testify a day at trial.  So you can see if you have five of six experts on a case how the costs can go up very rapidly and you need these experts to prove your case. Records, duplication of records can get expensive in these cases.  And depositions can get expensive.  Every time a deposition is taken, the transcript is typed up by the court reporter and there is a cost associated with that.  So that is cost. The other element is attorneys' fees.  In January, 2013, a new law was signed by the Governor in Illinois that caps attorneys' fees at one third. Question: Are doctors required to carry malpractice insurance? Susan: There is no statutory requirement in Illinois for a doctor to carry malpractice insurance and it's not tied to licensure as you might expect.  I know that my Dad recently renewed his driver's license and he has to show evidence of insurance when he did that.  Not so with medical malpractice.  But in actuality, almost all doctors do carry malpractice insurance.   And it's a requirement usually to get staff privileges at a hospital.  A hospital will make sure they have medical malpractice insurance and it's not a concern if you go to some of the larger healthcare institutions that actually employ the doctors because hospitals to carry ample insurance. Question: What is the conspiracy of silence? Susan: It's a very good question and it is a very real phenomenon out there.  Often times, physicians who will review records as an expert will be happy to review the records and help us behind the scenes, but when it comes to giving an opinion in public or taking the stand at trial, they don't want to do that.  Or, we may have a client that comes to us and they will tell us that their new doctor is very critical of their old doctor and will help their case.  They may actually tell the client, go see a lawyer.  But then when we contact them, it's a different story.  Or in a deposition, they clam up.  I think it's very hard for a doctor to testify against a colleague.  They might see this doctor three weeks from now at a professional meeting, and it could be very uncomfortable and very difficult.  And it could affect referral patterns.  Many doctors depend on referrals for their patient populations.  So they don't want to do something that could harm their business.  And some doctors have actually been criticized or persecuted by other members of their profession for being an expert witness.  So this conspiracy of silence is simply doctors refusing to publicly point out the negligence of another doctor.  It's difficult for a doctor to get up there and say that another colleague has committed malpractice and that's why we are grateful for the courageous doctors that will do that on behalf of our clients. Question: What if anything can I do to prevent myself and my family from being victims of medical malpractice? Susan: That's a very good question. I think the most important advice that I could give was that you have to be an involved and savvy healthcare consumer.  You have to be an active member of the healthcare team.  Do research, get on the internet and research a potential physician you are going to see.  Most physicians have privileges at hospitals.  Hospitals have websites.  You can get on a hospital website and learn about the doctor's training and experience, where he has practiced before.  The internet, I think has changed what a patient can do now before going for healthcare.  I encourage you to get on the internet, on Google.  It doesn't have to be complex medical research. Google is wonderful; Wikipedia is great.  It will give you an idea of what your disease is about and what the treatment is.  Knowledge is power.  Another thing that you can do is determine if your doctor is board certified.   After training, a doctor can go on and take an additional examination that recognizes special competency in an area.  For example, a doctor can be board certified in obstetrics and gynecology and they have to sit through a special exam.  Now they are not required to be board certified, but that is an indication that they have special competency and expertise. Question: Any final thoughts? Susan: I again, would encourage your listeners to be very active participants in their healthcare and if they do feel that there has been malpractice in their treatment, contact a professional and have their case reviewed. Susan Capra, a partner at Clifford Law Offices in Chicago, discusses medical malpractice.  Susan is also a registered nurse and has combined her medical knowledge with her legal education to help those who have been injured by healthcare professionals.  She understands all that it takes to put together a successful medical malpractice case because these matters are highly complex.

Talking with Sean Driscoll

Sean Driscoll followed in his father's footsteps in deciding to become a lawyer, his mentor in life.  He recalls even the moment he decided to become a plaintiff's personal injury attorney -- a story with an interesting twist that deals with the second mentor in his life.

Part V - Frequently Asked Questions on Medical Malpractice Lawsuits with Susan Capra, Partner at Clifford Law Offices, and Nurse - What Happens After the Lawsuit is Filed

Question: What will happen after the medical malpractice lawsuit is filed? Susan: A process called discovery occurs.  And basically what discovery is, it's where the attorneys will engage in various practices to determine the facts of the case that will be presented at trial.  The attorneys will exchange written questions; those are called Interrogatories.  And the client will have to answer some written questions under oath.  There is also something called a Request to Produce, where you will send a request to a hospital for documents, for records, for films.  You may request policies and procedures from the hospital.  You may request a credential file on the doctor.  So documents will be exchanged back and forth between the parties.  And then the majority of the discovery process involves taking depositions.   Depositions are simply asking questions, and the plaintiff or the doctor answers them under oath and then this can be used at trial as a way of pinning down testimony.  Normally in a medical malpractice case, the plaintiff will give a deposition and then the defendant doctor will give a deposition.  Then other fact witnesses will give depositions, perhaps nurses or respiratory therapists.  After those depositions are done, the defense or even the plaintiff may want to take the depositions of those treating physicians, physicians who have treated after the malpractice has occurred.  The last type of deposition that is taken involves the experts.  The plaintiff's experts will give depositions.   The plaintiff's attorney will take the depositions of the defense experts.  And it's not unusual in a medical malpractice case for there to be dozens of depositions that are taken. I mean, I have had cases where we have had close to 100 depositions taken in a medical malpractice case.  It takes time and a lot of depositions are part of a medical malpractice case. Question: Are medical malpractice claims routinely settled before filing a lawsuit? Susan: The short answer is no.  That's definitely the exception rather than the rule.  I think I can count on one had the number of times that has happened in the 20 years that I have been practicing.  Medical malpractice cases are usually filed.  They are aggressively defended and they are litigated for many years. Question: How long does it take for a medical malpractice claim to be resolved? Susan: That's variable.  Some of it depends on where you file the case. Some court jurisdictions are more crowded than others.  I remember many years ago filing a case downstate in a county and it was the fourth lawsuit filed in that county that year and we filed it in October.  Now, if you were to file a medical malpractice case in Cook County in October, there could have been thousands of medical malpractice cases filed before October.  So, it depends on where you file the case and a lot of it also depends on the complexity of the case.  Some cases truly will involve one plaintiff, one doctor and maybe very little subsequent treatment.  Other cases are very complex and there may be a number of defendant doctors that caused or contributed to the injury.  And the injury may be very severe and a lot of discovery will need to surround the severity, nature and extent of the plaintiff's injury.  In general, I would say a good rule of thumb is two to five years.  Some take longer than that.  But two to five years I think is a reasonable estimate. Question: Do medical malpractice lawsuits commonly go to trial, and if so, how long usually is the trial itself? Susan: Whether a case goes to trial or not is variable.  My experience has been that most of these cases ultimately do settle because we do a good review before we file them and hopefully they are meritorious when we file them or we wouldn't be filing them.  However, if they do settle, they usually do not settle early.  They oftentimes settle right as you are walking in the courtroom door for trial.  Every case has to be prepared as if it is going to trial.  You can never assume that a case will settle. One of the reasons that cases don't settle in medical malpractice, it's a little bit different than in other areas of the law.  In a lot of medical malpractice cases, the doctor has the right to consent to settle the case or not.  Now that's different than in an auto case. Now if you have an auto accident, your insurance company can settle the case without your knowledge or consent.  Doctors usually have the right to consent and some doctors feel very strongly that they did nothing wrong. Insurance companies also get involved.  So an insurance company may decide to defend a case even if the doctor wants the case to be settled.  Oftentimes, these cases are complex with multiple defendants and there may be fighting as to who is responsible and who is going to pay what.  And that will drive a case to trial. The length of a trial is also variable.  It depends of the complexity of the case and the number of witnesses.  Cases can go from one week to many months.  Most cases in my experience are two to four weeks just for a general medical malpractice case. Question: Are patients successful with medical malpractice cases at trial? Susan: The majority of cases in Cook County that actually go to trial are won by doctors and hospitals.  I think the statistic is 70 percent to 80 percent that are won at trial by healthcare providers.  And you may ask why has that happened?  I think people want to trust their doctors and they have respect for doctors and hospitals.  So it's very hard sometimes for a jury to find a healthcare provider responsible for malpractice.  Some of these cases are so complex that it may be difficult for a jury to understand the medicine and the issues.  They say, how can I criticize a doctor if I don't understand it and a good defense attorney is going to make it seem very, very, very difficult, and it's our job as the plaintiff's attorney to make the case and medicine as simple as possible.  And I think there is also an undercurrent.  You have probably heard about Tort Reform.  There is some feeling out there among people that perhaps there are too many frivolous lawsuits.  That we are driving doctors out of the practice of medicine and that medical malpractice suits raise the cost of everyone's healthcare.  Now, if we have time, I could tell you that none of those things are true in my opinion.  But there are those beliefs out there that are held by some people. Susan Capra, a partner at Clifford Law Offices in Chicago, is here to discuss medical malpractice.  Susan is also a registered nurse and has combined her medical knowledge with her legal education to help those who have been injured by healthcare professionals.  She understands all that it takes to put together a successful medical malpractice case because these matters are highly complex.

Talking with Robert Walsh

Robert Walsh speaks about how the old phrase, "never cry over spilled milk," has an interesting take when looking at personal injury law.  He also talks about those who have had the greatest impact on his life -- listen to what he has to say.

Part IV - Frequently Asked Questions About Medical Malpractice Lawsuits with Susan Capra, Partner at Clifford Law Offices, and Nurse - The First Steps in Determining If You Have a Case

Question: How do I choose an attorney to investigation a potential malpractice claim? Susan: That's a good question.  Medical malpractice is a very distinct and specialized type of law.  You want to choose an experienced medical malpractice attorney -- an attorney who deals with these types of cases and who has handled these cases in the past.  Most law firms now have websites and you can go to the website of the law firm and see a record of the types of cases they have handled.  I think you also want an attorney who has trial experience, an attorney who has taken many malpractice cases to trial.  If your case goes to trial, you want the best shot of winning and your best shot is with an experienced trial attorney.  You also want to choose a law firm that has the manpower and financial resources to prosecute your case.  You want more than one attorney working on the case so if a deposition is scheduled on Monday and if the partner on the case can't do it, there can be another partner and associate who can step right in to do that deposition to keep the case moving. We have not talked about it in great detail, but these cases can be extremely expensive to prosecute.  The cost of litigation in a medical malpractice can be in the tens of thousands of dollars.  You want a firm that is going to be able to advance those costs so they can hire the very best expert for your case.  So they can afford the demonstrative exhibits at trial that will teach and educate the jury about your case.  I think most importantly you want an attorney who cares.  An attorney who cares not just about your case, but about you as a person.  When you meet that attorney, are they responsive to you?  Are they listening to you?  Are they putting you at ease?  Do you feel comfortable?  So the bottom line is you want a competent, hard-working, caring attorney to handle your case. Question:  How does an attorney investigate a medical malpractice claim? Susan: Very carefully, and in a very detailed and organized manner.  Usually, a client will call and there will be some initial questions asked over the phone.  What happened?  When did it happen?   Most clients then will be instructed to get a copy of their medical records and they send the records to us for review.  We will review the medical records.  We may do some medical research, some literature searches to research the particular topic and then a meeting is set up with the client and at that meeting we want to go into detail about what happened.  We might want to talk to the client about their health history to see if they've had any similar problems.  We might get some authorizations signed to get other related medical records.  We might ask them to write a written summary about what happened with their case.  The medical records sometimes only tell half the story.  There is a lot that may be missing so sometimes we ask the client, "give us your side in writing."  It's a time for the client to ask questions.  After the client meeting, we will obtain additional records.  We may obtain films, pathology slides.  We will then do a review in-house of all of this relevant information and if you are with an attorney who does a lot of this, they will have a pretty good idea if there is something here that merits going forward with the case. The next step, which is unique to medical malpractice cases, is sending the case out to an expert for review to find out if it has merit.  And oftentimes in the cases, it may be multiple experts that will need to review the records.  Going back to our example of a breast cancer case.  You may need to send the records to an internist who initially examined the lump for review.  If a mammogram was done, you may have to send those records and films to a radiologist to see if the film was interpreted correctly.  You may need to send those records to an oncologist who is going to determine what difference that delay in diagnosis made.  So, there may be multiple expert reviews that are needed before a case can be filed.  That's why it's important to consult a medical malpractice attorney as soon as possible after you suspect malpractice because an investigation may take several months. Question: That's a really good point that you brought up.  You need to file as soon as possible and that raises next question.  What is the statute of limitations for a medical malpractice claim? Susan: You have a limited period of time to file a medical malpractice suit.  This time limit is called the statute of limitations.  And this will vary by state and it will also vary based on the specific facts of the case.  There are some facts that can extend the statute of limitations.  In general, in Illinois, a medical malpractice action must be filed within two years of the negligent act.  There are exceptions to that.  Some suits may need to be filed sooner and some later.  In Illinois, the statute of limitations may be extended beyond two years by something called the Discovery Rule.  In other words, you have two years to file a lawsuit from the time you knew or should have known that you had an injury and that it was negligently caused.  But even with that discovery rule, you cannot file a lawsuit more than four years from the negligent act.  This is called the Statute of Repose.  Now there may be exceptions to that, too.  Going back to the example of a baby.  If a baby is injured in birth, in Illinois, the parents would have eight years to file a lawsuit from the date of birth generally.  If a person is disabled because of the negligence, the statute may be tolled, so it can be filed basically at any time while the disability continues.  As you can see, determining when the statute of limitation runs can be very complex as a legal question and a very fact specific question.  And the only way to truly know is to consult an attorney who concentrates their practice in this area. Question: Where is a medical malpractice lawsuit filed? Susan: In Illinois, it's filed in the county of resident of any defendant or in the county where the malpractice or some part of it occurred.  So let me give you an example.  If malpractice occurs at a hospital in Kane County and the physician who committed the malpractice lives in Cook County and you sue both that hospital and that physician, you can file the case in either county then and you would be proper in either place.  But the hospital may come in then and argue that Kane County is a more convenient forum and they would file a motion under a doctrine of law called Forum Non-Conveniens.  And what that means is that the hospital is acknowledging that Cook County is a proper venue if you filed your case in Cook County, but Kane County would be more convenient.  And then a court would balance various public and private interest factors to decide where the case would go.  But as a general rule of thumb, it's usually in the place where the malpractice occurred. Question: What is mainly required before a medical malpractice lawsuit can be filed? Susan: A thorough investigation and a positive review from a good expert.  You need to know if you are the attorney filing this suit that you have all of the pertinent records.  You need to make sure you are filing it in the right place and time.  You have to make sure that you are naming all the necessary parties and their corporations.  In that example with the breast cancer, if you were to file the case against the internist and not have had that mammogram reviewed, and the radiologist misread the mammogram, and you didn't sue the radiologist, that could be a big problem because the internist could point to that empty chair and say, "but for that radiologist reviewing the film wrong, you know, I wouldn't be here.  It's actually the radiologists problem."  So you want to make sure you have all of the proper parties in the case.  You want to make sure you can prove all of those elements, the duty, the breach, the proximate cause and the damages.  You want to have your experts lined up to testify.  In Illinois, there is a special requirement that's a statute.  In the Illinois Court of Civil Procedure, Section 2-622, that requires you to actually have a physician's report.  And in this physician's report, your reviewing consultant has to say that there is a reasonable and meritorious reason for filing the case, that he has reviewed the medical records and this is how the defendant doctor deviated from the standard of care and caused an injury.  And that physician's report actually has to be attached to the complaint that you file with the court.  And an attorney also has to file an affidavit saying that they consulted with a qualified expert.  So it's an additional step that is required in a medical malpractice case to have this report, that would not be required in an automobile accident case. So that is basically the process of what you do to file a lawsuit. Susan Capra, a partner at Clifford Law Offices in Chicago, is here to discuss medical malpractice.  Susan is also a registered nurse and has combined her medical knowledge with her legal education to help those who have been injured by healthcare professionals.  She understands all that it takes to put together a successful medical malpractice case because these matters are highly complex.

Talking with Kristofer Riddle

Kris Riddle is one of Clifford Law Offices' youngest lawyers, but he speaks with great experience in life.  Hear his reflections on being a lawyer -- continuing his family's tradition of public service -- and who has had a great impact on his professional life.

Frequently Asked Questions About Medical Malpractice, Part III, with Susan Capra, Partner at Clifford Law Offices and Nurse - Medical Records in Medical Malpractice Cases

Question: If I think I have been a victim of medical malpractice, what should I do? Susan: I think it's a good idea to begin documenting.  Document what happened.  Document everything that happens after the malpractice.  Dates of surgery, lab results, if you have a CT scan, the results of the CT scan.  Document the names of the doctors, nurses, and other healthcare providers involved. Question: Times, places of conversations? Susan: Absolutely.  And you may ask, why do you want to document?   I think it helps you remember things if a lawsuit is filed in the future.  You have the facts down.  It will also help you explain your case when you do consult with an attorney and it also can help you explain your condition and case to a doctor that may treat you as a result of the malpractice.  So documentation is very important. The second thing that I would recommend is that you ask questions.  Don't be afraid to ask questions and don't be intimidated.  So many of our clients come to us because they want answers and they haven't been given answers.  You don't have to be hostile but be direct.  Just ask why did this happen?  How is this going to be fixed?  What's the treatment plan from here on out?  I also recommend if you are having those types of conversations, and you suspect malpractice, to maybe have a family member or friend in on those conversations.  Sometimes it helps to have an objective person in on the situation to listen.  They might think of questions that you are not thinking of to ask.  Over the years, I have had clients come into the office and I will ask them what were you told about why your loved one died.  And they will tell me, I was told he had a cardio-pulmonary arrest or he died of a cardiac arrhythmia.  In reality, everybody is gonna die of a cardiac arrhythmia or a cardio-pulmonary arrest.  When I ask them what did they say caused that, they didn't ask that question.  If you have an objective third party, you know, two heads are better than one.  Perhaps more questions will be asked that will shed some light on the situation. Another very important thing to do is to request a copy of your medical records.  You want to get a copy of those records before there is any editing or alterations that might happen.  Unfortunately, alteration of medical records does occur when there has been a bad result.  Sometimes lab results are lost, the chart can be lost, entries are altered, additions are made.  It would be much easier for your attorney to detect these alterations if you get a copy of the records close to the time the malpractice occurred. I worked on a case in the office a number of years ago where a lady was having some problems after surgery and she became friends with the receptionist in the doctor's office.  She said, can I get a copy of my medical records, I'd like to get a second opinion and the receptionist said sure and copied the three little pages of her medical records.  She then did consult with an attorney who requested the records from the doctor and the attorney received a set a medical records that were quite larger and had many additions.  This attorney did not do a lot of malpractice and referred the case to our office.  I ordered another set of medical records from the doctor by an authorization and got more alternations and additions.  Once the case was filed, I asked the defense attorney, can you please give me a copy of your client's records.  And the records got even better.  A large volume of records, derogatory comments were added about my client, so, you know, that doesn't happen very often, but that's an extreme example of alterations in medical records. Question: Is it a good idea to know if you have seen the doctor within that year to get your medical records and have it on hand? Susan: I think it's a very good idea because even if you have to go to the hospital unexpectedly, you will have some records.  With my own family members, I keep a little file and every time we go to the hospital, I take that file with me.  A list of medications, list of visits, almost like a chronology.  It's very helpful. If you suspect you have been a victim of medical malpractice, you might want to seek a second opinion or transfer your care to a different healthcare provider.  That new doctor might not so focused on the malpractice.  I would hope they would be more concerned about treating the problem.  And a subsequent treating physician may actually tell you about the problem with your prior medical care. I think the most important thing to do if you think you've been a victim of medical malpractice is to contact a professional - a medical malpractice attorney who does this so we can get the records and get them to an expert for review. Question: Am I entitled to file a medical malpractice lawsuit if I have signed a consent form for treatment? Susan: Most definitely you are.  There is actually a separate theory in addition to negligence that you can sue for.  Lack of informed consent.  Consent of a patient is necessary before a procedure is performed by a physician.  A physician can be liable for a medical battery if they do not have informed consent before giving treatment.  With informed consent, a physician has a duty to inform the patient about all foreseeable risks, results and possible alternatives to treatment.  You need to know what your alternatives and options are.  To prove a case of lack of informed consent, the plaintiff must again have an expert who will testify to what a reasonable physician would have told the patient about the risks and the expert must say why the disclosure by the defendant physician was not reasonable under the circumstances.  Having said all of that, the fact that a consent form is signed before a procedure is not conclusive.  A good plaintiff's medical malpractice lawyer can challenge the consent form; they can challenge the time it was signed.  Have you already been given that shot that kind of makes you groggy before you go into surgery?  They can challenge the circumstances under which it was signed.  Did the doctor talk to you or were you just handed a consent form by a nurse and told sign here on the line?  Was there a proper interpretation of that form?  Was it explained to the patient?  The most important thing to remember is just because a consent form mentions a particular risk, and the patient was informed of that risk, the patient does not consent to malpractice.  A physician has to take measures to prevent that risk or harm. So, for example, in a surgery case, if a surgeon injures a nerve or a blood vessel and that injury had been mentioned on the consent form, your attorney can still introduce evidence that that injury occurred only because of the negligent way the doctor performed the procedure.  Consent only applies to appropriate care.  It doesn't apply to negligent care. Susan Capra, a partner at Clifford Law Offices in Chicago, is here to discuss medical malpractice.  Susan is also a registered nurse and has combined her medical knowledge with her legal education to help those who have been injured by healthcare professionals.  She understands all that it takes to put together a successful medical malpractice case because these matters are highly complex.

Talking with Craig J. Squillace

Craig Squillace enjoys "putting the puzzle together" as he works on his cases.  As a political science major, becoming a lawyer "was a natural fit."  Hear more from Craig as he reflects on the profession of being a lawyer.

Talking with Colin H. Dunn

Although none of Colin Dunn's family members are lawyers, he knew he wanted to be a lawyer since he was in grammar school.  Colin talks about why he decided to become a lawyer and how he enjoys his work helping people.  Listen in on his comments on how he puts clients first.

Texas Fertilizer Plant Explosion: Are these Events Common?

When the Texas fertilizer plant explosion occurred on April 17, 2013, it signaled a need to understand how often these types of events occur. The answers - spanning nearly the course of a century - may be an indicator of where we could be headed. History Repeats Itself   Since 1921, there have been at least 17 unintended explosions of ammonium nitrate worldwide, according to the Guardian. Six of these happened in the U.S., and all led to casualties. However, with the rate at which ammonium nitrate production is growing in this country, these types of events could become more common.

Civics is Still Important

The premier of Constitution USA, the new PBS mini-series about our nation’s founding document, will air on WTTW starting this Tuesday (May 7, 2013) at 8 p.m.NPR’s Peter Sagal takes a cross-country motorcycle ride to tell the story of modern Constitutional controversies.  He tries to make civics engaging and relevant.  The American Bar Association and its iCivics program has partnered with PBS to produce this series that will explain issues such as federal v. state’s rights, and other issues such as gun control, medical marijuana use and Obama healthcare. Click here to learn more.Be sure to tune into Channel 11, WTTW, to watch this special one-hour Tuesday.

FAQ's - Medical Malpractice Questions Part II with Susan Capra

Question: Should I consider a medical malpractice lawsuit if I have had a bad result? Susan:  It depends; a bad result may or may not indicate medical malpractice.  Simply because a patient experiences a complication, that does not necessarily mean that there has been malpractice.  A bad outcome may be what prompts the client to contact an attorney, but further investigation needs to be done to determine if in fact there was malpractice.  The only way to truly know if a bad result or a complication is due to medical malpractice is to consult an attorney with experience in this area.  The attorney will then do an investigation and have the matter reviewed by a competent expert.  And that truly is the only way to know if you have a medical malpractice action. Another point that I would like to make is there has to be some level of serious of permanent injury in these cases because these cases are very hard to prosecute and very expensive to prosecute.  So the injury must merit going forward with the suit.  For example, a doctor can prescribe a wrong medication and you can take that medication and maybe feel dizzy for a couple days, but there is no serious permanent injury. In that case, we would advise against filing that suit.  While the doctor may have not complied with the standard of care, there is not a damage of a sufficient quantity there to merit a lawsuit. Question: How do I know if I have been the victim of a medical malpractice and to proceed in contacting an attorney? Susan:  You may not know.  It's very, very rare for a doctor or a healthcare provider in a hospital to come forward and admit an error.  That has not happened often in my experience.  I know that there is a movement now among some healthcare institutions where they are encouraging doctors to admit errors and to actually say I'm sorry to the patient.  And I think that's a good thing.  While saying I'm sorry and acknowledging an error may not prevent a lawsuit, I think it takes some of the emotion and anger out of the situation.  But very rarely will the patient be told that malpractice has been committed.  Sometimes a nurse or therapist will make a comment to a patient.  We've had clients at Clifford Law Offices who have actually gotten an anonymous phone call from nurses at the hospital where they have been told to consult an attorney, something happened.  Sometimes a treating physician you will see after the malpractice, a new doctor will make a comment.  We have had situations where subsequent treating physicians have told our clients, you should consult a lawyer.  Sometimes it just doesn't feel right and needs to be investigated.  But again, the only way to really know if you have an action for medical malpractice is to talk to an experienced medical malpractice attorney and have the case evaluated.  The way it would be evaluated is through an expert who will decide if the case is meritorious. Question: What are some examples of medical malpractice? Susan:  There are many examples.  Certainly more than we can talk about here, but a real common type of malpractice case is a failure to diagnose.  Think of a cancer case.  A woman will go to a doctor with a breast lump and the doctor will diagnose a cyst and it turns out in retrospect that that truly was a breast cancer.  And the delay in diagnosing the breast cancer has a negative impact on the patient's prognosis.  Now, sometimes a misdiagnosis can result in a medical malpractice lawsuit.  Think of the example of a patient who goes to a doctor with cold symptoms.  The doctor may think well, this is bronchitis and it turns out that it was truly pneumonia and a chest x-ray was not done and the patient subsequently dies.  Another type of malpractice is a surgical error.  We have had cases where the wrong side of the patient's body was operated on or a blood vessel is injured during surgery or a nerve is injured during surgery.  Getting an infection in the hospital can be malpractice if proper sterile techniques were not followed in the hospital.  In an infection case, often times infections are not promptly diagnosed and treated.  Another common type of medical malpractice case deals with medication errors.  Sometimes you will get the wrong medication or the wrong dose.  Those are the big areas of medical malpractice. Susan Capra, a partner at Clifford Law Offices in Chicago; is here to discuss medical malpractice.  Susan is also a registered nurse and has combined her medical knowledge with her legal education to help those who have been injured by healthcare professionals.  She understands all that it takes to put together a successful medical malpractice case because these matters are highly complex.

Talking with Kevin P. Durkin

Kevin P. Durkin, partner at Clifford Law Offices, reflects on why he wanted to be a lawyer and the person who has had the most influence on his professional life.

Frequently Asked Questions with Susan Capra, Partner at Clifford Law Offices: What is medical malpractice?

Susan Capra, a partner at Clifford Law Offices in Chicago, is here to discuss medical malpractice.  Susan is also a registered nurse and has combined her medical knowledge with her legal education to help those who have been injured by healthcare professionals.  She understands all that it takes to put together a successful medical malpractice case because these matters are highly complex. Question: What is medical malpractice? Susan: Medical malpractice is a cause of action for damages against a health professional or a hospital, and the vast majority of medical malpractice litigation is grounded in negligence.  The elements of a negligence case for medical malpractice are the same as the elements for any other type of negligence action.  In medical malpractice, the plaintiff or the patient must prove that the doctor owed him a duty and that the doctor failed to exercise the skill or care of a reasonable doctor or breached the duty and that damages were proximately caused by the breach of that reasonable standard.  The primary difference between a medical malpractice action and another negligence action is that an expert usually must testify to establish liability and proximate cause in the medical malpractice context.  So in a medical malpractice case, the plaintiff's attorney will need to hire an expert who is a physician like the defendant doctor to review records and to determine if malpractice has occurred.  If malpractice is found, that expert physician must testify that the defendant doctor committed malpractice and that the malpractice caused the plaintiff's injury. Question: What do I need to prove to be successful in a medical malpractice case? Susan: To prevail in a medical malpractice case against a physician, the plaintiff or patient must prove four distinct elements: Duty, a breach of a duty, proximate cause and damages.  And if any of those essential elements is missing, the plaintiff will not prevail.  It's the plaintiff who has the burden of proof in these cases.  I can address each one of the elements separately. Duty actually refers to the legal relationship between the plaintiff and defendant.  In a medical malpractice case, the duty requires that the healthcare provider delivers healthcare in accordance with the standard of care.  So a relationship must exist before the duty arises.  Thus, in a medical negligence situation, a doctor/patient relationship must be established before this duty arises.  Once there is that physician/patient relationship, the defendant doctor becomes legally accountable for his or her actions.  Now, you may ask what is the level of conduct to which a healthcare provider is held or what is the standard of care?  A doctor is required to possess and apply the knowledge and use the skill and care ordinarily used by a reasonably well-qualified physician in the same or similar circumstances.  It's a standard of reasonableness.  And a plaintiff or patient must introduce evidence at trial to demonstrate the standard of care.  And how do you introduce this evidence?  This is where that expert witness comes in.  You need to hire an expert witness to review the case and then that witness must come in at trial and testify as to the standard of care and that it has been breached.  The expert must have qualifications and expertise very similar to that defendant doctor.  The expert testifies about the standard of care at trial and the expert also testifies that the defendant's conduct fell below that standard of care.  Now, you can establish standard of care not only with an expert witness but you can look to other sources as to what is reasonable conduct by a physician.  Sometimes documents are used to help define the standard of care.  For example there might be practice bulletins or guidelines that are published by professional medical organizations that may help define the standard of care.  In a case against a hospital, you can look the hospital's policies and procedures.  Obviously, they should reflect the standard of care.  You can look to medical text books or articles as to what is reasonable conduct for a doctor in a given situation.  And sometimes, there are statutes that actually define the standard of care.  For example in Illinois, there is a duty after a baby is born to instill eye drops in the eye to prevent a certain eye disease.  So that is a practice or standard that is dictated by law.  So you can try and define standard of care in all of these different ways but the most common way is with an expert witness. The second element is breach of duty.  Once the expert establishes the standard of care, the plaintiff must also show that there has been a breach in that duty.   And a breach of that duty can either be an act or an omission.  And it must be a foreseeable breach.  Expert testimony, policies and procedures and all of the other things that we discussed can show a breach in the standard of care. Another important element is proximate cause or causation.  There must be a direct relationship between an alleged negligence and the plaintiff's injuries.  As a direct and proximate result of the acts or omissions of the defendant, the plaintiff must have sustained an injury.  The defendant will be found liable for injuries to the plaintiff because the defendant performed negligently, and there has to be that causal connection. Causation is also proved by expert testimony and this may be a difficult element for a plaintiff to prove in a medical negligence case because there may be other explanations for the patient's injury.  Many times in these cases, proximate cause is the big defense.  A defense attorney will argue that nothing the doctor did or did not do caused the patient's injury --  it just happened, it would have happened anyway.  So proximate cause is a big defense. At Clifford Law Offices, I work on a number of cases that involve babies.  Cases where babies have been injured as a result in the delay of performing a C-Sections or an improper delivery.  And in these cases, proximate cause is always the big defense.  For example, the defense attorney will say that the brain damage may be due to a problem with the placenta or the brain damage in the baby may be do to some genetic problem or an infection during the pregnancy with the mom or the baby in utero.  So proximate cause is a very important element and it is a way that a medical malpractice case is defended. And the final element is damages.  The plaintiff must prove that they have sustained an injury or damage.  And in Illinois damages fall into to basic categories.  The first category is economic damage and the second is non-economic damage.  Some of the elements that a plaintiff may be compensated for include past and future medical care costs, lost earnings, past and future pain and suffering, past and future disability, disfigurement.  So an example of an economic damage would be lost wages or past medical bills.  And example of a non-economic damage would be pain and suffering.  One distinction in Illinois that is kind of unique to medical malpractice cases is that you cannot sue for punitive damages.   Often you hear in product liability cases where a manufacturer or company can be sued for punitive damages.  That is not an element that is recoverable in Illinois in medical malpractice cases.

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