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The Basics: An Illinois Medical Malpractice Primer

2016 April 1
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by Ryan Bradley

Koester & Bradley Medical Malpractice LawyersIn 2010, the Illinois Supreme Court struck down the state’s statutory limits on certain types of damages that could be awarded in a medical malpractice lawsuits. As a result, you might think that the state’s laws will favor individuals who are injured as a result of a doctor’s or hospital’s negligence. Those laws do currently favor injured parties, but they still impose certain rules and guidelines that can reduce a monetary award if the lawsuit is not administered and prosecuted properly.  Additionally, due to heavy lobbying from insurance companies and misconceptions, medical malpractice cases are even harder to prosecute in Central Illinois.  Very few attorneys are willing and qualified to take these cases.

Initially, the state’s statute of limitations requires an injured party to file his lawsuit no later than two years from the date of his injury or two years from the date on which he reasonably could have discovered the injury. In any case, however, a malpractice lawsuit in Illinois will be dismissed if it is filed more than four years after the initial injury. Minor children who suffer malpractice injuries are given more time to file a lawsuit.  The Statute of limitations is not a matter which should be taken lightly as a meritorious claim can be extinguished on this basis alone.

Illinois no longer has upper limits on the amount of non-economic damages (i.e. damages for pain and suffering) that an injured party can recover, but other factors can combine to limit and reduce a monetary award for medical malpractice. First, Illinois imposes a modified comparative negligence standard. If an injured party bears more than 50% of the blame for his injuries, which can happen, for example, if he fails to get recommended follow-up care or neglects to take prescribed medications, he will not be entitled to receive any monetary award for his injuries. If he is less than 50% to blame but still bears some responsibility for his injuries, his monetary award will be reduced in proportion to his share of the blame.

Illinois also follows a collateral source rule when an insurance company or hospital are included in a medical malpractice lawsuit. In these cases, the negligent physician or medical care provider can apply for a reduction in the damages award within thirty days of the date of the award. If the application is accepted, the injured party’s award will be reduced by 50% of any lost wages or disability income that was paid to him by another “collateral” source. In no event with any judgments be reduced by more than 50%.

Expert witness testimony is another important consideration in Illinois medical malpractice law. Specifically, an injured party must file a “certificate of merit” that has been prepared by an expert within ninety days of the malpractice lawsuit’s filing date to verify the validity of the claims. Illinois has strict standards regarding who qualified as an expert for purposes of this certificate.  A medical malpractice attorney in Illinois therefore is measured by the strength of their experts.

Many individuals who are injured by medical malpractice lose their opportunities to recover damages to compensate for their injuries due to their delays in filing their lawsuits or for other similar reasons. Please contact us soon after you have suffered a malpractice injury in order to protect your rights and to maximize your opportunity to receive the largest possible compensatory award.

Stopping Nursing Home Neglect, Take Action

2016 March 18
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by Ryan Bradley

After reading about so many different nursing home neglect cases in the news, you might begin to believe that neglect is commonplace. While it can (and often does) happen, nursing home neglect is not something you have to accept. Whether you are a loved one of an individual in a nursing home or you work in one, there are a few things you can do.

1. Accurately Identify Patient Needs

One of the biggest reasons incidents like falls and suffocation occur is because the needs of the patient were not accurately assessed and tended to. Prevention starts with understanding a patient’s mobility issues and knowing how often he or she needs to be checked on.

2. Pay Attention to Cleanliness

Infection is common among nursing home patients, and this is often a result of poor sanitary conditions. Ensure that each room is thoroughly cleaned. Additionally, patients need to bathed often.

3. Look for Changes in Development

Medical development changes all the time, as do mobility, emotions, and mental health. Is your loved one or patient drastically changing? Talk to a medical professional about the milestones the patient needs to be meeting. When things change, it is time to address development.

4. Visit Often

Research suggests that patients in nursing homes who are visited more often tend to experience far fewer cases of neglect and abuse. When you visit, you can look for signs that indicate something is wrong.

5. Increase Staffing

One of the biggest causes of neglect is an understaffed facility. It may be time to increase the number of staff members caring for your patients to ensure that significant details do not go unnoticed.

Are you looking for answers about your nursing home neglect? Remember to contact us if you have questions about neglect or abuse of a loved one.

Facts on Vaginal Mesh for Illinois Victims

2016 February 19
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by Ryan Bradley

Koester & Bradley Champaign Urbana Mesh AttorneysPelvic organ prolapse (POP) occurs when the muscles and tissue of the pelvic floor become stretched, torn or weakened and can no longer support pelvic organs such as the bladder, bowel or uterus.  As a result of this instability, a patient’s organs will drop from their normal position and prolapse into the vagina.  POP can result after childbirth, during menopause or after a hysterectomy.  Patients suffering from POP have reported pelvic pressure, painful intercourse, low back pain, constipation, and urinary problems such as chronic urge to urinate or leakage.

Gynecologists have been implanting surgical mesh for abdominal repair of pelvic organ prolapse (POP) since the 1970s and for transvaginal repair of POP since the 1990s.  The FDA classified surgical mesh for transvaginal repair of POP as a moderate-risk device (class II) in 2002.  Patients suffering from POP undergo a minimally invasive surgery where surgical mesh is implanted to repair POP and to reinforce the weakened pelvic floor muscles.  Patients who have undergone these transvaginal surgeries have reported erosion, and possible exposure or extrusion, of mesh through vaginal tissue, perforation of pelvic organs, bowels and blood vessels, pelvic pain and difficulty moving, abdominal pressure, recurrence of POP, vaginal discharge and infections, vaginal bleeding, vagina scarring or shortening, pain during intercourse and urinary incontinence.

The FDA has been warning patients and doctors about the use of surgical mesh for transvaginal POP repair since 2008 when it first began issuing safety communications.  Doctors and consumers were warned in 2011 about an increase in adverse event reports related to the use of mesh in urogynecological procedures and in September 2011, an advisory panel convened to discuss what actions to take regarding the use of the surgical mesh in transvaginal POP repairs.  In January 2012, the FDA ordered manufacturers to conduct postmarket surveillance studies to address the safety and effectiveness of transvaginal mesh.  The FDA issued two proposed orders in May 2014: (1) request for the reclassification of transvaginal mesh from class II to class III and (2) request that manufacturers be required to submit a premarket approval (PMA) application.  On January 4, 2016, the FDA reclassified transvaginal mesh from a moderate-risk device (class II) to a high-risk device (class III).  Manufacturers are now required to submit a PMA application to support the safety and effectiveness of the surgical mesh for the transvaginal repair of POP.  This order will only apply to surgical mesh devices marketed for transvaginal repair of POP such J&J GyneCare transvaginal mesh, AMS transvaginal mesh and Bard Avaulta transvaginal mesh.  Manufacturers of transvaginal mesh will have 30 months to submit a PMA for devices that are currently on the market.  A PMA will need to be submitted by manufacturers of new devices before those devices are approved for marketing.  The January 4, 2016 order does not apply to surgical mesh used for abdominal repair of POP or stress urinary incontinence.

With the FDA taking this stance it is important for those who have ANY type of vaginal mesh implanted immediately speak with a doctor, and, if there is a problem a local attorney that is skilled in medical devices cases.  Don’t just call a number on the television, meet with a real Koester & Bradley Champaign vaginal mesh attorney at home in Central Illinois.

 

 

Lighter Side of the Law: Monkeys Cannot Own Copyrights

2016 February 14
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by Ryan Bradley

The law is not always so serious.  Further, the law tends to track with the trends of the times.  To this end, selfies are not exempt from legal scrutiny.

A United States federal judge in California has taken the lead in the category of unusual general legal news of 2016 by ruling that a monkey cannot legally own a copyright in a photograph. People for the Ethical Treatment of Animals (“PETA”) filed the lawsuit on behalf of a macaque monkey named “Naruta”. The monkey had taken a selfie in 2011 after it grabbed a camera from a photographer, and that selfie went viral on the internet. PETA claimed that the photographer and other people were attempting to exploit the animal. In an opinion notably marked by restraint, the judge stated that the issue of whether an animal could ever own a copyright was more properly a matter for Congress, and not for the courts.

The fact that a federal judge would devRyan Bradley Injury lawyerote any time to this issue might strike some people as a waste of judicial resources. The case and the judge’s ruling do reflect greater questions over the limits of a court’s power and which branch of the government is appropriate for settling certain types of matters. A form of this debate is ongoing, for example, with respect to the ability of the federal executive branch to take action on gun control where the legislative branch has failed to do so. Lawsuits involving monkeys and copyrights seem absurd on their face, but the issues that this and other lawsuits address are a dynamic element of our three-part system of government.

If you believe that your rights or the rights of someone you represent are being infringed by unfair laws or unjust application of those laws, you can either file a lawsuit to seek redress for that infringement or you can petition your legislature to repeal or amend the law to make its application more fair. The inclination to sue someone can be a knee-jerk response when your rights are infringed, but limitations on the type of claims that can be filed and pursued in federal or state courts can render your lawsuit frivolous or worthless.

Please contact us if you feel that your legal rights have been disregarded. We will give you a fair hearing and assess the quality and merits of the claim that you believe you have. Given that a court was willing to take a case involving a monkey and a copyright, there may be a court or some other venue that is appropriate for your complaint as well.  At the very least, we can take a selfie.

Quick Tip of the Day: What to Do After a Slip and Fall Accident

2016 February 7
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by Ryan Bradley

Koester & Bradley Champaign County Injury LawyersIf you leave your home, even rarely, chances are that you will experience a slip and fall accident.  Not all slip and fall events are due to the negligence of others.  Most times when a fall occurs, nobody is at fault.  Still, there are times when a business or a municipality or city deviates from its duty keep walkways and isles clear and a fall occurs

Slip and fall accidents happen at the most unexpected times. It is important to know what actions to take following the accident. Certain elements can make a difference in preserving your rights to compensation after a fall:

·         Contact emergency personnel if necessary.  Your health is the most important factor to consider after a fall at a place of business or a public walkway.  If you are incapacitated, or believe that you may have broken a bone, do not hesitate to call a first responder.  In Champaign Urbana Arrow Ambulance and Pro Ambulance are the most common services that would be called.  Once emergency services are called, or you are at the medical care provider such as Carle Hospital or Christie Clinic, be totally honest with your doctor or nurse about the events.  Do not be embarrassed and make sure that your medical records include the reason for the fall.

·         Record the names, numbers, and addresses of all witnesses.  If you are able, ask for the contact information of the witnesses to the fall.  These individuals will be important in a lawsuit is pursued.  Do not be bashful about ensuring that the witnesses know what they saw and that you or an attorney may contact them.

·         Obtain the insurance information for all parties.  Often times in a retail setting, this may be difficult.  The on site staff may not know this information.  Be persistent and do not exit the store or venue without the information if an employee is available.

·         Photograph the scene of the accident.  This can happen right after the fall, or later.  It is best to take photographs as soon as possible.  You may be told that you cannot do so.  This is incorrect.  Do not be intimidated by a sales clerk.

·         Hold onto all important information and documents.  This includes all of the forms filled out by the store or venue in the form of an accident report. Insist that you get s copy of the report and ensure its accuracy.

·         Speak with an experienced attorney before talking with an insurance company.  Insurance companies will NEVER give you a fair settlement without an attorney.  The job of the insurance adjuster is to make sure you receive little to no money.  NEVER trust an insurance adjuster and talk to an attorney first.  Just ask yourself, “who pays their salary?” If it isn’t you, they do not have your best interest in mind.

Koester & Bradley, LLP has handled many slip and fall cases and focuses on helping residents of the Champaign-Urbana area and throughout Central Illinois.

The Syngenta Battle rages in Kansas City MDL

2016 January 31
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Illinois corn attorney Ryan Bradley

Cases filed in Williamson County Illinois can avoid the MDL

Since November of 2014, cases have been filed in Kansas City Federal Court in the Syngenta Multidistrict Litigation.  Recently, individual cases from individual farmers were filed as well.  With a multitude of cases on file not only in Kansas City, The plaintiff and Syngenta have selected individual lawsuits of 48 corn producers from eight states to be representative “bellwether” cases.  The theory behind these trials, the earliest of which will start in 2017, is to allow for a number of different fact scenarios to be decided by juries.  This process has in the past lead to a greater chance of settlements as both sides gain a better understanding of the strengths and weaknesses of their cases.  This is not proving to be a smooth process in Kansas City.

With billions of dollars on the line, plaintiff’s groups representing the interests of farmers, and Syngenta chose from thousands of cases on file, including a class action.  What makes this scenario interesting is that major agricultural heavy weights Cargill Inc. and Archer Daniels Midland Co. also claim that billions in profits were lost when China rejected all US corn shipments in 2013 since the MIR-162 Viptera trait had been marketed by Syngenta and Co-Mingled with compliant seed.

This fact is apparent in the message sent by the National Feed and Grain Association that despite the fact the US Food and Drug Administration approved Viptera for domestic consumption, it was common knowledge that China had not.  Plaintiff farmers have alleged that Chinese imports of U.S. corn had decreased by about 85 percent since November 2013.

Each side selected four states from which to draw the MDL’s bellwether cases, including Missouri, Nebraska, South Dakota, Arkansas, Iowa, Ohio, Illinois and Kansas. From this pool of cases 48 were selected.  But this was the easy part.

Syngenta claimed that its selections included farmers with differing corn acreage, different practices regarding the use, storage and sale of corn and those with different crop protection policies, and said its selection captured a diversity in harvest seasons and proximity to export channels.  Again, nothing uncommon with a defendant believing that it chose the best cross section of cases in a bellwether.  This is where the process stopped acting normally.

Syngenta took shots at the plaintiffs’ MDL leadership counsel, saying that 15 of its 24 bellwether selections weren’t even a part of the MDL yet or had just filed their individual suit within the past day.  This contention was ultimately without merit or consequence as the Court allowed the process to continue. While the Plaintiff’s attorneys were tactical, they did noting improper.

 

The bellwether selection came just a day after Syngenta filed a third-party suit against Cargill, Archer Daniels and other distributors it says are equally guilty for making no attempt to segregate.  This is viewed as a somewhat desperate attempt to spread the blame given the fact that Syngenta and Syngenta alone caused the Viptera corn to be released prematurely.  This being said, the role of Cargil and ADM is still a relevant matter for discussion and in fact ADM was included in the Illinois complaints filed in Williamson County.

Syngenta’s strategy appears to be to shift the burden of preventing co-mingling to produces and distributors rather than to take responsibility for the fact that it and it alone marketing the trait.  No matter what the arguments, however, the fact remains that if you grew corn in Illinois in the last few years, you have little to loose by filing an action in Williamson County with the Illinois consolidation.  As always feel free to contact us with any questions.

Does Mr. Smith have a Worker’s Compensation Claim?

2016 January 30
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Koester & Bradley Champaign Worker's Compensation Attorneys

Do You Have a Worker’s Comp Claim

Mr. Smith is lifting heavy boxes for his employer, Acme, when he trips on the stairs.  He lands at the bottom of the stairwell with his boxes atop the right side of his body.  Does Mr. Smith have a compensable workers’ compensation claim?  Who is going to pay for Mr. Smith’s medical care?  What steps should Mr. Smith take if he needs to report a workers’ compensation claim?

Does Mr. Smith have a compensable worker’s compensation claim?

Yes.  An injured employee is eligible to receive workers’ compensation benefits if his/her accident arose out of and in the course of your employment.  Mr. Smith injured himself while he was engaged in his job duties for Acme (i.e. lifting boxes) at Acme’s place of business.

Who is going to pay for Mr. Smith’s medical care?

Acme’s workers’ compensation insurance company.  By law, the employer is responsible for the cost of workers’ compensation benefits.  No part of the workers’ compensation insurance premium or benefit can be charged to the employee.

What steps should Mr. Smith take if he needs to report a workers’ compensation claim?

  1. Mr. Smith should notify Acme of his work injury and the date and place of the accident as soon as practicable. In Illinois, notice to an employer may be given orally or in writing.  However, Mr. Smith must notify Acme of his accident no later than 45 days after the accident.
  2. Depending on the severity of Mr. Smith’s injury, he should seek medical attention promptly.

Example 1: Mr. Smith proceeds to the ER and is diagnosed as having a sprained right knee and a bruised right wrist.  His injury will not require him to lose any work. Acme would not need to report this accident to the Illinois Workers’ Compensation Commission because Mr. Smith’s accident did not involve him missing more than 3 days of work.

Example 2: Mr. Smith proceeds to the ER where he is diagnosed with a torn right ACL which requires surgery.  It is determined that Mr. Smith will be off work for 2 weeks.  Because Mr. Smith will be off work for more than 3 working days, he should be entitled to Temporary Total Disability (TTD) benefits.  Acme must report to the Illinois Workers’ Compensation Commission Mr. Smith’s accident because it involves him missing more than 3 lost workdays.  Acme would need to electronically submit “Employer’s First Report of Injury” which is known as the Form 45.

Mr. Smith should hire an attorney.  An attorney will be able to provide many services to Mr. Smith such as (1) double-checking TTD and other calculations, (2) ensuring that Mr. Smith is receiving fair medical treatment, (3) acting as a liaison between Mr. Smith and Acme’s insurance carrier and (4) representing Mr. Smith at trial.

Please feel free to consult with us if you think you or a loved one has a Worker’s Compensation claim.

Suicide Risks with Generic Paxil in Illinois

2016 January 18
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by Ryan Bradley
Champaign Paxil Attorney Ryan Bradley

Adult Suicide allegations on trial in Illinois

A generic version of GlaxoSmithKline’s (GSK) antidepressant drug, Paxil, has failed to warn consumers of severe side effects most notably suicide. The makers of the drug claim that the Paxil Risks of Suicide, Attorney Ryan Bradley does not pertain to people over the age of twenty-four.  This contention is being tested in Illinois right now as recently a judge in the Chicago Federal court Paxil postponed ruling on summary judgment motions until after trial later this year. The case surrounds the suicide death of a 57 year old Chicago lawyer in 2010.  Users of generic Paxil over this age have found that this claim is false. Clinical trials show that Paxil increases the risk of suicidal thoughts by 700%, regardless of a consumer’s age.

Although GSK is not the manufacturer of this generic Paxil, the Northern District of Illinois, Eastern Division, has permitted a woman to take action against GSK for negligence, products liability and fraud.  In the lawsuit, the widow of the deceased claims that GSK was aware of the increased risk of suicidal behavior for over twenty years and that the risks apply to individuals over the age 24.

If you have had an experience with suicidal thoughts after taking Generic Paxil see your doctor immediately, and if a tragedy like the one in Chicago has occurred, seek out the advice of an experienced local attorney.  In Champaign County and Central Illinois call Ryan Bradley or Tom Koester at Koester & Bradley, LLP.

Automobile Accidents and Safety Tips for Winter Driving

2016 January 4
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by Ryan Bradley
Illinois Plaintiffs Lawyer Winter Driving

Winter Driving is Tough in Central Illinois. Don’t end up like this guy.

As winter weather approaches in Illinois, it is important to consider these conditions as you prepare to travel.  Despite the warm El Nino weather, conditions could still get difficult. Driving during these harsh conditions is hazardous and should be avoided if possible. If you have no other options than driving during a winter storm, here are some useful automobile accidents and safety tips:

  • Fill your gas tank up. A full tank helps minimize condensation and will be helpful in emergency situations.
  • Plan your route. Decide on a primary path and consider an alternate route.
  • Share your travel plans with someone. Should you not arrive when expected, officials will know where they can look for you.
  • Use your vehicle’s radio to keep up with the latest weather conditions.
  • Travel with one or two others in the same vehicle. Being along is not recommended.
  • Convoy with another vehicle if you can.
  • Keep your eyes out for patches of ice. The most common places you will find these patches is on overpasses and bridges.
  • Seek refuge if the storm conditions make you too uncomfortable.
  • Should your vehicle become immobilized, don’t leave it. Instead, keep your engine and heater running for short intervals. Also, slightly open your window carbon monoxide doesn’t get a chance to build up inside your car.

For more tips the good folks at AAA have an extensive library of information. Driving during winter storms can be harsh and scary. By preparing for your trip, protecting yourself, and preventing crashes, your travels will be safer. Should you require assistance due to your traveling this winter, don’t hesitate to contact us so we can help with your case.

Dangerous Drug Topamax Causes Injuries in Illinois

2015 December 30
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by Ryan Bradley

Koester & Bradley Topomax LawyersAcross Illinois, the seizure and migraine medication, Topamax, has bees shown to cause cleft lips and cleft palates in infants exposed to the drug during pregnancy. Research shows that this drug increases the chance of birth defects to 1.4 percent, which is three times higher than the rate of other seizure drugs.  While not a shocking high percentage at first glance, this is actually a significant risk. 

While Topomax is regularly prescribed to patients with bipolar disorder (also known as manic depression). It is approved for the treatment of seizures (epilepsy) in adults and children in combination with other anticonvulsants and for preventing migraine headaches in adults. See National Alliance on Mental Health.

The cleft palates and cleft lips that Topamax causes can create a number of complications for a child. The treatment can be very expensive. It may require surgery and/or assistance from other professionals. Additionally, the conditions are horrible and uncomfortable for the children afflicted with the condition.

Janssen Pharmaceuticals, a Johnson & Johnson subsidiary, manufactures the drug and has been in multiple lawsuits surrounding Topamax. There have been patients of this drug that claim Johnson & Johnson knew about Topamax’s risks and failed to warn the users of its dangers.

A Janssen Pharmaceuticals spokesperson is defending the company by stating, “Since Topamax was first introduced to the market in 1996, our company has appropriately informed healthcare providers of the potential side effects for women who use the medicine during pregnancy.”

The FDA announced on March 4th 2012 it was changing the classification of Topamax (topiramate), an anti-convulsant medication used to treat patients with epilepsy, other types of seizures, and migraine headaches, to pregnancy category D. Category D drugs are those confirmed as presenting a risk of fetal injury. The FDA made the change because of evidence linking Topamax to cleft palates and cleft lips.

If you or someone you know was taken the drug Topamax and had a child born with a cleft palate or lip, please contact an experienced Attorney.