Chicago Accident and Injury Lawyer Blog

Nearly everyone who has ever been involved in an accident involving an injury has probably wondered, "Can I sue?" The only way to adequately answer that question is to consult with an experienced personal injury attorney. There are numerous factors that the attorney will consider, including whether or not it will be advantageous to sue. To that end, attorneys must research various avenues, such as potential defendants, the applicable statute of limitation (the allowable time period for bringing a lawsuit), which state or county to file the lawsuit, and relevant legal theories.

Personal injury attorneys are practiced at collecting the appropriate evidence before filing a lawsuit, an important factor in determining who to sue, whether the potential defendants have any assets to go after, and whether or not there is evidence that the injured person contributed to the incident. It is important to evaluate this information before filing a lawsuit. For example, if the driver of the car that hit you was on the job when the accident occurred, his employer may be liable as well. The employer must be named as a defendant to the lawsuit before the statute of limitations runs out. Likewise, if it appears that you are more than 50% responsible for the cause of the incident, it may not be wise to sue. Experienced personal injury attorneys will make these determinations.

Unfortunately, most attorneys cannot take on every case presented to them. Often, when an attorney decides not to take a case, it is not a reflection of the merits of the case, but a decision based on a series of other factors, including the attorney’s practice areas and location, conflicts of interest, or potential recovery issues.

One thing is certain: lawsuits take time. In Cook County, Illinois, it may take two to three years for a lawsuit to reach a resolution, sometimes more. The majority of the time will be spent in the discovery phase, where the attorneys will exchange documents and take depositions. During and after discovery, the parties may have disputes that require drafting and presenting motions to the court. All this may prompt a settlement among the parties, but great trial attorneys are always willing, prepared and able to take their clients' cases to trial if need be.

Every month, Jeffrey J. Kroll contributes to the Chicago Daily Law Bulletin in his column Balancing Life and the Law.

In last month's article, Where have all those happy lawyers gone, Jeff discussed the highs and lows of the practice of law.

Jeffrey J. Kroll is known by his peers to be a leader in Personal Injury and Wrongful Death. As a guest columnist for the Chicago Daily Law Bulletin, he writes about balancing the demands of the practice of law with the demands of personal life.

You park your car and casually fling your car door open into a bike lane. This nonchalant conduct can often cause serious, even life-threatening, injuries to an innocent bicyclist. Called "dooring," drivers and bicyclists must take steps to prevent such occurrences as Spring approaches and more and more bicyclists take to the streets.

I recently read Jon Hilkevitch's article, "Bikers call for state to count 'dooring' accidents," in this week's Chicago Tribune. It is a must read for bicyclists and motor vehicle operators. There, he addresses how dooring accidents, while potentially one of the most dangerous threats to bicyclists, are not tracked by the Illinois Department of Transportation (IDOT). This is concerning because dooring has become a serious safety threat to cyclists, with one informal study showing that "more than half the people who bike on streets have been doored at least once."

Hilkevitch further reports: "From 2005 through 2009, there was an average of more than 3,500 crashes each year between vehicles and bicyclists in Illinois, resulting in 18 to 27 cyclists killed and more than 3,300 injured annually, according to IDOT statistics."

Dooring accidents, according to the Active Transportation Alliance, are "the most prevalent threat to on-street cyclists." Perhaps the need for further legislation in this area is warranted. The Illinois legislature recently amended Section 11-703 of the vehicle code to authorize police officers to issue citations to motorists who "in a reckless manner, drive the motor vehicle unnecessarily close to, toward, or near a bicyclist, pedestrian, or a person riding a horse or driving an animal-drawn vehicle." Depending on the severity of the injury, a person convicted under this statute could be found guilty of a Class A misdemeanor or a Class 3 felony.

The Law Offices of Jeffrey J. Kroll has seen too many dooring accidents that have caused devastating injuries. We have represented many Illinois bicyclists who have been injured by a driver’s negligence.

In February 2011, the trucking industry shipped 4.2-percent more goods than it had just one year ago, according to the American Trucking Association's latest report.

With more goods being shipped, one can expect more trucks on the road. With more trucks on the road, truck driver regulation compliance and safety are paramount.

While there has been a lot of press regarding the dangers of truck driver distraction due to cell phone use and text messaging while driving, another concern is truck driver fatigue. A major contributor to fatigue: sleep apnea. According to the Federal Motor Carrier Safety Administration's article Snoring-No Laughing Matter:

It appears that commercial truck and motorcoach drivers might be at higher risk of having this disorder. A study conducted by the University of Pennsylvania and sponsored by the Federal Motor Carrier Safety Administration (FMCSA) and the American Transportation Research Institute of the American Trucking Associations found that almost one-third (28 percent) of commercial truck drivers had some degree of sleep apnea. (citation omitted) The study found that the risk of having sleep apnea depended on two major factors, age and degree of obesity, with prevalence.

Federal law establishes the maximum amount of hours drivers are allowed to work. Drivers must document hours spent driving, on-duty but not driving, off-duty, even time spent in the sleeper berth (the trucking industry's term for the truck's sleeping area), as well as miles travelled among other things. 49 C.F.R. 395.8. Such standards aim to prevent fatigue; yet, the industry constantly grapples with this issue.

Cases involving collisions with trucks are more complex than cases involving collisions between cars, as trucking cases often involve a mix of federal and state laws and statutes. Also, trucking accident cases frequently involve considerable personal injury claims resulted from serious injuries and often death. Those injured in a trucking incident, must hire a personal injury attorney who is familiar with litigating trucking cases -- one with proven results, experienced at choosing the right experts, and with knowledge of this area of the law.

Continue reading " TRUCKING CASES: KNOWING THE LAWS THAT GOVERN THE BIG RIGS " »

The American Academy of Pediatrics recently announced that "children riding in cars should remain in rear-facing child safety seats until at least their second birthday and preferably even longer," according to news reports. Typically, parents and care givers are advised to turn around child car seats after the first birthday or when the child reaches 20 pounds.

The American Academy of Pediatrics issued a number of additional recommendations, including prolonging the use of seats with a five-point safety harness, which buckle between the legs, as long as possible, and delaying the use of booster seats. Children should continue to use booster seats until they are 4 feet 9 inches tall, and should remain in the backseat until age 13.

This new research shows that children under 2 are "75 percent less likely to die or be severely injured in a crash if they are in a rear-facing child restraint." Parents and caregivers should not be so quick to transition children from rear-facing seats to forward-facing seats to booster seats. Children lose protection at every stage.

The federal government is expected to issue updated child seat guidance based on the Academy of Pediatrics study.

Ridiculously dangerous, but not shocking. In a new study by State Farm, 19 percent of drivers confessed that they have searched the Internet while driving. The study also revealed that 35 percent of drivers have sent or received text messages while driving, and about 74 percent of drivers talk on the phone while driving.

Like I said, I am not necessarily shocked by these numbers. Cellular telephones and smart phones have become an extension of our hands, some say even our brains. It is frustrating to think about how many find it difficult to resist the impulse to check an incoming email or Facebook postings while driving. It seems no matter how hard Ray LaHood, the U.S. Department of Transportation, and even Oprah attempt to discourage drivers from falling victim to the distraction of texting, emailing, and searching the web while driving, people cannot appreciation the true danger that these actions pose to themselves and others. Wake up! Get your eyes on the road and take your hands off the phone!

In a matter of first impression, the First District Appellate Court of Appeals recently decided that an expert doctor's written medical report prepared pursuant to 735 ILCS 5/2-622 (Section 2-622) could be used against the expert as a prior inconsistent statement for impeachment purposes. Iaccino v. Anderson, 940 N.E.2d 742 (1st Dist. 2010).

In Iaccino, plaintiffs brought a medical malpractice action for injuries sustained by a minor plaintiff during labor, claiming that defendant doctor negligently administered the drug Pitocin to the mother, causing hyperstimulation to her uterus and resulting in minor plaintiff's oxygen deprivation. Defendants' theory of the case was that the proximate cause of minor plaintiff's injury was an infection in the placenta that traveled to the fetal brain, causing brain damage before any alleged malpractice by defendants. The trial court permitted defendants to cross-examine and impeach plaintiff's expert with inconsistencies between some of the opinions contained in his written Section 2-622 medical report and his trial testimony. The jury returned a verdict for defendants. Plaintiffs appealed, arguing that the Section 2-622 report is "only a threshold opinion usually prepared at a point before all the facts are fully developed in discovery;" therefore, defendants should not have been permitted to cross-examine and impeach plaintiff's expert witness with the document. 940 N.E.2d at *9-*10.

The First District Appellate Court disagreed with plaintiffs, affirming the trial court and finding that an expert's 2-622 report could be used as a prior inconsistent statement for impeachment purposes.

In a medical malpractice case, the plaintiff must establish the standards of care against which the physician conduct is measured by the use of expert testimony. 940 N.E. 2d at 7. Section 2-622 does not prescribe the form that a written medical report must take and there is nothing in the statute that prevents the author of such a report from qualifying his opinions to make clear that they are preliminary opinions subject to amendment or supplementation upon the acquisition of additional information such as additional medical records or deposition testimony. Id. at *10.

My advice: If your expert's reasons for the breach of standard of care changes by the time the trial of your client's medical malpractice case arrives, make sure that you have thoroughly prepared the expert to explain any inconsistencies that may exist between his report and his trial testimony. This is a credibility issue that medical experts must be prepared to address.

Every month, Jeffrey J. Kroll contributes to the Chicago Daily Law Bulletin in his column Balancing Life and the Law.

In last month's article, A degree of medical uncertainty, Jeff discussed the degree of uncertainty in medical opinions.

Jeffrey J. Kroll is known by his peers to be a leader in Personal Injury and Wrongful Death. As a guest columnist for the Chicago Daily Law Bulletin, he writes about balancing the demands of the practice of law with the demands of personal life.

On December 14, 2010, Jeffrey J. Kroll and Heather A. Begley, settled a matter involving a serious injury for $5 million dollars. With regard to the settlement, Jeff Kroll stated, “I am satisfied that this young man, who has worked so hard to continue on with his life, will be financially secure as a result of this settlement to provide him with stability and the necessary medical care.”

On January 4, 2011, Jeffrey J. Kroll and associate, J. Patrick White, also settled a matter involving a serious foot injury for $1.5 million dollars. A railroad worker was injured when the outrigger pad on a crane slipped on to the railroad worker’s foot, causing serious injury. A suit was brought against the railroad company and the crane company.

On January 5, 2011, Jeffrey J. Kroll and associate, J. Patrick White, obtained a settlement for over $3 million dollars for an injured police officer. The $3,065,000.00 settlement occurred after 15 depositions were taken. The police officer sustained a left ankle fracture and a fracture of his left knee.

Check out our recent newsletter for more news from the Law Offices of Jeffrey J. Kroll.

I can't help it. Every March, I fall victim to Spring fever. A little early, I know, but I am anxious for warm, sunny days to grace Chicago once again. If you are like me, you too cannot wait to come out of hibernation and enjoy life in and around the Chicagoland area. With that in mind, throughout this season, I plan to post a number of blogs addressing pedestrian and bicycle safety issues, from bicycle helmet use to issues involving pedestrians as well as pertinent statutes and much more. All of which are aimed at your safety.

To kick this series off, I will address one of my biggest concerns with bicycle safety: the use and nonuse of bike helmets. As a father to two young children, I require my children to wear helmets while riding their bicycles. There is no Illinois statute supporting my rule, but a number of towns, like Barrington, Illinois, mandate that children under 17 wear helmets while riding. (The City of Chicago requires that bike messengers wear helmets.) Required helmet use can be controversial. Some say advocates would be wise to focus their attention on proper bicycle use over mandated helmet use, especially in an urban setting. Supporters of bike helmet laws believe that helmet use can help prevent serious brain injury in the event of a collision or fall. In fact, the State of Illinois has reported that a bicycle helmet can reduce the risk of head injury by up to 85 percent in the event of a crash. When it comes to children, however, the effectiveness of the bike helmet in preventing injury depends on whether or not the helmet fits properly and complies with Consumer Product Safety Commission standards.

To prevent devastating injuries, drivers must keep their eyes on the lookout for bicyclists and pedestrians as more and more people venture out of the house as the weather warms up this Spring. No texting, emailing, facebooking or tweeting while driving please. Although the road may appear to be wide open one moment, a bicyclist or pedestrian can appear at any time. Illinois requires that drivers exercise due care to avoid colliding with anyone operating a bicycle, with a pedestrian, or with any other device propelled by human power. 625 ILCS 5/11-1003.1. Please be alert and aware.

As I have documented over the past few days, demonstrative evidence is no longer limited to hand-drawn models, graphs, charts, or diagrams. Successful trial lawyers now incorporate digital and computer-generated images into their visual strategy when presenting a case to the jury.

A visual strategy is akin to a game plan. For example, when preparing to play a football game, the team’s coach will use the chalkboard/dry-erase board to draw out the plays that he would like the team to make during the game. The trial attorney must develop a similar visual game plan, deciding whether the use of demonstrative evidence is warranted for proof, reinforcement, explanation, or illustration of any points or issues. Likewise, the trial attorney must designate which demonstrative evidence will compliment the testimony of certain witnesses.

A wise trial attorney will take advantage of the wide latitude courts grant them in educating and persuading the jury with the aid of experts and demonstrative evidence. Allow the jurors to think their job is easy because your expert simplified the case with use of demonstrative evidence. Imagination and creativity should not be stifled in preparing for trial. Below are some examples of evidence that could and should be utilized as exhibits during a personal injury trial:

• Blow ups of x-rays
• Life size skeleton or model involving the anatomy
• Charts or graphs
• Computer simulations
• Hardware from surgery
• Tens Unit
• Braces, cane, crutches
• Casts
• Bottles from prescriptions for pain
• Photographs
• Videotapes
• Video recreations of incidents
• Illustrations
• Aerial Photographs

As a personal injury trial lawyer for 20 plus years, I have always been interested in the use and presentation of demonstrative evidence. I know that the future of demonstrative evidence in the courtroom is moving in a digital direction. Demonstrative evidence has historically been an important tool for informing the jury of complex ideas and procedures. As attorneys developed new and creative ways of presenting information, courts have embraced their efforts as is demonstrated in numerous decisions. (See, i.e., "Lights, Camera, Action-Using Videotapes at Trial in Illinois," Vol. 86, January 1998, Illinois Bar Journal). Decisions like Arlton v. Lafayette Retina Clinic, 936 N.E.2d 831 (Nov. 9, 2010)., which I discussed in yesterday's blog, assure me that the justice system is open to accepting creative demonstrative evidence so long as the demonstrative aid is authentic and will assist the jury.

Historically speaking, two cases that I continually favor in support of the use of demonstrative evidence at trial are Van Welden v. Ramsay's Corp., 199 Kan. 417 (Kan. 1967), and Bugno v. M. Sinai Hospital Medical Center, 201 Ill. App. 3d 245 (1st Dist. 1990). When I offer demonstrative evidence -- be it computer-generated simulations or simple diagrams -- I often cite these cases for support.

In Van Welden, plaintiff fell down the stairs at defendant's department store, suffering injuries including a compression fracture of the seventh dorsal vertebra, lacerations of the scalp and other minor lacerations and bruises to the face. At trial, plaintiff's physician testified with the use of an artist's sketch of a thoracic vertebra. On appeal, the Supreme Court of Kansas found no error in allowing the physician to use the sketch to illustrate plaintiff's injury to the jury. The Court stated: "If the sketch be a substantially correct reproduction of the injured part of the anatomy it should be admissible within the trial court's discretion." The test as to the admissibility of medical and anatomical charts is their capacity to inform the jury, and where they are accurate and fully explained, they are admissible even though abstract. 199 Kan. 417, 420.

In Illinois, while the admission of demonstrative evidence is within the discretion of the trial court, the demonstrative evidence must help explain some relevant issue in the case. Bugno, 201 Ill. App. 3d 245, 250 (finding that freehand drawings depicting the condition of plaintiff's leg based on descriptions provided by witnesses were properly admitted where they were highly relevant to the issue of causation and necessary to aid the jury in its understanding of the witnesses' testimony). So long as "demonstrative exhibits [are] relevant and actually explanatory, * * * courts have * * * allowed the exhibits regardless of their emotional effects." Id. at 251.

Metra, the Chicago area commuter passenger service, has installed a new pedestrian grade crossing system at eight stations on its Union Pacific West Line beginning March 1, 2011. The system, named Another Train Warning System (ATWS), is the latest change by Metra and Union Pacific to improve the flow of commuter and freight traffic. ATWS, which employs audible and visual alerts to warn pedestrians at crossings near the stations that the second train is approaching or present, can be found at the Maywood, Melrose Park, Elmhurst, Villa Park, Glen Ellyn, College Avenue, Winfield and Geneva stations.

ATWS has not come without a trade off. Freight trains will no longer be held back from rolling through commuter rail stations along the Union Pacific West Line during rush hour. Metra has also eased its policy that formerly prohibited commuter trains from entering a station when another train was picking up or dropping off passenger.

All pedestrians and motorists, please be aware of these changes, which -- in my opinion -- come close to bordering on favoring productivity over pedestrian/motorist safety.

Last November, the Indiana Court of Appeals decided Arlton v. Lafayette Retina Clinic, 936 N.E.2d 831 (Nov. 9, 2010). Why is this important to Illinois lawyers and victims of medical malpractice? For personal injuries lawyers everywhere this case provides further support for the use of demonstrative evidence when presenting a client's injury to the jury. Persuasive demonstrative evidence appeals directly to jurors’ life experiences and helps jurors understand potentially complex issues. People grasp and retain ideas better when they are conveyed through images and words. Arming the jury with the appropriate information in the most easily-received form empowers the jury to return a just verdict. As the world outside of the courtroom becomes more and more digitally driven, trial lawyers must find ways to incorporate technology into the presentation of their cases. I think that Arlton is a fantastic case that addresses this ever-evolving issue.

In Arlton, Plaintiff suffered from a condition that caused an abnormal growth of blood vessels near the retina, namely choroidal neovascularization ("CNV"), which required periodic laser eye surgery to cauterize the blood vessels. Plaintiff was first treated for the condition in 1987. In 2002, angiogram photos revealed that plaintiff's condition had worsened. As a result, defendant doctor performed laser photocoagulation surgery on plaintiff's eye. During the surgery, defendant doctor's first laser shot into the eye caused plaintiff to jump; as a result, defendant doctor burned the laser spot within the area of a pre-existing scar, which ultimately caused plaintiff to suffer a post-surgery blind spot.

Plaintiff brought a medical malpractice action against defendant doctor and his clinic, alleging that he suffered permanent injury to his eye as a result of laser eye surgery. The primary issue at trial centered around the location of the laser spot that caused plaintiff's blind spot. Plaintiff and defendants stipulated to the admission of digital images from angiograms performed before and after the surgery at issue. Each juror was provided a color copy of all of the photos in an exhibit binder. The trial judge, however, sustained defendants' objection to plaintiff's admission of enlarged copies of the angiogram images. The judge also sustained defendants' objection to plaintiff's request to provide the jury with access to the digital information on the previously admitted CD-ROM discs. The jury returned a verdict for the defendants. Plaintiff subsequently appealed.

The Indiana Court of Appeals reversed and remanded, holding that the trial court abused its discretion when it sustained the defendants' objection to the admission of the enlarged photos, stating that there was no evidence that the photos were altered in any way other than to enlarge them. In support, the Court noted that Indiana Evid. R. 1001’s definition of a "duplicate" includes enlargements, and its Rule 1003 allows for the admission of duplicates unless there was a question of authenticity or the duplicates would otherwise be unfair. At trial, plaintiff's expert specifically testified that at least one of the enlargements was an accurate "reflection" of a digital image that had already been admitted into evidence without objection. Therefore, the Court of Appeals found no issues of authenticity or any other reason to deny admission of the enlargements.

Regarding the digital images, the Court also recognized that the trial court abused its discretion by denying them to the jury. To that end, the Court provided two possible suggestions for providing a jury access to digital evidence: (1) transforming the evidence into a medium that is accessible without a computer (such as providing the information in the form of a DVD); or (2) providing the jury with a "clean" computer that contains no other information and which has no ability to access the Internet.

Continue reading " DEMONSTRATIVE EVIDENCE IN MEDICAL MALPRACTICE CASES, PART 1 OF 3 " »