Illinois Injury and Mass Tort Lawyer Blog

Published on: March 17, 2017

Nursing Homes Have a Duty to Prevent All Abuse, Not Just Abuse Committed by Staff

Although concerns for nursing home residents often arise based on allegations of abuse by staff members, other residents can also be perpetrators of abuse. Of course, residents live together in one facility and will often interact, but a nursing home has an obligation to protect its patients—even from other residents.

The Nursing Home’s Duty to Prevent Abuse

Nursing homes have a duty to keep their residents safe and prevent abuse, including abuse from other residents. If one resident is being abusive towards other residents, then the resident should be controlled, and removed if necessary. There are also a number of ways nursing homes can help prevent abuse, for example by creating more private spaces for residents, improving lighting, ensuring proper staffing, and taking action when residents engage in abusive behaviors. If a nursing home fails to take an issue seriously, it may liable for injuries that could have been prevented.

All residents have the right to live in a safe environment. Mistreatment against residents can come in the form abuse, neglect, or exploitation. Abuse can include physical, mental, verbal, and sexual abuse. Neglect is the failure to provide proper care to a resident. Exploitation means the illegal or improper use of a resident’s money or belongings.

Federal nursing home regulations provide residents with certain rights, including the right to be free from abuse, neglect, and exploitation, to be treated with dignity and respect, and to have security of personal possessions. The facility is required to have policies and procedures that prohibit abuse, neglect, and exploitation, to investigate and report all allegations of abuse, and to protect residents from mistreatment.

Continue reading →

Published on: March 15, 2017

California Judge Approves $12.3 Million Settlement in Caldera Pelvic Mesh Lawsuit

By Moll Law Group

A federal judge in California recently entered an order approving a $12.3 million settlement involving Caldera Medical’s transvaginal mesh product and associated insurance claims. According to the terms of the settlement, Caldera’s insurance company will provide $10.6 million in payments to nearly 3,000 members of the class, in addition to over $600,000 in payment for attorney’s fees and costs associated with the lawsuit.

The judge issued the order despite 36 objectors who wanted the court to order an independent audit. The objectors argued that there was not enough evidence regarding whether the payment would be larger if the company, based in Agoura Hills, CA, went through a liquidation.

Regarding the mesh product, Caldera’s Vertessa Lite mesh was made of polypropylene mesh and used repair pelvic organ prolapse. Some reports estimate that as many as 40 percent of women experience some type of prolapse and that as many as 250,000 surgical procedures are performed to address this condition each year. When marketing the product, Caldera claimed that it was 31 percent stronger than other comparable mesh products on the market, lighter, and that it featured stronger suture pull-out strength.

Continue reading →

Published on: March 13, 2017

Zimmer Biomet Initiates Recall of Comprehensive Reverse Shoulder System Device Due to Fracturing

By Moll Law Group

The U.S. Food and Drug Administration (FDA) recently announced a Class I recall for the Zimmer Biomet Comprehensive Reverse Shoulder System, Model 115340 (“CRS”). A Class I recall is the highest level of recall according to the FDA’s regulations. This class of recall is used in situations in which there is a reasonable probability that using the subject product or exposure to the subject product will cause adverse health consequences or even death. Zimmer Biomet initiated the recall after reports indicated that the CRS device fractures at a higher rate than indicated on the label.

The CRS device is a shoulder replacement mechanism that is implanted into eligible patients, and it is designed with the intention of restoring arm movement. Some of the most common patients who have received the CRS device in a surgical procedure are patients who experience a tear in their rotator cuff and who experience severe arthritis in their shoulder as a result. This level of arthritis is commonly referred to as arthropathy. The patients have also typically experienced a failed shoulder joint replacement procedure prior to receiving the CRS implant.

According to the recall announcement, physicians who have used the CRS device in shoulder replacement procedures are affected. The announcement encourages them to review the safety notice and other associated information regarding the CRS device, identify any remaining devices that have not yet been used in surgical procedures, and contact any patients who received the CRS device in a surgical procedure. Patients who received or believe they have received the CRS device should consult their physician immediately. Devices subject to the recall were manufactured between August 25, 2008 and September 27, 2011.

Continue reading →

Published on: March 10, 2017

The Continuing Danger of Lead Paint in Chicago-Area Homes

By Moll Law Group

Many people assume that since lead paint is no longer legal, there is nothing to worry about. However, although lead paint has been banned since 1978, many homes still have lead paint underneath the current coat of paint.

A Landlord’s Duty to Tenants

A landlord has a duty to tenants to keep the property in a certain condition and to make certain disclosures to tenants. If a home was built prior to 1978, renters must receive a lead-based paint pamphlet and any known information about the presence of lead-based paint. In Illinois, a landlord also has a special duty to minors. A landlord may be liable for injuries if the landlord knows or has reason to know that minors frequent the premises, there is a dangerous condition, minors are likely to be injured based on their failure to appreciate the risk, and the expense of remedying the condition is slight compared to the risk to minors.

Lead Paint Poisoning Claims

Generally, lead poisoning cases are based on the theory of negligence. Claims may include a negligent failure to maintain safe premises, negligent misrepresentation, and negligent repairs. Plaintiffs may also be able to assert a breach of the covenant to repair and the implied warranty of habitability, as well as fraud and product liability claims, among others.

Continue reading →

Published on: March 8, 2017

Bed-Sores Considered a “Never Event” by Center for Medicare and Medicaid Services

By Moll Law Group

Never Events in Nursing Homes

Nursing home residents are at a particularly high risk of being victims of a never event, due to the lack of oversight present in most nursing homes. Unlike doctor’s offices or hospitals, nursing homes are not frequented by guests, and the residents often have limited contact with the outside world. This creates a situation in which there is little oversight, which allows for less-than-diligent staff members to cut corners when it comes to a resident’s care.

Perhaps the most common never events that occur in nursing homes are bed sores. A bed sore, also known as a pressure ulcer, is a skin condition that can develop, usually over a bony area, when too much consistent pressure is applied to the skin. Bed sores are most common among nursing home residents who are immobile. Nursing home staff should take extra precautions to ensure that immobile residents do not lie in the same position for hours at a time, and they should move or roll residents to prevent bed sores. Stage III and IV bed sores have been considered a never event by the Center for Medicare and Medicaid Services (CMS) for the past 11 years.

CMS is part of the Department of Health and Human Services and oversees two of the largest medical programs in the country, covering millions of Americans. One of the many functions that CMS plays is to help develop medical standards across the industry in hopes of providing better care.In pursuit of providing better and more effective medical care, CMS routinely updates a list of “never events.” Never events are “errors in medical care that are clearly identifiable, preventable, and serious in their consequences for patients, and that indicate a real problem in the safety and credibility of a health care facility.” These never events span the range of medical providers, including doctor’s offices, surgeons, clinics, and nursing homes.

Continue reading →

Published on: March 6, 2017

Proposed Class Action Fairness Act Would Mean Major Changes for Class Litigation in Federal Courts

By Moll Law Group

A senator from Virginia has introduced a proposed piece of legislation that would have dramatic implications for class action litigation if passed. The senator proposed the legislation with the intent of making class action lawsuits more fair and more efficient for all parties involved, including the court system. The bill would increase the recoveries for victims deemed deserving and filter out claims considered unmeritorious. These meritless claims are viewed as an unnecessary burden on judicial resources, according to proponents of the bill.

There are a number of ways that the legislation would change class action litigation in federal courts throughout the United States. Here are some examples. First, the legislation would require the plaintiff to demonstrate to an affirmative degree that there is “a reliable and administratively feasible mechanism” that the court can use to determine which potential class members are encompassed within the class. That mechanism would also need to provide a feasible and reliable way to distribute funds to those class members.

Next, attorneys would be prohibited from receiving class counsel fees until an accounting of the overall amount of fees that the defendant had dispersed is conducted. One of the things that the accounting would need to identify is the overall amount of compensation given to the class, the estimated or actual number of members in the class, the average compensation amount disbursed, and the highest sum provided to any single class member. It would also have to list any amounts paid to other individuals, including plaintiff’s counsel, and the reason for the payment.

Continue reading →

Published on: March 3, 2017

FDA Issues Warning About Risk of Bacterial Infection from Neti Pot Nasal Rinse Device

By Moll Law Group

When you are suffering from a bad cold or illness, finding a cure to alleviate your symptoms becomes a priority. There are a wide variety of over-the-counter methods available, but one of the most popular products on the market today is a Neti Pot. The Neti Pot is a device that flushes out congested nasal passages and helps people breathe more easily. The device is usually filled with water and a saline solution. The end of the device with a nozzle is inserted into the nostril, and the user then applies pressure to the device to force the water into the nostril and through the nasal passage.

According to a recent report from the U.S. Food and Drug Administration, however, Neti Pots may actually increase users’ risks of contracting an infection. In a statement warning consumers about Neti Pots, the FDA said that some tap water used in conjunction with the device can contain harmful bacteria and protozoa, including amoebas. If these bacteria are swallowed, the stomach is capable of killing them. If the organisms enter the nasal passage, however, they can survive and cause a potentially life-threatening infection. The FDA is advising consumers to use sterile or distilled water in Neti Pots in lieu of tap water. They also suggest boiling tap water and allowing it to cool before using it in the Neti Pot. Filtered water or bottled water may also be a viable option. It is also advisable to sanitize the device between uses to prevent cross-contamination or recontamination.

If you experience an infection linked to a Neti Pot, you can report the incident to the FDA’s MedWatch Safety Information and Adverse Event Reporting Program. Although Neti Pot is one of the most popular brands of nasal rinsing products, there are many similar devices sold under other brand names that pose an identical threat of nasal passage infection.

Continue reading →

Published on: March 1, 2017

California Court To Issue Ruling on Whether Glyphosate can be Listed as a Prop 65 Substance

By Moll Law Group

There are countless chemicals with which we come into contact in our daily lives. While some of these are open and obvious, like hand soap, others are more difficult to identify. California’s Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986, prevents businesses from exposing consumers to chemicals that are “known to the state to cause cancer or reproductive toxicity” through drinking water. They are also prohibited from exposing consumers to these chemicals without providing warnings on the product that meet a “clear and reasonable” standard.

Recently, the agency tasked with enforcing Prop 65, California’s Office of Environmental Health Hazard Assessment (OEHHA), announced that it intended to list glyphosate as a chemical subject to Prop 65’s warnings. Glyphosate is sold under the brand name Roundup for household use and used as a common pesticide in agriculture.

The agency based its decision on a report produced by the International Agency for Research on Cancer (IARC) in March 2015. The report concluded that glyphosate is “probably carcinogenic to humans.” IARC uses this designation for chemicals when there is inadequate or limited research demonstrating that the product causes cancer in humans, but there is enough evidence to show that the chemical causes cancer in animals.

Continue reading →

Published on: February 27, 2017

Illinois Court Holds Nursing Home Must Turn Over Internal Documents Related to Resident’s Fall

By Moll Law Group

In a recent case, an Illinois appellate court recently decided that a nursing home was required to turn over certain documents in a medical negligence lawsuit after a resident fell at the nursing home. The resident in the case was an 88-year-old woman who was allegedly injured in a fall while she was a resident of the home. The plaintiff, who was the patient’s guardian, filed a claim on behalf on the patient’s behalf and was trying to get a copy of an internal report from May 2012 after the patient’s fall at the home.

The nursing home argued that the internal documents concerning the patient’s fall were protected under the Illinois Medical Studies Act and under the Long-Term Care Peer Review Act and Quality Assessment and Assurance Protection Act.

The Quality Assurance Act and the Medical Studies Act

The Quality Assurance Act protects proceedings and communications involving a peer review or a quality-assessment-and-assurance committee at long-term care facilities. The Medical Studies Act is a similar act that also protects peer-review proceedings and communications but applies to medical facilities. The laws protect certain information in order to encourage internal studies to improve care for patients.

Continue reading →

Published on: February 24, 2017

Nursing Home Employee Assaults 85-Year-Old Resident

By Moll Law Group

Nursing home abuse often goes unreported due to the patient’s mental health and vulnerability. It can be difficult to detect abuse or neglect because family members are not present 24 hours a day. It also can be difficult to prove allegations of abuse because the nursing home resident may be unable to testify due to mental health issues such as dementia, or because the resident is no longer alive. That being said, there are laws that protect the rights of residents in order to protect them from cases of abuse or neglect, and anyone suspecting a loved one is being abused in an Illinois nursing home should consult with a dedicated personal injury attorney.

Protections for Nursing Home Residents

There are different statutes and regulations that protect the rights of senior citizens and nursing home residents. A central statute in Illinois is the Nursing Home Care Act (NHCA). The Act establishes a resident’s “bill of rights” and creates a system to resolve claims under the Act. Under the NHCA, nursing homes are liable to residents for any intentional or negligent act or omission that causes an injury to a resident. Neglect is defined as a facility’s failure to provide adequate medical care, mental health treatment, psychiatric rehabilitation, personal care, or assistance with activities of daily living necessary to avoid physical harm, mental anguish, or mental illness for a resident.

Continue reading →