Illinois Injury and Mass Tort Lawyer Blog

Published on: June 29, 2016

Court Holds that Man Required to Submit to Physical Examination by Defendant’s Expert to Evaluate Injuries

In some cases, the cause of an injury is clear. But in certain cases, especially when people have a long, complicated medical history, the cause of the injury can be a major point of conflict in the case. In a recent case, the defendant argued that it was not liable because a man’s preexisting conditions were the actual cause of his injury. In that case, a man tripped and fell over an unsecured metal plate in front of a grocery cart corral. He suffered injuries on his knee, arm, neck, shoulder, and face. As a result, he had to receive extensive medical care, including two spinal surgeries. The man sued the grocery store for negligence.

The store retained a medical expert. He did not examine the plaintiff before formulating an opinion and preparing his report, but he did review the man’s medical records. Based on the medical records, the defendant’s expert determined that the man had a preexisting spinal condition that existed before the fall, and an MRI he had taken after the fall did not show an “acute injury.” The store then requested that the man undergo a physical examination by the store’s expert.

The trial court denied the request, but the state’s supreme court reversed. Since the man’s physical health and the extent of the injuries he sustained at the store were directly at issue, his condition and its cause were relevant. Thus, the physical examination was directly related to the condition in controversy, and the information could not be obtained through other means. Accordingly, the man was required to submit to a physical examination by the defendant’s expert in order to consider his past physical health as well as his present and future condition and the extent of his damages.

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Published on: June 28, 2016

Doctors Bring Action Against da Vinci Surgical Robot After Patients Suffer Metal Fragments in Their Brains

By Moll Law Group

Recently, a group of doctors filed a lawsuit against Intuitive Surgical, the maker of the da Vinci surgical robot. According to their complaint, which they filed in the Northern District Court of Georgia, the device caused metal debris to travel to patients’ brains during mitral valve surgical procedures. This condition is referred to as metallic microemboli. Additionally, the complaint states that Intuitive Surgical and a number of other companies and individuals manufactured and marketed the surgical robot even though they knew that it had certain defects that could result in metallic debris reaching surgical patients’ brains.

The plaintiffs include two patients who underwent surgical procedures for mitral valve-related conditions that involved the da Vinci surgical robot. After surgery, both plaintiffs discovered that metallic debris had traveled to their brains. The injuries that the plaintiffs have suffered as a result are severe, including neurological injuries, emotional suffering, and substantial medical costs associated with diagnosing, monitoring, and treating the microemboli. The plaintiffs are seeking to certify a class action lawsuit encompassing other patients who underwent mitral valve surgeries involving Intuitive Surgical’s da Vinci robot.

In May 2016, Intuitive Surgical released an Urgent Product Safety Notice informing the public that its da Vinci robotic device could create metal particulates that could travel to surgical patients’ brains. According to the company, it has not received any notices or reports indicating that patients have suffered injuries of the nature described in the safety notice.

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Published on: June 27, 2016

Experts in Medical Case Allowed to Testify Regarding Cause of Death Even Though There Were Multiple Causes

By Moll Law Group

Medical malpractice cases are extremely complicated because they involve a highly specialized knowledge of medicine and medical care. In a recent case, a medical malpractice claim was filed against a woman’s doctors after she died while in their care. The woman went to the emergency room at a hospital to seek medical treatment. The emergency room doctor ordered tests and diagnosed the woman with an incarcerated hernia and possible bowel obstruction, and he tried to reduce the hernia.

The ER doctor then called the woman’s primary care physician, who told him to call another surgeon. The surgeon came and reduced the woman’s hernia, and the woman was admitted to the hospital. On the following morning, the woman went into septic shock and experienced cardiac arrest, for which she was resuscitated. She then went into surgery to address a perforated bowel. The woman was then given medication for her blood pressure. Subsequently, her primary care physician switched her to a different medication. Suddenly, the woman’s blood pressure dropped, and she died.

A medical malpractice claim was filed against the woman’s medical providers. The defendants wanted to exclude the testimony of the plaintiffs’ two expert witnesses. They argued that the witnesses had not sufficiently testified as to the cause of the woman’s death, as required under the Daubert case. Under the Daubert case, a U.S. Supreme Court decision, an expert’s scientific testimony must be based on reasoning or methodology that is valid and can be appropriately applied. The factors to consider are whether the theory has been or can be tested, whether it has been subjected to peer review and publication, its error rate, its maintenance and standards, and whether it is generally accepted within the scientific community.

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Published on: June 25, 2016

Court Dismisses Case After Failure to Pay Filing Fee Within Statute of Limitations

By Moll Law Group

In a recent case, a woman filed a complaint against CVS for negligence and wantonness. The injury occurred on September 2, 2013 after the woman fell on an unknown substance in a retail store. She filed the claim on August 26, 2015. When she filed the complaint, she filed an “Affidavit of Substantial Hardship,” which indicated that she could not pay the filing fee. A few weeks later, the court granted her hardship petition and waived the fee. However, the court later reversed its earlier order and denied her hardship petition. The woman then paid the filing fee. CVS then moved to dismiss the lawsuit because the two-year statute of limitations had passed before she paid the filing fee or before her hardship petition had been granted.

The state’s supreme court held that under a state statute, a plaintiff has to pay the filing fee or have a hardship petition approved within the statute of limitations. Even though the woman filed the complaint within the statute of limitations, it was insufficient to commence an action to extend the statute of limitations. The two-year statute of limitations had passed before she paid the fee or her petition was approved. Thus, even though she filed within the time period, her complaint was not timely and was dismissed.

Statutes of Limitations in Illinois

For legal proceedings, individuals have to file claims within a specified period of time, called a “statute of limitations.” The reasoning behind these laws is that there is a reasonable period of time that defendants will be subject to claims, so evidence will still be available, and so a person with a valid claim will pursue it with diligence.

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Published on: June 24, 2016

Segways Pose Serious Safety Risk to Consumers

By Moll Law Group

These days, a number of futuristic toys and machines are hitting the market, including hoverboards, drones, and the infamous Segway. This last device is a two-wheeled scooter that allows the rider to stand up while riding and steer the machine, which includes a self-balancing mechanism. Although many people have enjoyed riding Segways, and the devices have become popular at many tourist attractions, they are incredibly dangerous and can lead to serious injuries or even death.

In 2010, for example, a British entrepreneur died after the Segway he was riding drove off a cliff on his estate in Britain. The entrepreneur had purchased the company less than a year before the tragic accident. At the time of the accident, he had been driving one of the off-road models of the Segway, designed to handle more rugged terrain than common urban environments. This is not the only incident of injuries associated with Segways, with hundreds of people reporting to emergency rooms with serious traumas. According to a case review of injuries associated with Segway devices released in 2010, some of the most common injuries associated with the device are facial traumas, head injuries, and broken bones.

With tens of thousands of Segways in operation in the United States, many physicians and public health experts have asked the U.S. Consumer Protection Agency to promulgate stricter safety regulations for the devices to keep riders from harm. The study also urged riders to wear helmets and other protective equipment when riding Segways, which can be particularly important if the rider is inexperienced.

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Published on: June 23, 2016

Nurse Escapes Liability Due to Sovereign Immunity

By Moll Law Group

We all depend on medical professionals to take care of us while we are in the hospital. However, what we may not realize is that some hospitals can escape liability just because the hospital is operated by the state.

In a recent case, a man had surgery to reconstruct the back of his mouth at a state university hospital. He was then taken to the intensive care unit in the hospital to recover. The care required in the unit is complex because patients are often in very critical condition. Each nurse cares for two patients at most at a time. The nurses are required to closely monitor patients and carry out the orders given by the surgery team.

After the man’s surgery, his head had to be kept stable to enable blood flow. The doctors responsible for the man’s care did not write any specific orders about how to position his head or neck. On the day after the surgery, notes indicated that the man’s head should be kept “in a neutral position,” but nurses are not required to read these notes. Five days after the surgery, the man was found with his neck tilted to the right, and the staff present were told to avoid this practice. Later that day, he was again found with his head in the same position. His face and neck were very swollen, and he had to undergo additional surgery due to the swelling, which was unsuccessful.

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Published on: June 22, 2016

Whole Foods Market Receives FDA Warning Letter for ‘Serious Violations’

By Moll Law Group

Health food stores are becoming increasingly popular as consumers’ preferences for different categories of food products have shifted. Perhaps one of the most popular health food chains in the U.S. is Whole Foods Market, a specialty store offering a variety of alternative products, including organics, gluten-free, and vegan. On June 8, 2016, the U.S. Food and Drug Administration, the agency responsible for overseeing food safety and labeling for the vast majority of our food system, issued a warning letter to Whole Foods Market, identifying a number of “serious violations” it found after completing an inspection of one of its stores in Everett, Massachusetts, in February 2016.

Among the violations identified, Whole Foods Market failed to manufacture, package, and store foods under conditions that would reduce the growth or introduction of potential contaminants. For example, the inspectors observed that the company was preparing ready-to-eat pasta products under areas where moisture from ceiling joints above was dripping onto the counter space below.

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Published on: June 21, 2016

Student Hit While Crossing the Street to Board School Bus Entitled to Benefits Under Bus’ Insurance

By Moll Law Group

School bus drivers’ duties may be considered to start and end with children getting on and off the bus. But school bus drivers may also be responsible for making sure that students safely cross the street when entering or exiting the bus. In a recent case, a court held that a bus driver’s duties extended to helping children safely cross the street, and the bus’ car insurance was required to pay benefits as a result.

A girl was on her way to take a school bus to school. After she received a signal from the bus driver, she crossed the street to get on the bus when she was hit by another car. The girl filed a complaint to receive benefits from the bus’ insurance company for her injuries. The state required that car insurance included coverage for “PIP (personal injury protection) benefits,” which provide benefits to those injured in car accidents. The girl was trying to recover PIP benefits that were available to those in the vehicle as well as other people involved in the accident, who were not in another vehicle.

The insurance company that insured the bus argued that it was not “involved in the accident.” However, that state’s supreme court found that it was. The bus driver controlled the process of entering and exiting the bus, and the accident happened when the bus driver signaled for the girl to cross. Part of a school bus’ operation is to safely pick up and drop off students, and that role was clearly involved in this accident. Also, the accident was within the common understanding of a motor vehicle accident, since she was hit by a car while crossing to board the bus. Finally, even if the other driver may have been at fault, the girl was still entitled to PIP benefits, since the bus was involved in the accident. Therefore, the girl was entitled to the benefits from the bus’ insurance company.

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Published on: June 20, 2016

Fluoroquinolone Antibiotics Linked to Aortic Aneurysms, Achilles Tendon Ruptures, Detached Retinas, and Fatalities

By Moll Law Group

Recently, a rash of cases has sprung up involving fluoroquinolone (FQ) antibiotics. Marketed under a variety of names like Cipro, Levaquin, or Avelox, these drugs are used to treat a wide variety of infections. Some sources estimate that roughly 26 million Americans are prescribed FQ antibiotics each year for a wide range of ailments, including pneumonia, urinary tract infections, and more.

According to a Consumer Report, the drugs may cause some serious side effects like aortic aneurysms, nerve damage, or dissections. As the largest blood vessel in the human body, damage to the aorta can cause serious implications for a patient’s health, such as strokes or heart attacks and even death in some serious cases. A dissection happens when the aortic walls deteriorate, which permits blood to seep into the outer layers of tissue. An aneurysm, on the other hand, is a bulging or enlarged part of the aorta. In many situations, these aneurysms have no symptoms and are incredibly difficult to identify. It is often not until the aneurysm bursts that the victim can tell something is wrong. Once it bursts, the victim has a 50 percent chance of surviving the event. For either an aneurysm or an aortic dissection, surgery is often required as well as a lifetime of additional medical treatment and observation.

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Published on: June 18, 2016

Ethicon Transvaginal Mesh MDL Lawsuit Update

By Moll Law Group

Thousands of women have come forward to bring lawsuits against the makers of transvaginal mesh products, alleging that they suffered serious, painful, and in some cases permanent injuries as a result of the products’ dangerous nature. Ethicon is one of the main manufacturers implicated in these lawsuits, which is a subsidiary of major health product manufacturer Johnson & Johnson.

In general, these lawsuits claim that after receiving an Ethicon transvaginal mesh implant, the women experienced a variety of adverse effects, including abdominal pain, painful intercourse, and other complications as the result of the device migrating after implantation or otherwise not functioning as promised in the marketing materials associated with the device. Several of these women required subsequent revision surgeries and will need constant ongoing care to monitor the resulting complications.

There have been so many lawsuits filed against Johnson & Johnson regarding the Ethicon product that the lawsuits have been organized into an MDL or multi-district litigation. Similar to a class action, an MDL proceeding seeks to associate cases that have common facts, legal claims, and injuries. This helps expedite the processing of these cases and promotes consistency in how each case is adjudicated.

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