Justia Lawyer Rating for Robert D. Kreisman

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When treating cancer the goal is always to obtain as early a diagnosis as possible so as to give the cancer patient the best possible odds. However, sometimes an early diagnosis is not possible. Sometimes there are no warning signs that something is wrong until the cancerous tumors have reached a later stage in development. But sometimes the warning signs are missed and the cancer is misdiagnosed as something else, in which case there would be an Illinois medical malpractice claim for failure to diagnose cancer.

A recent settlement of an Illinois woman illustrates this point. The Cook County resident filed an Illinois medical malpractice lawsuit against her orthopedic surgeon for a failure to diagnose cancer in her elbow. The delay in diagnosis required an amputation of her right arm in order to try and halt the cancer from spreading. However, this strategy did not work and the cancer metastasized to other areas of her body within the following year.

In order for there to be an Illinois medical malpractice case regarding a delayed diagnosis of cancer there needs to be evidence in the cancer patient’s medical records that medical professionals missed clear signs of the patient’s cancer. For this particular woman that sign came in the form of an MRI of her right elbow.

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In Illinois if you are injured on the job, or develop future injuries as a result of your employment, then you are able to bring an Illinois workers’ compensation claim, which would be handled by the Illinois Workers Compensation Commission (IWCC). However, if your injuries were the result of your career as a pro-football player, then you would not be able to bring a workers’ compensation claim under the IWCC. As a pro-football player your only option to recover medical payments under a workers’ compensation system is under the Industrial Commission of California.

These cases are brought in the Industrial Commission in California because that’s the only jurisdiction that allows long-retired professional athletes to pursue workers’ compensation for injuries they suffered and continue to suffer from their playing days. Illinois has no similar provision for recovery in the Illinois Industrial Commission.

Many of these retired National Football League (NFL) players are represented by Ron Mix and Mel Owens, two former NFL players turned lawyers. Mix and Owens represent over 1,000 retired NFL players in the workers’ compensation system in California. Like many Illinois workers’ compensation cases, decisions have to be made by the injured party as to whether to accept a lump sum settlement that would end any future payment of medical care or to leave open medical in case that the worker requires future medical treatment.

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A recent Cook County personal injury lawsuit examined the degree of care a railroad owes to its passengers. The Illinois personal injury case was brought by a commuter who alleged a dangerous condition at an Illinois Metra train station caused his injuries. Pence v. Northeast Illinois Regional Commuter RR Corp., No. 1-08-3668 (Feb 3, 2010).

At the time of his injury, the Illinois plaintiff was making his way from a nearby parking lot towards the Metra train station. The plaintiff tripped over a railroad tie, fracturing his wrist and left shoulder. The plaintiff’s lawsuit alleged that the railroad had breached the high degree of care that it owed to its passengers.

However, the plaintiff’s personal injury claims were problematic because by definition he was not a passenger when he was injured. At the time of his injury, the plaintiff was walking diagonally across an intersection in an area that was not officially designated as a parking lot. This seemingly small detail opened the way for Metra to move for summary judgment under an argument that the railroad was insulated from liability under the Local and Government Employees Tort Immunity Act.

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A recent Chicago birth injury settlement provides an extreme example of Illinois surgical complications. The Cook County medical malpractice case was filed on behalf of a boy who was left with severe brain damage following his cardiac surgery at Loyola University Medical Center.

The minor plaintiff was eight months-old at the time the Chicago medical malpractice occurred. According to the details of the case, the little boy presented to Loyola University Medical Center for cardiac surgery. This surgery was necessary due to his congenital heart condition, but should not have resulted in severe brain damage.

However, both during and after the procedure there was a marked reduction in the oxygen flow to the plaintiff’s brain, which in turn led to the unexpected brain injury. The minor plaintiff’s brain injury was classified as a hypoxic brain injury versus an anoxic brain injury. The difference between the two types of brain injuries is that a hypoxic injury results when the brain does not receive enough oxygen to properly perform its functions, whereas an anoxic injury occurs when the brain does not receive any oxygen. However, both hypoxic and anoxic brain injuries can result in severe brain damage, which is exactly what occurred in this case.

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A recent Illinois jury verdict against a railroad company illustrates the difference between Federal Employee Liability Act (FELA) claims and Illinois workers’ compensation claims. The plaintiff was a railroad conductor who suffered severe injuries after being run over by a railroad car while working. As a result of the Illinois train accident the plaintiff required amputations of both his legs.

If the plaintiff had been working for a construction company instead of a railroad company, than his injury would have been handled by the Illinois Workers Compensation Commission (IWCC) and he would have received immediate payments for his injury, medical care, and lost time from work. However, railroad employee injuries are covered under FELA, which puts the burden on the employee to prove that the injury was the result of the railroad’s negligence and not the employees.

Similarly, employers whose employees are ruled by Illinois workers’ compensation law are exempt from any lawsuits being filed against them by their employees as the result of an injury sustained at work. This protection is granted to those companies because of the assumption that if their employee is injured at work then the company will already be paying them under Illinois workers’ compensation rules.

However, under FELA, the railroads do not have to pay the employee anything if the company deems that the injury was a result of the employee’s negligence. So while the employee does not automatically receive any compensation from the railroad, the employee is also not barred from filing a lawsuit directly against their railroad employer. So while this Illinois train accident lawsuit was brought by a railroad employee against his railroad employer, Iowa Interstate Railroad, if the plaintiff had not been employed by a railroad he would not have been able to sue his employer.

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A recent Illinois workers’ compensation decision, Interstate Scaffolding, Inc. v. Illinois Workers’ Compensation Commission, No. 107852, 2010 WL 199914 (Ill.Sup.Ct.), examined whether a worker was entitled to temporary total disability (TTD) benefits following his termination. The Illinois Supreme Court reversed the Illinois Appellate Court’s decision, thus siding with the Illinois Workers’ Compensation Commission’s assessment.

The facts of the case involved a union carpenter who suffered serious injuries to his head, neck, and back when he fell on his head en route to the hospital after suffering heatstroke on the job. Over the next two years, the Illinois carpenter was unable to return to his normal duties at Interstate Scaffolding, Inc. During this period he fluctuated between not working at all and times of working light duty per his doctor’s instructions.

Under Illinois workers’ compensation law, the injured worker received TTD workers’ compensation benefits from Interstate Scaffolding, Inc. when he was not working at all. Yet when he was working light-duty, the employee was eligible for an Illinois workers’ compensation maintenance benefit to account for the difference in his pay as a carpenter and his light-duty wage.

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In Illinois, parties to a lawsuit can file motions in limine in an effort to keep certain information from being brought up at trial. The Illinois Appellate Court recently reviewed an Illinois personal injury case, Ford v. Grizzle, No. 5-08-0185, after the plaintiff claimed the defense received a favorable jury verdict due to the Circuit Court’s denial of plaintiff’s motion in limine.

The plaintiff’s motion in limine sought to prevent evidence being introduced related to plaintiff’s two prior traffic accidents and injuries. However, the defense contended that this information was relevant because there was extensive medical evidence demonstrating that the prior injuries were relevant to the plaintiff’s current injuries.

The trial court denied plaintiff’s motion in limine and the information was allowed at the Illinois personal injury trial. The jury returned a verdict in favor of the defense, which led to the plaintiff’s appeal to the Illinois Appellate Court that the introduction of the evidence regrading the two prior injuries had prejudiced the jury.

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A recent Cook County personal injury settlement highlights the importance of following building codes. The Illinois personal injury claim involves a 34 year-old male who injured his ankle after falling on stairs. The alleged cause of the worker’s fall was a non-uniform stair riser.

The stair that the man fell on allegedly measured about two inches higher than all the other stair risers in the relevant stairway. According to the ADA Accessibility Guidelines, the rise of all stairs must be uniform:

4.9.2 Treads and Risers. On any given flight of stairs, all steps shall have uniform riser heights and uniform tread widths. Stair treads shall be no less than 11 in (280 mm) wide, measured from riser to riser (see Fig. 18(a)). Open risers are not permitted.

Some cities or townships may have even more detailed requirements regarding stair rise. For example, the Chicago Municipal Code requires that risers not vary in height more than 3/8 inches. Given that the current Illinois personal injury lawsuit involved a variance of almost two inches would qualify as a building code violation under the Chicago Municipal Code.

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In the recently-filed Illinois product liability case of Padilla v. Hunter Douglas Window Coverings, Inc., No. 09-cv-1222 (Jan 19, 2010), the Northern District of Illinois Court reviewed the Plaintiff’s Complaint to determine whether the plaintiff’s complaint set out sufficient claims of liability against the three defendants. While the court ultimately decided that there were sufficient claims for potential negligence and liability on behalf of the defendants, if it had ruled that the plaintiff had not established a sufficient claim then the Illinois product liability claim would have been dismissed.

The review of the complaint in this lawsuit was prompted by the defense filing a Motion to Dismiss pursuant to the Federal Rule of Civil Procedure 12(b)(6). Under the Federal Rule 12(b)(6), the Court examines the Complaint to ensure it satisfies the following requirements:

• provides a clear and concise claim showing that the plaintiffs are entitled to receive relief from the defendants and that the defendants had fair notice of the underlying problem;
• a set of facts that are sufficient to support its arguments of liability on behalf of the defendant(s).

The Illinois product liability lawsuit was filed after the plaintiff’s toddler died after becoming entangled in a metal cord at his home’s mini blinds. The complaint was direct towards product’s manufacturer, Hunter Douglas Window Covering, and two industry trade groups involved in reviewing the safety of the mini blinds in question. Defendant WCMA is a window covering industry trade group responsible for the development and implementation of manufacturing standards. Defendant WCSC is a coalition of window covering manufacturers set up to correct the strangulation hazard posed by window coverings, such as those involved in Padilla.

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A recent ruling by an Illinois Appellate Court reviewed whether the ‘contact-sports’ doctrine applies an independently contracted trainer who has been injured by an amateur sports player. The court overturned a ruling made by a lower court in the Illinois personal injury lawsuit.

The facts of the DuPage County case deal with a hockey trainer who brought an Illinois personal injury claim after sustaining permanent vision loss when he was struck in the eye by an errant hockey puck. The puck had been fired by an amateur hockey player who allegedly was “sniping” at bottles that were lined up on a nearby bench.

The DuPage County judge dismissed the trainer’s allegations of willful and wanton conduct on behalf of the player and the amateur team as well as the two counts of negligence against both defendants. In doing so the judge cited that the actions on behalf of the defendants qualified as ordinary carelessness under the Illinois contact-sports doctrine.

However, the Illinois Appellate Court disagreed with the DuPage County judge and reversed the lower court’s ruling, stating that the trainer’s claim was not barred under the contact-sports doctrine.

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