Justia Lawyer Rating for Robert D. Kreisman

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In a case involving injury to a 7 year-old who was kicked in the back by a horse, the Illinois Appellate Court decided the question of whether contributory fault was a valid defense to the lawsuit.

The plaintiff brought this personal injury case seeking compensation under the Illinois Animal Control Act which provides:

If a dog or other animal, without provocation, attacks, attempts to attack or injures a person who is peaceably conducting himself or herself in any place where he or she may lawfully be, the owner of such dog or other animal is liable in civil damages to such person for the full amount of the injury proximately caused thereby. 510 ILCS 5/16.

In this case, the trial judge allowed the defense of contributory negligence. But the court looked to the case of Johnson v. Johnson, 2008 WL 4830822 (1st Dist., Nov. 5) to reverse the trial court’s judgment. Johnson found that “A plaintiff’s contributory fault is only relevant to the extent that it relates to the element of provocation. It is not a defense in and of itself.”
The Animal Control Act is a derogation of common-law and is not a strict liability statute. Therefore it does not impose strict liability on animal owners whose animal inflicts injuries upon others.

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The U.S. Government has given the go-ahead for the world’s first test in people of a therapy derived from human embryonic stem cells. The federal drug regulators have said that political considerations had no role in this decision. It did however coincide with the inauguration of President Obama who has pledged to remove the restrictions placed on the field by the previous administration.

The FDA approval comes a little more than 10 years after the first human embryonic stem cells were isolated at the University of Wisconsin. Because these cells can turn into any type of cell in the body, the theory is they may one day be able to provide tissues to replace worn-out organs or non-functioning cells to treat diabetes, heart attacks and other diseases. The field is known as regenerative medicine.

The clearance of the clinical trial is to be announced by the biotechnology company, Geron . The trial focuses on treating spinal cord injuries, which could help people suffering traumatic injuries from car accidents or motorcycle accidents. When Geron first applied to the Food and Drug Administration to conduct the trial last March their request was refused and more information was requested about the trial.

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According to an Illinois Appellate Court, if an injured employee is fired for conduct related to his or her Illinois workers’ compensation claim, then he or she is not entitled to benefits for temporary disability under the Illinois Workers’ Compensation Act. Interstate Scaffolding, Inc. v. Workers’ Compensation Commission, 2008 WL 4658600 (W.C. Comm. Div., Oct. 20).

In Interstate Scaffolding, an Illinois worker was injured on the job when the emergency team dropped him from a backboard. The worker hit his head and suffered a concussion, blurred vision and other medical issues.

After returning to work with restrictions to light duty, the worker was found to have written “religious maxims” on the walls of a storage room. A few months later he was in a verbal confrontation with an assistant to the company’s president. Shortly after this occurred the worker was fired.

The legal question of first impression was whether or not this worker lost the right to his temporary total disability benefits (TTD) when he was fired for conduct that was allegedly unrelated to his workers’ compensation claim.

Under Illinois law, claimants seeking TTD benefits must prove only that they are not working, but that they are unable to work. The dispositive inquiry is whether the claimant’s condition has stabilized and whether the claimant has reached his or her maximum medical improvement. This requires a medical release to return to work, medical testimony or evidence concerning the claimant’s injury and the extent of the injury. Once the claimant has reached maximum medical improvement, the disabling condition has become permanent so he is no longer eligible for TTD benefits.

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An Illinois oncologist was found not to be qualified to testify as an expert witness in a Chicago medical malpractice case against a surgeon accused of failing to diagnose and treat a patient’s lymphoma. McWilliams v. Dettore, et al., No. 1-07-0678.

In a split decision, the Illinois Appellate Court for the First District affirmed a Chicago Cook County Circuit Court Judge’s granting of a motion in limine brought by the defendant in a medical malpractice suit. The motion was brought to prevent plaintiff’s named physician expert from testifying that the defendant violated the standard of care when he chose not to perform a biopsy on the plaintiff’s swollen lymph node. The motion focused on the fact that the physician expert was a hematologist/oncologist, whereas the defendant was a surgeon.

However, the difference in specialties had nothing to do with the court’s decision to bar the plaintiff’s expert. Rather the court found it key that the physician expert had no experience with a surgeon’s decision-making process in deciding whether or not to perform a biopsy.

In his opinion, Judge Garcia stated that in order for a medical expert to be able to testify as to what the medical standard of care is for a given physician, he or she must be able to “step into the shoes” of that doctor. Judge Garcia found that while the oncology expert in this case might be critical of the defendant’s decision to not obtain a biopsy, he did not demonstrate in his testimony that he was familiar with the medical standards guiding a surgeon’s medical judgement.

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At the completion of a jury trial where the family of the deceased patient received a verdict of $3.6 million in an Illinois wrongful death case, a Cook County Circuit Court judge entered a verdict in favor of the defendant notwithstanding that verdict. However, on appeal, the Illinois Appellate Court reversed the trial judge’s decision and ordered that the case be returned on a motion for a new trial. Walton v. Dirkes, No.-08-0461.

The key issue in the case was whether or not the the patient had reported symptoms that would have matched a diagnosis of acute lymphoblastic leukemia, which wasn’t diagnosed until hours before his death.

The acute lymphoblastic leukemia went undiagnosed during two office visits to the defendant doctor. It wasn’t until Walton was admitted to the emergency room at Loyola University with an alarmingly high white blood count that the correct diagnosis was made. He died the next day from cardiac arrest related to his acute lymphoblastic leukemia.

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Chicago-based Resurrection Health Care has dispensed with a class action lawsuit by settling with uninsured patients who allegedly were excessively charged. Under the settlement agreement these patients will be issued vouchers for future health services at Resurrection Health Care facilities. Niewinski et al. v. Resurrection Health Care.

Notices have been sent to some 220,000 former patients informing them that they might qualify for the vouchers. The value of each voucher to be awarded will be determined on an individual basis and depend on payments that the uninsured patient made to the hospitals. In order to be considered for a voucher, a patient must have paid some or all of at least a $500 medical bill during a one year period from September 2001 to September 2008.

It is important to note that although Resurrection agreed to this settlement, it continues to deny any allegations of wrongdoing. However, since the settlement it has modified its billing structure and reduced the charges to all uninsured patients.

Resurrection Health Care System’s network includes the following Chicago hospitals: Resurrection Medical Center, St. Mary and St. Elizabeth’s Medical Center, St. Joseph’s Hospital, and Our Lady of the Resurrection Medical Center. The extended network also includes St. Francis Hospital of Evanston, West Suburban Medical Center in Oak Park, Holy Family Medical Center in Des Plaines, and West Lake Hospital in Melrose Park, Illinois.

For more information on obtaining your voucher, please contact Resurrection Health Care.

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In September 2008, a Illinois First District Appellate Court decision ordered Zurich American Insurance Company to cover a Illinois wrongful-death lawsuit against its insured Key Cartage and Terry Washington. Zurich American Insurance Co. v. Key Cartage, 2008 WL 4445122 (1st Dist., Sept. 30). The Illinois Supreme Court has agreed to hear this appeal in the case where Rose Services, an affiliate of Key Cartage, had leased the truck from Franklin Truck Group to haul waste.

It had been argued that Zurich should be obligated to provide co-primary insurance coverage because it issued a trucker’s insurance policy to Rose Services. Zurich argued that coverage was barred because a reciprocal coverage provision in its policy meant that unless it provided coverage to Franklin, Zurich was not obligated to provide coverage to Key.

The Illinois Appellate Court ruling, an issue of first impression, held that Zurich was required to provide omnibus coverage, which would extend the policy to any permissive driver of the truck. In their opinion the appellate court held that “[a]s a matter of public safety, Illinois public policy warrants mandatory omnibus coverage for commercial truckers that should not be limited by private agreement.”

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“You want to know my philosophy?” Illinois’ new governor Patrick Quinn asked. “One day a peacock. The next day a feather duster.”

Given what the last 6 years has brought the state, most would agree that the new Illinois governor, its 41st, has the right attitude for the job. But Illinois’ political history is brimming with stories of corruption dating back decades. The time for reform is ripe.

Today I attended a meeting of the Illinois Reform Coalition as an observer and member of the Union League Club of Chicago’s Public Affairs Committee. The Illinois Reform Coalition is composed of some of Illinois leaders from the ranks of business, religion, associations, government and labor. By the enthusiasm displayed, these members are keenly aware of the need to break the mold of Illinois political corruption highlighted by the “sale to the highest bidder” the senate seat of President Obama.

However, there are many opinions on what path Illinois government should take and it’s unrealistic to expect a group to reach unanimity on such a delicate issue. Most of the discussion centered around campaign financing. Some argued that the implementation of a limit on contributions could not completely remove the taint of Illinois politics. Skeptics in the group argued that labor and others will oppose restrictions on campaign contributions, including those sitting in Springfield now.

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A lawsuit brought on behalf of an individual for Illinois medical malpractice was found to be a nullity because the supposed lawyer was unlicensed. The so-called nullity rule directly punished the unknowing client in this case.

In Applebaum v. Rush University Medical Center, 2008 WL 4943860 (Nov. 20), the high court of Illinois explained that the nullity rule:

Should be invoked only where it fulfills its purposes of protecting both the public and the integrity of the court system from the actions of the unlicensed, and where no other alternative remedy is possible.

The high court clarified the application of the nullity rule in a case where the plaintiff personally filed a medical malpractice on behalf of his deceased father’s estate. At the time of filing the lawsuit, the plaintiff who was on inactive status with the Attorney Registration and Disciplinary Commission (ARDC).

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Kreisman Law Offices recently added two sculptures by Zimbabwe artists to its reception area in a show of support for the struggling people of Zimbabwe and the incredible economic woes facing its citizenry.

The two pieces were created by Chapungu artists and represent the vast wealth of human talent among the Zimbabwe people. This talent has long been recognized throughout the world and Chicago. In 2003 Chicago’s Garfield Park and the Botanic Gardens of Chicago displayed similar sculptures by Chapungu artists, along with other exhibits and presentations celebrating Zimbabwe’s culture.

Unfortunately, most of the world has been ignoring the agony of Zimbabwe, a once prosperous and medically advanced nation in southern Africa that is suffering from political and economic turmoil under the brutal rule of its government head, Robert Mugabe. Zimbabwe which was once known as the bread basket of Africa is now a country that can’t feed its own people. The unemployment rate is higher than 80%. Malnutrition is wide spread. It’s a nation overwhelmed by poverty, the HIV/Aids epidemic and hyperinflation.

The current living conditions in Zimbabwe are dire and the life expectancy is the lowest in the world: just 37 years for men and 34 years for women. Cholera is an epidemic. People have become ill with anthrax after eating the decaying flesh of animals. Power has been lost in the city morgue in the capitol city of Harare leaving corpses to rot.

Doctors and nurses are doing what they can under these most difficult circumstances. There are many facilities with no water, no functioning toilets and barely enough medicine or supplies to treat the very ill.

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