Justia Lawyer Rating for Robert D. Kreisman

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Defendant Mancari’s Chrysler Plymouth dealership in Cook County lucked out with an ideological “get out of trial free” card in a product liability case involving a car sold at his dealership. Murphy v. Mancari’s Chrysler Plymouth, Inc. 2008 WL 927727.

The Illinois Appellate Court’s clarification of section 2-261 of the Illinois Code of Civil Procedure makes it easier for non-manufacturers to be dismissed from strict product liability cases in Illinois. The relevant section states that

“A court shall not enter a dismissal order relative to any certifying defendant or defendants other than the manufacturer . . . where the plaintiff can show . . . That the defendant had actual knowledge of the defect in the product which caused the injury, death or damage”. 735 ILCS 5/2-621(c)(2).

So if plaintiff could prove that the defendant knew about the product defect then the defendant could not be dismissed from case. However, Murphy takes this interpretation a step further to determine whether it is enough that defendant just knows about the alleged defect or whether they need to know that the defect makes the product unreasonably dangerous, too?
In Murphy, Plaintiff Joseph Murphy claimed that he was paralyzed in a rollover accident because his Sebring lacked a roll bar safety device. He alleged that Mancari’s Chrysler Plymouth sold him a Sebring that was unreasonably dangerous because it lacked a roll bar. Mancari confirmed that they knew that the vehicle did not have a roll bar, but still claimed that this did not make them directly responsible.

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When you go to the hospital for a surgery you are seen by a bevy of treaters- anesthesiologist, surgeon, attending physician, residents, etc. And all of them are employed by the hospital, right? Wrong. Many of the physicians that practice at a hospital are actually independent contractors and the hospital can argue that it has no liability for medical negligence these individuals commit- even while working on their property.

In order to bring a claim against a hospital for medical negligence in Illinois by a non-hospital employed physician who provided services at the hospital, there needs to be “apparent authority”. Apparent authority deals with whether the physician appears to be an agent/employee of the hospital or clinic and has the power to act on their behalf. So if a patient can prove that they thought their physician was employed by the hospital and that it was reasonable for them to do so, then the hospital is liable for the negligent physician.

The current case law relies on the decision in York, M.D. v. Rush Presbyterian St. Luke’s Medical Center, et al. (2006 WL 1702529), an Illinois case based locally in Chicago. York established that because a patient relies upon a hospital to provide services during the course of his or her stay then they make hold the hospital liable for negligence by those performing those services, even if they are not employed by the hospital.

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Patient responsibility is a common phrase bantered around in medical negligence cases. It refers to the patient’s obligation to accurately represent their symptoms and complaints. The main reason this is an issue hinges on the fact that a large part of what a treating physician relies on, at least in the initial contact with a patient, is the patient’s subjective telling of his or her complaints.

For example, if a patient presents with a persistent cough but isn’t sure for how long this makes a large difference in the initial work-up by the physician. A cough is not a red flag for a serious, life-threatening disease and oftentimes is indicative of nothing more than a common cold. However, when combined with other factors, such as a history of smoking, recent unexplained weight loss, or bloody phlegm, it can be a clue to a more serious problem.

Gone are the days when our local family doctor took care of us from childhood through adulthood and knew all our family’s medical history. Nowadays a yearly check-up with your primary physician is comprised of a quick interview with a nurse and then an even quicker visit with the doctor. Most physicians don’t spend a lot of time prodding and considering each individual question. They expect that you will tell them concisely what is wrong, give them all the relevant information, and then they will diagnose and treat you. But it really isn’t that straightforward. In order to ensure that you get the most out of any physician encounter, and are receiving proper treatment, you need to be your own advocate.

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A Lake County, Illinois circuit court presided over Muno v. Condell Medical Center, et al., (No. 2-06-0587), a medical negligence case where a minor died after the planned surgery failed with respect to the anesthesiology provided. In this case, the anesthesiologist and his group decided not to bill the family after this child died during surgery. When the family brought suit against the anesthesiologist for his anesthesiology error, the physicians argued that he should be immune from any legal action under the Good Samaritan Act because he did not bill for his services.

Good Samaritan Act Regarding Exemption from Civil Liability for Emergency Care

Any [physician] who, in good faith, provides emergency care without fee to a person, shall not, as a result of his or her acts or omissions, except willful or wanton misconduct on the part of the person, in providing the care, be liable for civil damages. (745 ILCS 49/25)

At the bench trial the jury ruled in favor of the child’s family . But one of the defendants, an anesthesiologist, appealed the verdict stating that the court should rule in his favor because he didn’t bill the family for his services. The appellate court relied on Estate of Heanue v. Edgcomb for the proposition that a doctor cannot simply withhold a bill to the injured patient and stand behind the immunity provided by the Good Samaritan Act each time he/she choses not to diagnose, treat or simply errors causing injury or death to a patient.

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NASCAR driver Michael McDowell walked away from a violent rollover car crash during a race at the Texas Motor Speedway earlier this year. After skidding into a wall and flipping across the track several times he climbed out of his crashed vehicle unhurt. This complete lack of injury is unimaginable in your typical car, but NASCAR vehicles come equipped with roll bars to prevent roof crush in rollover crashes.

Unfortunately your typical street car doesn’t come equipped with as stringent safety standards as those enforced by NASCAR. Currently the roof crush standard in the United States requires that the roof must be able to withstand pressure of at least 1.5 times the vehicle’s weight. This is the same standard which was established in 1973 and has remained unchanged since its inception. In 2005 Congress proposed that the National Highway Traffic Safety Administration (NHTSA) upgrade its standards in an effort to reduce injuries and fatalities from rollover crashes.

Recently NHTSA came to Congress with a proposal for increasing the weight ratio to 2.5. The minimal increase has drawn a lot of controversy with its opponents calling the increase ineffective. In 2007, over 10,000 people died in rollover crashes. In Illinois there were over 5,000 rollover accidents in just 2006. Yet the NHTSA estimates that its proposed increase would only result in 13 to 44 fewer rollover fatalities a year. Senator Tom Coburn (R-Oklahoma) stated, “If we have a little increase in roof strength that doesn’t result in a major decrease in injuries and fatalities, we’ve done nothing.”

And while the ratio change is minimal and drawn criticism as being ineffective there is another controversy surrounding the bill. Possibly worse yet the NHTSA proposal has a throw in; the agency inserted language which would preempt car accident victims from suing any manufacturer who met the minimum standard.

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This 4th of July was the 232rd birthday of the United States. John Adams called the day in 1776: “a day of deliverance”, with “…pomp and parade…shows, games, sports, guns, bells, bonfires and illuminations from one end of this continent to the other from this time forward forever more.” And that sense of revelry has continued to this day, as can be seen in Chicago’s lavish and extensive July 4th celebrations.

The fun kicks off early in Chicago with its annual Taste of Chicago. Starting on June 27th thousands of people flocked to Chicago’s lakefront to partake in the many and varied vendors. There are the old standbys, like the traditional cheesecake from Eli’s Cheesecake, deep dish pizza from Lou Malnati’s Pizzeria, or the huge turkey leg from Helen’s Restaurant. But for me no trip to the Taste would be complete without a waffle cone overflowing with rainbow ice cream from the Original Rainbow Cone. And of course, any time you need a break from the endless rows of vendors you can veer off the main drag and listen to the many bands the Taste offers. Or you can just take a step back and people watch. The Taste attracts all sorts- from kids filling up their lazy summer days, out-of-town visitors trying to get a sense of Chicago, serious foodies with an extensive rating system for all the booths, or the suit-wearing business people running over for a quick bite during lunch. The Taste truly has it all and is a perfect way to jump start the July 4th festivities.

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On June 26, 2008 the U.S. Supreme Court ruled that the District of Columbia’s total ban on handguns violates the Second Amendment and its protection of an individual’s right to possess firearms.

D.C. law bans handgun possession by making it illegal to carry an unregistered firearm and prohibits registration of handguns. It also states that no person may carry an unlicensed handgun, but police are allowed to issue 1-year licenses. Residents who lawfully own firearms must keep them unloaded and disassembled, or bound by trigger lock or similar device.

The case was brought by Heller, a local policeman who was denied a license to keep his handgun at home. He hoped to enjoin the city from continuing its bar on handgun registration which prohibits carrying an unlicensed firearm in the home and also from its trigger lock requirement prohibiting the use of functional firearms in the home.

The ink on the opinion was not dry before Second Amendment groups filed suit in the federal court in Chicago challenging the city’s handgun ban. Lawsuit challenges to the local ordinances of other city gun bans are planned or filed for Evanston, Oak Park, Wilmette and others.

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A recent decision by an Illinois Appellate Court continued the debate regarding the interpretation of the construction statute of repose (Illinois Code of Civil Procedure, Section 13-214(b)).

The construction statute of repose states:

No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 10 years have elapsed from the time of such act or omission.

The statute seeks to protect construction parties from having to defend against stale claims. Since its inception the statute has been a balancing act between the rights of the injured party and the rights of the party responsible for the construction. Illinois courts generally have limited the statute to apply to claims of construction or improvement to real property. However, where some courts differ is on claims brought as to duties of maintenance and inspection.

In Ryan v. Commonwealth Edison Co., Ryan, an electrician, was injured when a circuit breaker exploded. He claimed that ComEd was responsible for the electrical current flowing into the building and that the severity of his accident was increased by ComEd’s negligence regarding its ongoing maintenance duties. ComEd argued that the claim should be barred under the statute because the injury resulted from design flaws in the power system when it was installed 20 years ago, which would place it well outside the 10 year limit imposed by the statute. ComEd’s motion for summary judgment was granted, but the 1st District Appellate Court, Sixth Division, overturned this decision stating that the injury was the result of poor maintenance and inspection rather than design flaws in the original power system and therefore the statute does not apply.

This circuit’s decision focuses on the continuing acts related to the product, rather than the date of the original design of the product. That is significant in that the court looked beyond a hard and fast date of design and instead examined the entire fact background of the power system. The ruling is fair and just and may lead to decisions based on the facts, rather on a certain date of installation, design, sale or manufacture of a product. Motions for summary judgment will be denied where genuine issues of material fact are open for a jury to decide.

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The Illinois Supreme Court handed down a controversial decision interpreting the Illinois Wrongful Death Act. The Illinois wrongful death case, Williams v. Manchester, 2008 WL 879036 (Ill Sup Ct), involved a pregnant woman, the plaintiff, Michelle Williams, who was 10.5 weeks pregnant when she was seriously injured in a car crash in Chicago.

Because of her injuries, doctors advised that her own health was at risk if the uninjured unborn child was not aborted. The legal issue was whether or not Ms. Williams could bring an Illinois wrongful death suit against the wrongdoer for the death of her child. The court held that she may not because the crash did not injure the child. The reasoning went on to state that if the unborn child had survived, there would be no case to bring for lack of injuries (damages).

The Illinois wrongful death case filed in the circuit court ended on summary judgment in favor the defendant. A divided panel of the Illinois Appellate Court reversed the lower court decision giving rise to the appeal accepted by the Illinois Supreme Court.

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Loyola University Medical Center was held liable by a Cook County jury in 2006 for “institutional negligence” involving the unsuccessful heart transplantation attempt of Carl Longnecker, the plaintiff decedent. The hospital was held liable for not ensuring that a doctor understood his role on the heart transplant team. At the same time the jury found that the same doctor, also named as a defendant, was not guilty of Illinois medical negligence.

Longnecker had been waiting for a transplant for 14 months when he was notified that a heart had been found for him. Dr. Parvathaneni was responsible for obtaining that heart and getting it to Loyola, where the transplant would be performed. According to surgeons at Loyola, Parvathaneni played a crucial role in the process in that they relied on his inspection and evaluation when they accepted and used the heart. Dr. Parvathenani testified that he was unaware that he needed to perform a detailed assessment of the heart, but just was responsible for getting it to Loyola quickly. So when it became evident that the heart had significant disease and allegedly never functioned after its removal the question was who was responsible.

The transplant surgeons decided to go ahead with the surgery, stating that they needed to go ahead with the transplant of the diseased heart because Longnecker’s own heart had already been removed. However, it should also be noted that the doctors could have used an artificial heart in this case. Longnecker never regained consciousness after the surgery and died several days later.

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