Articles Posted in Legislation

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We often point out how securing a successful verdict is sometimes only part of the legal battle. That is because securing a judgement which shows that you are owed money is only the first step in actually receiving that recovery. In some cases, the process is relatively straightforward, and insurance companies or other parties ensure their obligations are handled. At other times, more extensive efforts much be undertaken to force those responsible to pay what is owed.

Another complexity involves using those funds–either a settlement or verdict–to repay third parties who also have a stake in the matter. Most notably, this usually includes government sources which provided support following the harm, usually in the form of medical care. Reimbursing Medicaid, for example, can often result in delay and headaches for those merely wanting to end the matter and get on with their lives. Fortunately, the Centers for Medicare and Medicaid recently supported plans to change procedures in such a way that will hopefully eliminate delay in making reimbursement claims.

In addition, some state Medicaid programs often try to demand excessive reimbursements, adding even more controversy and delaying a final resolution even longer. For example, North Carolina came under significant scrutiny recently as a result of state laws which found an irrebuttable statutory presumption that Medicaid was entitled to one-third of any tort recovery for which funds were provided. Essentially, this means that the state could demand significant portions of any recovery for a plaintiff without clear explanation for why the state needed to be reimbursed that much. Because the presumption was irrebuttable, there was nothing that plaintiffs in the state could do to show how the one-third taking was excessive in their case.

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We have often reported on the legal challenges faced by military service members (and sometimes their family) when trying to hold negligent doctors accountability for committing medical errors. Past rulings from the court have severely limited the rights military personnel to recover following these lapses. The general concern in the past was that allowing such suits for active military personnel might open up a can of worms for medical treatment conducting in the heat of battle. Obviously there is a higher likelihood of some adverse outcome if medical treatment is provided on a battlefield as opposed to a traditional hospital. However, that general principle has been extended such that military doctors are virtually immune from full accountability for their errors, even when making mistakes in the comfort of military hospitals far from anything that could be called a battlefield.

A few recent cases have been brought hoping to challenge past precedent and open the door for those severely hurt (or killed) as a result of poor care by military doctors. Yet most of those challenges have gone nowhere.

In a relatively new decision, however, a glimmer of hope was provided to those hoping to alter past precedents. In an opinion released earlier this week, Levin v. United States, the high court ruled that sovereign immunity principles did not apply to bar a medical malpractice suit by a military veteran who suffered harm as a result of a botch cataract surgery.

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Virtually all “tort reform” related laws come from individual states. While it is a constant matters of contention, there are limits on what issues the federal can (or should) involve itself. When it comes to rules related to the civil justice system in each individual state, the federal government has generally stayed out of the way. However, that is not because no one at the federal level wanted to impose their perspective on the entire country. In fact, in recent years there has been an alarming increase in proposed federal legislation on this subject. All Illinois residents who are interested fighting back against these dangerous policy proposals should keep abreast of the situation out of Washington (usually related to medical malpractice) to ensure lawmakers are made aware of their opposition whenever it pops up.

It is also helpful for local residents to understand different “tort reform” proposals which are offered by individual states. That is not because those proposals will have any effect in Illinois directly, but because those pushing tort reform efforts often hop from state to state pushing different measures. If something is passed in one state, there is always the possibility that it may eventually be pushed through here.

Treating Med Mal Like Worker’s Compensation?

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The Center for Justice & Democracy‘s “Courthouse Cornerstone” report on contingency fees is a helpful guide to learn more about the critical benefits conferred by these attorney fee arrangements. As we discussed this week, these fee arrangements ensure open access to the civil justice system for all those injured by the misconduct of others–regardless of their economic position. Fairness dictates that no one be denied access to recovery because they are not independently wealthy. Contingency fee arrangements ensure that

In addition, contingency fees help align the rights of a lawyer and their client to maximize efficiency. Because attorneys only recover when their clients do, and do not receive an hourly wage, there is a spur to resolve each matters efficiently and as quickly as possible. Similarly, because costs in these matters are “fronted” by the attorney (at risk of being lost permanently), the arrangement acts an inherent check on the filing of frivolous lawsuits. Attorneys have nothing to gain by filing lawsuits without merit, because it will only result in the firm losing money.

Laws Affecting the Arrangements

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This week the Madison Record reported on a new law related to attorney’s fees in Illinois medical malpractice cases. We previously blogged about the advance of the legislation which was supported by the Illinois Trial Lawyers Association (ITLA). As the story reported, with the Governor’s signature the law officially went into effect with the on Friday after making it through the General Assembly’s “veto session” earlier in the month.

Understanding Medical Malpractice Attorney’s Fees

Most medical malpractice cases for plaintiffs are taken by attorneys on a “contingency fee” agreement. This means that the injured party does not have to come up with any money up front to have representation in the case. Instead, the attorney is only paid if the plaintiff receives a settlement or jury verdict. If that happens the attorneys receives a percentage of the award. The exact percentage is agreed upon between the parties before the work gets underway.

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The legal system is complex. When working with local families on these issues, each Chicago medical malpractice lawyer at our firm often explains the basic procedural elements of the case. In learning about the process many community members are most surprised by the challenges that remain even after a judgement or settlement is secured. While reaching a specific damage amount might seem to be the end of the mattter, sometimes it is only half of the battle. That is because there is much work to be done between earning the award on paper and actually ensuring as much of it as possible actually goes to those harmed.

Part of the problem arises from actually collecting the funds from insurance companies or the defendants themselves. Another part of the problem stems from protecting the award from others who may claim to have a stake in it.

In fact, the U.S. Supreme Court will soon hear a case on just that issue, related to the rights of certain states to take large amounts of an award for re-payment for Medicaid programs.

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Contingency fees are a critical part of the civil justice system, used frequently on many personal injury cases and medical malpractice matters. The basic idea is that it is manifestly unjust for someone injured by the misconduct of another to be prohibited from seeking accountability because of their inability to pay up-front legal costs to bring the case. After all, the very reason that many lawsuits are filed is because of the precarious financial situation some are placed in after an accident. Life savings are often drained to pay for medical and other costs, and the injury often makes work impossible. It makes little sense to allow the wrongdoer to avoid accountability so long as they harm someone of less means.

That is where contingency fees come into play. The basic idea is that attorneys agree to bear the risk of the uncertain legal outcome and take a share of the award (settlement or verdict) only after it is received by the plaintiff. If no damages are received then the plaintiff is no worse off and the lawyer bears the loss of time and expenses paid up to that point. Overall, it is a common sense solution to ensure that everyone has access to justice no matter what their financial situation.

New Illinois Med Mal Contingency Law

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There is a hidden danger in many hospital rooms across the country that most patients and their families do not know about: bed rails. When someone is in the hospital with a medical ailment, the assumption, of course, is that the the professional who work their and the equipment provided exist to make the patient better. No one expects to suffer an injury as a result of staying in the facility.

Of course all cases of medical malpractice involve just that: a patient suffering more harm because of the conduct of medical professionals. That harm can result not only from the actions of the medical staff but also from the equipment that they use. That includes bed rails–the metal bars placed on the side of hospital beds presumably to prevent patients from rolling out and falling.

Hidden Dangers

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As most readers know, Medicare is the federal insurance program for seniors. Considering that seniors disproportionately require medical care (after all, health deteriorates in old age), many hospitals rely significantly on Medicare payments for their financial well-being. It is for this reason that Medicare officials have a serious role to play in ensuring sufficient safety standards to maximize patient safety and minimize medical errors. Medicare rules can designate requirements for participation in the program, if hospitals do not meet those requirements, then the facility may not be able to receive Medicare payments. For most faciltiies that is a death knell.

Patient safety advocates often work with the Centers for Medicare and Medicaid Services (CMS) on just this front–ensuring decent quality of care rules are set and enforced. Also, however, those advocates work on basic issues of access to care provided by CMS. This often leads to tension, and sometimes even legal action, between those advocates and CMS. We discussed a recent high-profile example of this last week.

That case involved access to certain at-home services for those on Medicare with chronic conditions. The central issue in that dispute was applicability of a “improvement” requirement for access to those at-home services. Patient safety advocates argued that the requirement that a patient have the potential to improve (instead of just maintain their current level of health) acted to unfairly and illegally deny them proper benefits. Recently, a settlement in that case was reached which will, according to those familiar with the issue, open access to at-home services for those currently on Medicare with chronic conditions. Literally thousands might now have access to services that they otherwise likely would not be able to afford. This will have significant impacts on their quality of life.

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One of the first questions often asked of our Chicago personal injury attorneys is: “Do I still have time to file my claim?”

It goes without saying that an individual can’t wait around indefinitely deciding whether or not to file a personal injury claim. More specifically, Illinois has a statute of limitations that establishes concretely the available period of time in which a person may file a medical malpractice lawsuit.

The relevant law essentially says that, in the normal course of events, an individual must bring the suit against his or her health care professional, hospital, or health care institution within two years of the period of time when he or she knew, or should have known, about the injury. Moreover, even with the leeway allowing time after the two years to discover the injury, the general rule is that, no matter what, the lawsuit may not be brought more than four years after the event that triggered the injury.

Tolling of a Medical Malpractice Statute of Limitations May Occur During Infancy, Mental Incompetency, or Imprisonment.

The basic premise of exceptions to the medical malpractice statute of limitations is to protect injured parties who have a valid claim, from not being able to file suit against the person or persons who caused their injury.

For minors, the law is similar. If the injured person is under the age of 18 at the time of the accident or occurrence, a period of eight years following the injury is allocated, in which a claimant may file suit. If the individual is 18, the four-year period for normal circumstances applies.

However there’s one more significant provision of the law: “If the person entitled to bring an action. . . is, at the time the cause of action accrued, under a legal disability other than being under the age of 18 years, then the period of limitations does not begin to run until the disability is removed.”

But what does that mean?

To date, the Illinois Supreme Court has not addressed the issue of “legal disability” as provided in the statute governing limitations on medical malpractice claims. However, a number of court cases in lower Illinois courts have given shape to the issue.

In order for imprisonment to stall the clock on for the imprisonment exception, the occurrence causing the injury must have accrued at the same time the person was imprisoned on a criminal charge. This means that if the injury happened while a person was in prison, or the injury happened to the child of a prisoner, the statute of limitations is suspended until the “disability is cured,” – or the prisoner is released.

Then again, the Illinois legislature wouldn’t have wanted to encourage crime for the purpose of allowing people to have a longer period of time to bring a lawsuit, so subsequent courts have found that the limitations period will not be deferred if the person entitled to bring suit was not incarcerated at the time of the alleged malpractice.

But what about the other conditions that allow tolling of the statute of limitations?
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