Chicago Accident Law Blog

September 11, 2020

Pleading Covid-19 Wrongful Death Suits against Nursing Homes in Illinois

There are many challenges in successfully pleading and prosecuting wrongful death lawsuits as a result of Covid-19 in Illinois. The Nursing Home Care Act, 210 ILCS 45/3-602 et seq., does not permit a wrongful death action, for the benefit of the decedent’s next of kin to be commenced pursuant to the terms the Nursing Home Care Act (hereinafter “the Act”) 210 ILCS 45/3-603. The Appellate court held in Pietrzk v. Oak Lawn Pavillion that: “The Nursing Home Care Act seeks to compensate a resident not an heir of resident.” 329 Ill. App. 3d 1043, 1050 (2002). Either an administrator, executor, or special administrator cannot bring an action under the express terms of the Act for the benefit of the next of kin (heirs).

Nursing Homes in Illinois are classified as “skilled nursing and intermediate care facilities pursuant to 45 ILCS 1-113 and 77 Ill. Admin. Code Ch. 1 sec. 300.330. Nursing homes are subject to the requirements of the Act and regulations promulgated by the Illinois Department of Public Health (hereinafter “IDPH”) pursuant to the terms of the Act. These regulations can be found at 77 Ill. Admin. Code sec. 300.100 et seq. Violations of the statutory provisions of the Act and the regulations developed by the IDPH should be plead in a complaint as specific allegations of negligence. These same violations of the Act and the regulations set forth by IDPH can also be utilized in Ill. Pattern Jury Instruction Civil No. 60.01 which informs the jury that if it decides that the defendant violated the statute or regulations on the occasion in question, then it may consider that fact together with all the other facts in evidence in determining whether the defendant was negligent.

Governor Pritzker issued Executive Order 2020-19 on April 1, 2020, which immunized health care facilities which includes nursing homes from any civil liability for injury or death associated with providing health care services to patients infected with Covid-19 unless it involved gross negligence or wilful misconduct. On May 13, 2020, Governor Pritzker issued Executive Order 2020-37 which amended Ex. Order 2020-19. This amendment extended the qualified immunity granted to health care facilities, but only granted the immunity if the health care facility was “…providing health care consistent with the current guidance by IDPH.” This is a significant amendment because only a nursing home that is providing care to residents consistent with IDPH guidelines are immunized.

October 16, 2018

Higher Cancer Risks Due to Ethyl Oxide Emissions-Willowbrook

by Edmund Scanlan

Sterigenics in west suburban Willowbrook, Illinois uses Ethyl Oxide to sterilize medical equipment and other products. Residents of Du Page and Cook counties near Willowbrook are at a higher risk of cancers as a result of decades long exposure to Ethyl Oxide. Sterigenics has been emitting Ethyl Oxide into the air since 1984. The Agency for Toxic Substances and Disease Registry (ATSDR) evaluated the potential health risks from emissions of Ethyl Oxide, a chemical the U.S.E.P.A. has found to be “carcinogenic to humans.” The report released in August 2018 concluded “an elevated cancer risks exist for residents and off site workers in the Willowbrook community.”

The 2014 National Air Toxics Assessment shows that Willowbrook has a cancer risk of 300 in a million; higher than anywhere in Chicago area and 10 times higher than vast majority of census tracts in the U.S., where cancer risks are 30 in a million. The health risks of Ethyl Oxide Exposure are significant. U.S. National Cancer Institute report finds “exposure is highly irritating to the eyes, skin and respiratory tract that induces nausea and vomiting and causes central nervous system depression.” Chronic Ethyl Oxide exposure is associated with increased risks of: 1)Leukemia; 2) Non-Hodgkins Lymphoma; 3) Breast Cancer; 4) Stomach Cancer and 5) Pancreatic Cancer

Residents of Willowbrook area unknowingly lived with a higher cancer risk due to Ethyl Oxide emissions for over 30 years. In selecting an attorney to represent you in a toxic tort case you should select an attorney with experience in trying toxic tort cases. Several years ago I was the lead attorney in a lawsuit involving trichloroethylene (TCE) that was tried in Du Page County. A copy of the verdict report reveals that the jury awarded $2,368,500. While this case involved diminished property values, several companion cases were filed by my firm in federal court which involved personal injuries as a result of the higher risk of cancer due to exposure to TCE.

May 9, 2018

Arbitration in Illinois Nursing Home Care Contracts

by Edmund Scanlan

In Carter v. SSC Odin Operating, 237 Ill. 2d 30 (2010), the Illinois Supreme Court held that the Federal Arbitration Act, 9 U.S.C. 2, preempted the the anti waiver provisions of the Nursing Home Care Act, 210 ILCS 45/3-606 and 3-607. This meant that valid arbitration agreements could not be overridden by Illinois State law.

The Illinois Supreme Court clarified their 2010 decision in Carter v. SSC Odin Operating, 2012 IL 113204, 976 N.E. 2d 344 (2012). In this decision the court held that arbitration agreements contained in contracts for nursing home care signed by a resident do not apply in wrongful death actions. The Supreme Court stated:

A survival action allows for recovery of damages for injuries sustained by the deceased up to the time of death;

January 7, 2016

Sexual Abuse Statute of Limitations in Illinois

by Edmund Scanlan

A lawsuit alleging childhood sexual abuse was filed yesterday in Du Page County, Illinois against Bill Gothard and the Institute of Basic Life Principles that he founded in 1961. The lawsuit filed by 10 women includes allegations of rape, molestation and sexual harassment. The allegations date back to at least 1992.

The statute of limitations will surely be an issue. For sexual abuse that occurred as early as 1992, the Illinois statute of limitations in effect for childhood sexual abuse is 735 ILCS 5/13-202.2 This 1991 version of the statute of limitations provides that an action for childhood sexual abuse must be commenced within 2 years of reaching 18 or 2 years from the date the person abused discovers the act of childhood sexual abuse occurred and that injury was caused by the childhood sexual abuse….“but in no event may an action for personal injury based on childhood sexual abuse be commenced more than 12 years after the person abused reaches the age of 18.” 735 ILCS 5/13-202.2

This means that if a person abused reaches the age of 30 prior to January 1, 1994, the 12 year statute of repose forever bars their claim. Illinois has amended the statute of limitations for childhood sexual abuse in 1994, 2003, and 2011. The 2011 version, which is currently in effect, increased the time to bring the action to 20 years after the person abused reaches 18. My blog of March 28, 2012 sets forth in detail the various statute of limitations deadlines of the 1991, 1994, 2003 and 2011 versions of the statute of limitations for childhood sexual abuse in Illinois.

April 24, 2014

Illinois Fracking Lawsuits

by Edmund Scanlan

The Hydraulic Fracturing Regulatory Act, 225 ILCS 732/1-1 et. seq. became law in Illinois on June 17, 2013. Environmentalists and landowners above the “New Albany Shale” initially hailed the law, but now that the Illinois Dept. of Natural Resources has issued its draft rules, many of the law’s core provisions have been gutted. Specifically, The Act required compliance with “applicable federal, state and local laws.” This language has been omitted from the draft rules.

On April 22, 2014, in Dallas County, Texas, a jury returned a $2,925,000. verdict against Aruba Petroleum in favor of Bob and Lisa Parr who owned land that was effected by their fracking operations (case no. CC-11-01650-E). This case was significant because the defendant argued they were in compliance with the law. The verdict included compensation for loss of market value to their home and 40 acre property, as well as damages for physical pain and suffering and mental anguish. This result was obtained not through any state or federal statutory scheme, but rather the common law torts of trespass and nuisance. This was the first verdict in the U.S. regarding damages from fracking.

I have and currently am using these same common law torts, trespass and nuisance against corporations who have polluted the well water, land and air in Illinois. Fracking is just beginning in Illinois, particularly in the southern Illinois New Albany Shale. Various environmental problems are just beginning to emerge. Thoughtful people can disagree whether the risks of fracking outweigh the benefits, however, if it is your land, air, water, and family that are being negatively impacted, you may wish to know what legal rights you may have. Should you wish to discuss if you may have a legal remedy against an entity engaged in fracking that may be damaging to your property, your health, and quality of life, feel free to contact Edmund Scanlan toll free at 877-494-1309.

December 11, 2013

Laser Guided Vehicle Accidents

by Edmund Scanlan

Laser Guided Vehicles (LGV), sometimes referred to as Automatic Guided Vehicles (AGV) are being used increasingly in manufacturing facilities as a replacement for human operated forklifts. While there are benefits in terms of efficiency there have been tragic accidents that are becoming more widespread due to increased usage of the LTV’s.

I am currently representing an individual who was seriously injured when the LGV operating in a warehouse where he was employed failed to stop in time thus causing him severe crushing injuries. Anyone considering representing a client in a LGV accident must be familiar with the American National Standard Institute’s Safety Standard For Driverless, Automatic Guided Industrial Vehicles (AGV) which also applies to LGVs, which is merely a different name for the same technology. These standards are put forth under the copyright of the “Industrial Truck Standards Development Foundation.”

ANSI B 65.5 – 2012, Sec. 4.1.2 states: “Automated guided industrial vehicles can cause injury or damage if improperly used or maintained and if the potential risks specified in user training associated with hazard zones and restricted areas are not respected by persons within or adjacent to these areas.” The risk associated with LGV use is clearly understood and addressed in these standards.

April 18, 2013

Physicians and Administrators Conspire at Sacred Heart Hospital

by Edmund Scanlan

As an Illinois medical malpractice lawyer it is difficult to fathom a scenario where hospital administrators and physicians conspire to unnecessarily intubate patients and while intubated to overmedicate them so as to require a tracheotomy. This is precisely what transpired at Sacred Heart Hospital on Chicago’s west side according to federal charges brought this week against the hospital owner, an administrator, and four affiliated physicians.

According to Crain’s Chicago Business, 96.7% of Sacred heart’s revenue comes from Medicare and Medicaid. Sacred Heart’s reimbursement for tracheotomies was $160,000. per patient for a 28 day hospital stay. Some of the patient undergoing unnecessary procedures died or had serious medical complications. This is the worst form of medical malpractice.

Should you or a family member have been a patient at Sacred Heart Hospital and suspect unnecessary surgeries or treatment for you or a family member, feel free to call Edmund Scanlan 312-422-0343 for a free consulatation.

March 9, 2013

Table Saw Injury – Product Liability Lawsuits

by Edmund Scanlan

Lawyers representing victims who have been injured using table saws must be aware of the flesh-detection technology available that could prevent most of these injuries. The Consumer Product Safety Commission estimates at least 60,000 injuries and 3,000 amputations per year stem from use of table saws in the U.S. Dr. Stephen Gass, the inventor of the flesh-detection technology, called Saw Stop, has testified as an expert that this technology should have been incorporated in any table saw manufactured after 2004. The Saw Stop technology detects contact between human flesh and a saw blade so that accidents that might otherwise have resulted in a severe laceration or amputation will cause only a minor cut or scratch.

Lawsuits claiming that the table saws are unreasonably dangerous generally revolve around the theory that “a feasible alternative design” existed in the form of a saw incorporating Saw Stop technology. Dr. Gass and others have testified that it is technically, practically and economically feasible to have the Saw Stop technology incorporated into all table saws.

Illinois law requires plaintiff in a product liability lawsuit alleging defective design under the risk-utility method to present “evidence of an alternative design that is economical, practical and effective” Mikolajczk v. Ford Motor Co., 231 Ill. 2d 516, 526 (2008). The Illinois Supreme Court has held that “a plaintiff may demonstrate that a product is unreasonably dangerous because of a design defect by presenting evidence of an alternative design that would have prevented injury and was feasible in terms of cost, practicality and technological possibility” Hanson v. Baxter Healthcare, 198 Ill. 2d 420, 436 (2002). According to testimony from Saw Stop’s inventor, adding the Saw Stop technology onto existing models of table saws would cost $150 per table saw.

January 6, 2013

Failure to Disclose or Report Past Sexual Abuse

by Edmund Scanlan

Fixing liability on prior employers of known sexual abusers who withhold information of that abuse to subsequent employers where employee proceeds to sexually abuse additional minors has never been addressed by the Illinois high court. The Illinois Supreme Court in Doe-3 v. Mc Lean County Dist. 5, 973 N.E. 2d 880 (2012) addressed this issue head on. In Doe-3, the trail court dismissed action by two minor sexual abuse victims against prior school district employer of pedophile that alleged failure to disclose to subsequent employer of pedophile that he had been disciplined for “sexual harassment, sexual grooming, and/or sexual abuse.” The trial court found that prior school district had no duty to minor sexual abuse victims. The appellate court reversed the dismissal and the high court affirmed the appellate court’s holding albeit on different grounds.

The Supreme Court acknowledged that: “In Illinois an affirmative duty to aid or protect another against an unreasonable risk of physical harm arises only in the context of a legally recognized duty.” Doe-3, 973 N.E. 2d 880, 888; Simkus v. CSX Transportation, 965 N.E. 2d 1092 (Ill. Sup. Ct. 2012); and Iseberg v. Gross, 227 Ill. 2d 78, 87-88, 879 N.E. 2d 278 (2007). The Supreme Court noted that plaintiffs had not plead any of the recognized “special relationships”. The Doe-3 court stated: “Nevertheless, we find that plaintiffs have alleged circumstances which do give rise to a duty owed by defendants in this case.” 973 N.E. 2d 880, 889.

The issue the Doe-3 court dealt with encompasses a school districts’ duty to disclose prior history of sexual abuse by one of its teachers to a subsequent school district employer of that teacher. The court began its duty analysis observing: “…every person owes a duty of ordinary care to all others to guard against injuries which naturally flow as a reasonably probable and foreseen consequence of an act, and such a duty does not depend on privity of contract, privity of interest or the proximity of relationship but extends to remote and unknown persons.” 973 N.E. 2d 880, 887-888.

December 30, 2012

Illinois De Puy Hip Replacement Statute of Limitations

by Edmund Scanlan

No Illinois court decisions currently interpret when the statute of limitations expires on De Puy Hip Replacements lawsuits, but there are decisions by both the Illinois Supreme and Appellate courts that provide guidance. Illinois products liability statute of limitations is found at 735 ILCS 5/13-213(d) which provides that: ” ...the plaintiff may bring an action within 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, of the existence of the personal injury, death…but in no event shall such action be brought more than 8 years after the date on which such personal injury, death…occurred.”

The Illinois Supreme Court has held: “...the statute starts to run when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused.” Knox v. Celotex, 88 Ill. 2d 407, 414-415, 430 N.E. 2d 976, 980 (1982). The Illinois high court has also stated that: “…an injured is not held to a standard of knowing the inherently unknowable…yet once it appear that an injury was wrongfully caused, the party may not slumber on his rights.” Nolan v. Johns-Mansville, 85 Ill. 2d 161, 171, 421 N.E. 2d 864,, 868 (1981).

On August 24, 2010, De Puy Orthopedics, Inc. instituted a recall of its ASR XL and ASR Hip Replacement Systems. These systems feature chromium and cobalt in its ball-and-socket design. In light of the Illinois decisions interpretting the “discovery rule” it appears that patients with De Puy hip replacements that have failed have 2 years from the date they noticed the failure to file suit (See Aug. 5, 2011 blog re: failures). A fair interpretation of Illinois law will lead to the conclusion that the recall of August 24, 2011, puts any person on notice at the time the failure is noticed that it was wrongfully caused by a design defect in the hip replacement system.