Chicago Accident Law Blog

July 8, 2012

Illinois Amends Abuse Reporting Act

In the wake of the conviction of Jerry Sandusky for sexual abusing minors, Illinois has amended The Abused and Neglected Child Reporting Act, 325 ILCS 5/4. The amendment which became effective June 27, 2012, adds: personnel of institutions of higher education and director or staff of athletic program, to the extensive list of people who are mandatory reporters of knowledge of abuse or neglect of a child.

The law-325 ILCS 5/4-has for years covered physicians, residents, nurses, dentists, chiropractors, EMTs, crisis line personnel, nursery school personnel, teachers, educational personnel (which did not until recently include “institutions of higher education”), members of school board, social workers, law enforcement officers, psychologists, probation officers, foster parents, truant officers, and personnel at various state agencies. They all have a duty when “having reasonable cause to believe a child known to them in their professional or official capacity may be an abused child or neglected child” to “immediately report or cause a report to be made to the Department” (Dept. of Children and Family Services)325 ILCS 5/4. Failure to report may well be the evidence to hold the institution of higher education or athletic program financially accountable when they fail to insure their personnel are aware of and do report suspected abuse of children.

The penalties for failing to report or filing a false report range from a Class A misdemeanor to a Class 3 felony. The thrust of the recent amendment of the Act and in including “personnel of institutions of higher education” and “director or staff of..athletic program” is to address precisely the situation that occurred at Penn State University where numerous members of the athletic department and many administrators including the president of the university were aware of reports of childhood sexual abuse and did nothing about it. Neither the Sandusky saga nor Penn State legal problems will go away soon. It is difficult for many of us to imagine grown men becoming aware of a pattern of sexual abuse of young boys by a university coach, and not stopping it immediately and clearly reporting the criminal behavior. At Penn State the sanctity of their football program and the money it generates trumped the natural tendency of grown men to protect a young boy from a sexual predator like Sandusky. Hopefully this amendment may save a child in Illinois from undergoing what Sandusky’s victims endured!

May 1, 2012

Second Opinions-Personal Injury Cases

by Edmund Scanlan

People injured in accidents in Illinois frequently hire an attorney recommended by a friend or who advertises on TV. The lawyer retained will sometimes have little or no jury trial experience-this question should always be asked before retaining the attorney. Oftentimes the client becomes unhappy with the lawyer-lack of communication, attorney lacks the required experience, lawyer referring case out to another lawyer, and many more. Whatever the reason you are entitled to consult with another attorney for a second opinion. I have successfully represented injured victims and their families in personal injury and wrongful death lawsuits in Illinois state courts and federal courts throughout the United States for over 30 years.

On the occasions that I have been contacted for a second opinion the most common questions posed are: Is it possible to change lawyers?-the answer is YES, What will it cost to change lawyers?-the answer is often NOTHING, and Will it hurt my ability to collect full compensation?-the answer normally is NO. Remember that if you suffered injuries as a result of the fault of another you will only get one opportunity to obtain full and fair compensation and unless you have a mutual relationship of trust and respect with your lawyer it is unlikely that your goals will be achieved. It is a fundamental right of every client to discharge his/her attorney and hire another attorney and this decision must be respected by the discharged attorney.

All cases present unique factual and legal issues and we offer free consultation to discuss your case. I take pride in guaranteeing that I will be present with you at all times during the lawsuit from initial consultation, depositions, pretrial conferences, the jury trial, and any appeals that may follow. You will not be referred to another lawyer or firm nor will a young associate handle your case. I remain with my clients all the way through the litigation process. This is important because I have numerous significant verdicts for my clients in personal injury and wrongful death actions including many multi million dollar verdicts. The insurance companies and their lawyers know this-and this significantly increases your opportunity to receive full compensation. Should you so choose feel free to contact Edmund Scanlan toll free at 877-494-1309 for a free telephone or office consultation.

March 28, 2012

Illinois Sexual Abuse Statute of Limitations

by Edmund Scanlan

Illinois sexual abuse lawyers representing clients who were abused when they were children are confronted with four different versions of 735 ILCS 5/13-202.2. A careful analysis of the four distinct versions of the statute is essential in determining whether the claim is viable or fails due to the statute of limitation and/or the statute of repose.

The 1991 version (effective 1-1-91) of 735 ILCS 5/13-202.2 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 an injury was caused by the childhood sexual abuse. The statute of repose in the statute provided that : “…but in no event may an action for personal injury based on childhood sexual abuse be commenced more than 12 years after the date on which the person abuse attains the age of 18 years.”

The Illinois Appellate Court in Wisniewski v. Dioceses of Belleville, 406 Ill. App. 3d 1119, 1150, 943 N.E. 2d 43, 69 (2011), stated: “The difference between a statute of limitations and a statute of repose is that a statute of limitations governs the time within which lawsuits may be commenced after a cause of action has accrued, while a statute of repose extinguishes the action after a fixed period of time, regardless of when the action accrued. “The effect of the 1991 version of the statute was to “bar anyone over the age of 30 from bringing an action for personal injury based on childhood sexual abuse.” Doe v. Diocese of Dallas, 243 Ill. 2d 393, 408, 917 N.E. 2d 475, 484 (2009).

March 16, 2012

Traumatic Brain Injury-Release Signed-Mutual Mistake of Fact

by Edmund Scanlan

Recently I settled an Illinois traumatic brain injury lawsuit immediately before trial for $800,000. This case was complicated by the fact that the 19 year old male passenger in a car struck by a truck pulling off a stop sign actually signed a release settling his claim with the claims adjustor for $3,250 a few weeks after the accident. About nine months later the young man’s behavior changed radically and he was ultimately admitted to a mental health center with a diagnosis of major depression, and he has and will remain in an inpatient facility for the rest of his life. Suit was filed shortly after his family suspected that he may have suffered a brain injury in the accident, but that the brain injury did not manifest itself until several months following the accident. Defendants filed motion to dismiss on the basis of the release, which was initially granted, but case was transferred to another judge who ruled that a factual issue remained whether there was a mutual mistake of fact.

The main issue in this case was whether there was a mutual mistake of fact at the time the release was signed. I deposed the claims adjustor who testified that she did not contemplate a brain injury at the time of settlement and that her analysis only took into account that the plaintiff had twelve stitches to his head in the accident. The plaintiff also testified that he only felt he had a cut to his head in the accident at the time he signed the release. Four years after the accident a brain injury specialist diagnosed him as having a traumatic brain injury. He testified convincingly that plaintiff was not suffering from depression or schizophrenia, but rather had sustained a traumatic brain injury in the auto accident.

A few months before trial was scheduled to begin I filed a motion for partial summary judgment alleging that there was a mutual mistake of fact that voided the release. In Scherer v. Ravenswood Hospital, 70 Ill. App. 3d 939, 947, 388 N.E. 2d 1268, 1274 (1979) the court stated: “Where…the evidence reveals an injury involving such pervasive damage as permanent mental retardation, resulting from cerebral dysfunction; the settlement is in an amount significantly disparate to the seriousness of the injury; and the injury is an unanticipated, extraordinary complication, then a mutual mistake of fact has been clearly and convincingly proven which, if allowed to stand, will result in an unconscionable hardship to plaintiff.”

March 4, 2012

Online Prescriptions Are Becoming A Public Health Threat

by Edmund Scanlan

Purchasing prescription drugs over the internet without a valid prescription is shockingly simple. An internet connection, a credit card and basic Google skills are all you need to have prescription drugs delivered to your front door.

The National Association of Boards of Pharmacy (NABP) issued a rare “public health alert” on July 28, 2011. Based on a recent study the NABP found that 96 percent of 8,000 rogue websites analyzed continue to operate out of compliance with U.S. pharmacy laws. In their alert the NABP warned: “The fake online pharmacy crisis has reached an epidemic level, they prey on prescription drug abusers, and the most vulnerable members of society…” Most of these sites will sell prescription drugs without a valid prescription. The National Center on Addiction and Substance Abuse (CAPA) at Colombia University in 2006 found that 9 out of 10 websites selling prescription drugs do not require a prescription.

According to research conducted by the Partnership for a Drugfree.org found that 1 in 6 Americans purchase prescription drugs via the internet without a valid prescription. They also found that from 2000 to 2007 states with the fastest growth of Internet access also had the largest jump in hospital admissions for treatment of prescription drug abuse. The Journal of Health Affairs in May 2011 suggested that the growth of high speed internet access has fueled prescription drug abuse.

February 13, 2012

Illinois Wrongful Death – “In-Concert Liability”?

by Edmund Scanlan

A tragic accident on Interstate 290 in Addison, Illinois occurred early Saturday morning February, 11, 2012, when a 32 year old intoxicated man, leaving a work-related event, drove his car into a stopped squad car that had been waiting for a tow truck as a result of a previous collision.. A 42 year old man in the squad car was killed in the crash and the state trooper was injured.

The families of the victims of these tragedies are all too often left with only the amount of money that can be recovered under the intoxicated motorist’s insurance policy. This can be as low as $20,000 per occurrence in Illinois and it rarely exceeds $300,000. Illinois wrongful death lawyers need to be aggressive in exploring all potential areas of recovery for the family in these tragic circumstances.

Illinois accident attorneys seeking to recover damages in addition to the insurance coverage on the intoxicated motorists vehicle can look to see (1) if Dram Shop Act (235 ILCS 5/6-21) liability is present-intoxicated motorist leaving tavern where he became intoxicated causes crash, or (2) whether “in-concert” liability will attach.

February 12, 2012

Keeping Illinois DePuy Hip Implant Lawsuits in State Court

by Edmund Scanlan

Illinois attorneys representing clients who have had recalled DePuy hip prosthesis implanted, should be aware that these lawsuits can be kept in the state courts. Care must be taken in drafting the complaint and attention should be paid to federal civil procedural deadlines regarding remanding a case back to the state court system.

First, the DePuy ASR XL Hip Acetabular System and the ASR Hip Replacement System that were recalled by DePuy Orthopedics in August 2010, were distributed by Premier Orthopedic Sales, Inc., an Illinois corporation (See blog of April 5, 2011). Premier needs to be joined as a defendant along with DePuy Orthopedics, Inc., an Indiana corporation, pursuant to 735 ILCS 5/2-621.

Second, in drafting the complaint against Premier, it is essential that you allege facts that preclude removal pursuant to 735 ILCS5/2-621(c)(1), (2), or (3), specifically:

December 5, 2011

Online Malpractice Is Criminal

by Edmund Scanlan

The business of prescribing and shipping prescription medications over the internet has been used by physicians and pharmacists to ship medication out of state based solely on an online questionnaire. This can be and frequently is a violation of federal law, and if it is intentional it is a felony.

Many attorneys do not wish to get involved in cases where patients accidentally or intentionally overdose on these medications. There are several reasons for this reluctance. First, they frequently involve drug addicts whose personal physicians would never prescribe these medications. Second, the patient, physician, and pharmacist generally all live in different states and there are significant issues as to which states’ laws apply. These case can be and I have been bringing them in the federal courts with success.

These physicians, pharmacists and pharmacies are commonly committing felonies, namely the crime of misbranding, in violation of 21 U.S.C. 353(b), 21 U.S.C. 331(a) and (k). Pursuant to 21 U.S.C. 333(a)2 it is a felony if it is done with intent to defraud or mislead. Most of the websites state that the physicians and pharmacies are licensed in your local area. Few are licensed where the prescriptions are shipped.

April 5, 2011

Illinois DePuy Hip Implant Recall Lawyers

by Edmund Scanlan

Illinois product liability lawyers need to be aware of the August 2010 recall by DePuy Orthopedics of its defective metal-on-metal hip implant systems. The two hip implant systems recalled are the: (1) ASR XL Acetabular System, and (2) ASR Hip Replacement System, which first became available in 2003.

The most common problem with the ASR hip implant systems is that its components come loose. One of the design defects of these hip implant systems is that the cup-“acetabular prosthesis”-is too shallow causing it to: (1) dislocate, and (2) to shave cobalt and chromium off the metal-on-metal system and into the bloodstream when the joint’s ball strikes against the cup’s edge-“edge loading”.

According to figures released by DePuy, 93,000 patients were implanted with these hip implants. There are current estimates that indicate that as high as 90% of patients with these hip implant systems will require revision surgery.

March 15, 2011

Online Medical and Pharmacy Malpractice

by Edmund Scanlan

Physicians who prescribe drugs over the internet without seeing the patient and the pharmacies that fill and ship the drugs have sought to evade criminal and civil liability by prescribing non controlled substances. The DEA enforces the Federal Controlled Substances Act (21 U.S.C. 80 et seq.) which explicitly prohibits the sale of controlled substances prescribed by physicians who have never seen the patient.

Non controlled prescription drugs are governed by the Food, Drug and Cosmetics Act (21 U.S.C. 301 et seq.) which does not explicitly address online prescriptions and consultations. Criminal and civil prosecutions are now being pursued against these online pharmacies and physicians who sell, ship, and prescribe non controlled prescription drugs to patients based solely on an online questionnaire and “without some sort of examination.” U.S. v. Smith, 573 F. 3d 639, 651 (8th Cir. 2009).

The legal theory behind these prosecutions is that online consultations with a physician is not the basis for a legitimate prescription, and therefore constitutes the crime of misbranding under the Food, Drug and Cosmetics Act (21 U.S.C. 353(b)(1), which is prohibited under 21 U.S.C. 331(a) and (k). The introduction or delivery into interstate commerce of a drug that is misbranded is punishable under 21 U.S.C. 333(a)(1), and as a felony under 21 U.S.C. 331(a)(2) if it is done with intent to defraud or mislead. The web pages of most online pharmacies that ship prescriptions without some sort of examination do both. Frequently neither the physician nor the pharmacy are licensed to prescibe or fill prescriptions in the state into which they are shipped.
In U.S. v. Smith, the Eighth Circuit stated: “A drug is misbranded unless dispensed upon “a prescription of a practictioner licensed by law to administer such drug.” 573 F. 3d 639, 650 (2009). The Smith court described a “prescription drug as misbranded if it dispensed other than through a valid prescription.” 573 F. 3d at 651. The Court defined “valid prescription” as “…a bona fide order-i.e. directions for the preparation and administration of a…drug for a real patient who actually needs it after some sort of examination…” 573 F. 3d at 651.
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