Vested Interest - Tort Briefs - June 2000 Issue

Illinois Supreme Court Extends Institutional Liability to HMOs

On an appeal of a motion for summary judgment, a 5-2 bipartisan majority of the Illinois Supreme Court has agreed with ITLA's amicus brief and ruled that HMOs can be held liable under institutional liability theory. Plaintiff Sheila Jones alleged that Chicago HMO assigned her daughter to Dr. Robert Jordan even though Dr. Jordan was already responsible for over 6,000 HMO patients, more than twice the number allowed by the Health Care Finance Administration. Because of the patient overload, Dr. Jordan refused to see three-month-old Shawndale even though she had a high fever and diarrhea. The refusal delayed diagnosis of Shawndales bacterial meningitis, resulting in permanent injury. The Court overruled the trial court granting of summary judgment and ordered a trial on the patient overload issue. Justice Bilandic wrote the Court€™s decision, while Justices Miller and Rathje dissented. Last September, the Court ruled that HMOs can be held liable under the apparent and implied authority doctrines. (A summary of Jones v Chicago HMO, Docket No. 86830, is available on the Illinois Supreme Court website at www.state.il.us/court/2000/86830.htm)

U.S. Supreme Court Bars State Law Auto Suits Over Failure to Design Air Bags

A 5-4 majority of the U.S. Supreme Court has ruled that federal motor vehicle safety statutes preclude lawsuits under state laws alleging negligent design in the failure to incorporate an air bag in cars. The ruling came in a case filed by Alexis Geier, who was injured when her 1987 Honda Accord struck a tree. She alleged that an air bag, in addition to her lap and shoulder belts, would have prevented some of her injuries, and that Honda was negligent in failing to include air bags in the design of the car. Justice Stephen Breyer wrote for the majority that the government standard in place at the time was not intended to mandate air bags. In dissent, Justice John Paul Stevens complained that allowing states to set higher standards would not undermine federal authority and decried the majoritys unprecedented extension of the doctrine of preemption. (Reuters, May 22, 2000)

Illinois Jury Issues $34.1 Million Verdict in Cancer Case

James Butch Hutcheson worked as a roofer at Shell Oil's Wood River refinery during the 1950s and 1960s. While removing insulation at the facility he came into contact with asbestos. Even though Shell knew as early as 1945 that asbestos was hazardous to workers, the company did not warn workers of the risks, nor did it take any steps to protect workers from asbestos, and instead actively hid data on the risks from workers. Hutcheson now has lung cancer. An Edwardsville jury hearing his claim has issued a verdict for $9.1 million in compensatories and $25 million in punitives. (AP, May 20, 2000)

New York City Appeals $41 Million Verdict, Plaintiffs Get $92 Million in Second Trial

Jason Rodriguez was 17 when he was shot twice by an off-duty police officer after he complied with a request to halt and drop his weapon. One of the bullets hit his spine, leaving him paralyzed below the waist. Rodriguez sued, claiming excessive force. Last summer, a jury issued a verdict for $41 million, which was tossed out after New York City appealed. At the second trial, the jury returned a verdict of $92 million, including $10.5 for future medical care and $75 million for future pain and suffering. New York City has vowed to appeal, again. (AP, May 18, 2000)

U.S. Supreme Court Rejects Appeal of Higher Tax Rate for Associations

In 1993, Congress changed the way professional associations pay taxes to include a 35% tax on lobbying expenses. Previously, lobbying expenses were not taxed. The American Society of Association Executives challenged the new tax. The U.S. Circuit Court for the District of Columbia ruled that the only way for associations to avoid the new tax was to split into two different organizations, one that does nothing but lobby and one that does not lobby at all. The U.S. Supreme Court has now rejected the ASAE appeal of that ruling.. The case is American Society of Association Executives v US (99-1321) (AP, May 15, 2000)

Erin Brockovich, Oregonians Defeat Tort Deforms

California legal investigator Erin Brockovich appeared in TV ads in Oregon to encourage voters to reject a tort deform initiative. The woman who was portrayed by Julia Roberts in the film named for her calls legislative efforts to run the courts crime. Measure 81, supported by medical and business groups, would have overturned Oregon Supreme Court rulings that bar the legislature from limiting jury verdicts in personal injury cases. Oregon voters rejected the proposal by a 3-1 margin in the first-ever all-mail election. (AP, May 13, 2000; AP, May 17, 2000)

Defective Seat Belt Results in $6.2 Million Verdict

Mario Roberto Castro was driving a Mazda MX-6 when he was struck by another driver. Even though he was wearing his seat belt, the belt unlatched on impact, and he was ejected from the car. He suffered severe spinal injuries and is now a paraplegic. A Florida jury concluded that he would not have sustained such severe injuries had he not been ejected, and found Mazda and belt manufacturer Takata liable for $6.2 million in damages. (PRNewswire, May 4, 2000)

Justice Heiple Announces Plans to Retire

Illinois Supreme Court Justice James Heiple has announced that he will not seek another 10-year term on the states high court. Current Republican State Senator Carl Hawkinson and Democrat Tom Kilbride are the parties nominees for Justice Heiple's seat, but some observers questioned whether they could claim a spot on the ballot if Heiple announced plans to seek retention. State law puts the party primaries in March, but justices do not have to declare for retention until June. Justice Heiple did not indicate what he plans to do after leaving the Court. (Chicago Sun-Times, May 7, 2000)

HMO Breaks Ranks Over Federal HMO Liability Law

As Congress considers legislation that could include HMO liability provisions, Kaiser Permanente has broken ranks with fellow HMOs and offered its support for limited liability. Said Kaiser CEO David Lawrence, “Some kind of right to sue is inevitable. Managed care and business groups have worked hard to block any form of managed care liability, while patients groups and Democrats are fighting for HMO accountability. Lawrence suggests that Kaiser has other priorities, and wants to put the liability issue behind them. It is very hard to have a conversation about patient safety, while the liability issue is still on the table he said. (Bloomberg, May 2, 2000)

Wisconsin Passes Health Insurance Review Measure

Wisconsin Governor Tommy Thompson has signed a bill establishing a voluntary process for independent review of any decision by a health insurer to deny care to a patient. Unlike provisions passed in many other states, including Illinois, the bill includes patients with HMOs, PPOs and even fee for service coverage. The measure does not include a right to sue the insurer over care decisions, but neither does it overturn a 1997 Wisconsin Supreme Court ruling in a bad faith insurance case (McEvoy v Group Health, 213 Wis 2d 507) that allows claims against insurers. The measure was supported by consumers and insurers alike. (AP, May 13, 2000)

Car Rental Company to Pay $5.2 Million for Tourists Death

Tosca Dieperink, visiting Miami from Holland, was traveling with her husband when they stopped for directions at a gas station in Liberty City. While her husband was talking with an attendant, thieves descended on the car, robbing Dieperink and shooting her. She died from her injuries. Days before, local police had notified the Alamo Rent-a-Car office where Dieperink obtained her car about nearby high crime areas, and urged them to warn tourists to avoid Liberty City. Indeed, 65% of robberies of Alamo customers occurred in Liberty City. A jury concluded that Alamo violated its duty to warn when it failed to notify Dieperink of the risk of crime if she and her husband traveled to Liberty City, and assessed damages at $5.2 million. (AP, May 11, 2000)

California Mulls Ban on Sexual Orientation Discrimination in Jury Service

Last January, a California appeals court ruled that gays and lesbians have the same rights as racial minorities and women to serve on juries. The California Assembly has now passed a bill to codify that ruling. The bill now moves to the California State Senate. Federal courts have ruled only that the equal protection clause of the 14th Amendment ensures the rights of women and minorities to serve. Justice William Bedworth, author of the appellate ruling, noted, It cannot seriously be argued in this era of don't ask, don't tell that homosexuals do not have a common perspective. (Reuters, May 4, 2000)

U.S. Supreme Court: Federal Right-to-Sue for Rape is Unconstitutional

Christy Brzonkala was raped in her dorm room by two members of the Virginia Tech football team. She filed criminal charges against the men, and also brought a civil suit citing the 1994 Violence Against Women Act. Even though 36 states filed friend of the court briefs in her favor, a 5-4 majority of the U.S. Supreme Court ruled that the federal law improperly impinged on states authority. For the majority, Chief Justice Rehnquist found that the law relied on an overly broad interpretation of the interstate commerce clause. Dissenters Souter, Stevens, Ginsburg and Breyer pointed instead to the mountain of data assembled by Congress, here showing the effects of violence against women on interstate commerce. (AP, May 15, 2000)

Illinois Hospital Pays $7 Million for Misreading Pap Test

Joann O’Kane had a routine pap smear in 1992 that, according to Osteopathic Hospital of Olympia Fields, was normal. Three years later, when she was pregnant, her doctor diagnosed her with advanced cervical cancer. She underwent chemotherapy, miscarried at the fifth month of pregnancy, and died in 1996. A subsequent review of her 1992 pap test revealed that the reading was inaccurate. Her husband has agreed to settle his claim against the hospital for $7 million. (Chicago Sun-Times, May 9, 2000)

Higher Standards Mean Fewer New Lawyers

The Attorney Registration and Disciplinary Commission has announced that 433 new lawyers were sworn in on the first Thursday in May. Ten years ago, there were typically over 500 new lawyers sworn in May. The ARDC has raised the minimum passing score on the bar exam, and the pass rate has fallen from 95% to 69% for last Februarys exam. The percentage of recent Chicago-area law school graduates who are women or minorities continues to grow; in 2000, 43% were women, and 19% were minorities. (Chicago Sun-Times, May 8, 2000)

Criminal Court Includes Victim Compensation in Sentence

Phillip Semprini was driving home from school when he was struck by Patrick Duggan, an off-duty police officer who was legally drunk, at 3:45 am. Semprini's head injuries left him in a coma for three weeks. All told, he was hospitalized for two months, and still requires rehabilitative treatments. DuPage County Criminal Court Judge Perry Thompson sentenced Duggan to six months of periodic imprisonment. Part of the plea agreement, though, requires Duggan to pay Semprini $450,000 to cover past medical bills.. No word on whether Semprini will pursue a civil claim against Duggan. (Chicago Sun-Times, May 3, 2000)

Florida Jury Issues $5 Million Verdict in Dropped Cargo Case

Jeannetta Jordan was driving through Georgia with her friend Sherika Nelson on their way from Florida to South Carolina State University. Ahead of them was a truck carrying rolls of chain link fence. One roll fell off the truck, and Jordan’s car struck it, causing her car to leave the highway and flip over. Both women were killed. Nelsons parents reached a confidential settlement, but Jordans parents demanded a trial in their case against Southeastern Wire. A Jacksonville, Florida jury concluded that the company should pay each of them $2,475,000 in damages. The Jordans pledged to use the verdict to support tougher truck safety laws. (AP, April 27, 2000)