Vested Interest - Tort Briefs - October 2006 Issue

Judge Returns Award for Acquaintance Rape

A Cook County Circuit judge returned an award for a rape victim against the acquaintance who sexually assaulted her. The lawsuit, one of the first to be filed under the Illinois Gender Violence Act, was brought by a Chicago area college student against her classmate for a sexual assault that took place in their dormitory. The plaintiff was awarded costs including past and future treatment expenses and lost wages and earnings. In addition, the judgment included an award for emotional distress and punitive damages.

Appellate Decision in Lead Poisoning Keeps Kids in Court

The fourth district appellate court ruled that 4-year-old twin are entitled to their day in court. The appellate court reversed the trial court’s grant of summary judgment to the landlord. The court ruled the children presented evidence of violation of the federal lead paint prevention statute and regulations because the landlord failed to give lead paint disclosure. This is the first Illinois appellate decision to apply the federal law.

Jury Returns Verdict Against Knox College in Student Death

A Knox County jury returned a verdict for the family of a female Knox College student who was killed by a fellow student. The female student was attacked in the student union twice over a span of up to twenty minutes. The attacks took place in a glass-enclosed staircase designed for security purposes. When illuminated properly, the staircase will provide natural surveillance, which has the benefit of allowing people to see what is happening inside and also deterring crime. On the evening of the attack, the staircase was equipped with twenty lights, and as many as fifteen lights were out, either burned out or turned off. As a consequence, the stairway was dark. The jury returned a verdict against Knox College for its failure to provide a safe campus.

Hit and Run Yields Medical Malpractice

A plaintiff who was hit by a truck was later the victim of medical malpractice by his treating physician. Having developed back pain after the accident, plaintiff was treated by physician for over a year, undergoing two-level laminectomy. He became worse post-op, eventually developing a painful, progressively disabling condition called adhesive arachnoiditis. Settlement was reached with the trucking company only to be alerted to the malpractice by treating physician that contributed to plaintiff’s worsening condition. Plaintiff later recovered from the treating physician and the hospital where the surgeries were performed.

Danville Jury Returns Wrongful Death Verdict

A jury in Danville returned a plaintiff’s verdict for the wrongful death of a special needs adult. In addition to an in limine order, the judge applied Arthur v. Catour to medical benefits, allowing the plaintiff to introduce medical bills and denying the defendant the ability to mention Medicare or Medicaid discounts. The case also involved complicated proximate cause issues.

Altered Records in Nursing Home Negligence

A settlement was reached with the nursing home where a 71-year-old man who was admitted for rehabilitative care for urinary tract infections died of sepsis. His family could no longer care for him, and he was abusive and partially paralyzed. He had previously suffered a stroke that left him paralyzed on his left side with left leg external rotation, had a catheter for ongoing urinary tract infections, suffered from post obstructive uropathy, had a decubitus ulter, and was in the early stages of dementia with depression. He was then admitted to the nursing home as a full-time resident. Nursing home staff manufactured his records, making it appear as if they were examining him daily and providing tremendous care, when in fact the opposite was true.

Award Returned After Truck Driver Burned to Death

An award was returned to the family of a 57-year-old semi truck driver who died when another semi crossed the highway median and collided with his truck hauling a tanker full of gasoline. The impact caused the vehicles to catch fire instantly, slowly burning the man to death while he remained inside his vehicle. Photographs secured at the scene depicted him struggling to escape from the burning vehicle. An eyewitness confirmed the man was alive and conscious for at least six minutes while he was slowly being burned alive.

Appellate Court Affirms Jury in Ford Explorer Case

In Buell-Wilson v. Ford Motor Company, a California Appellate Court affirmed a jury’s finding that the Ford Explorer was defectively unstable, and that Ford failed to warn the consumer about the instability of the Explorer. The jury verdict was reduced by the appellate court. One of Ford’s defenses has been the “middle of the pack” argument. Ford introduces statistical evidence that the rollover rate of the Explorer is no better nor worse than other SUVs. In this case, the trial court rejected this type of statistical evidence and the appellate court agreed. The Court found that a manufacturer cannot defend a product liability action with evidence it met its industry’s customs or standards on safety, not even to show a “risk/benefit analysis.” Moreover, compliance with industry standards was not even relevant to the issue of punitive damages.

Police Officer Held Hostage Reaches Settlement with Insurer

Plaintiff police officer responded to a call for assistance at defendant’s home that someone was unlawfully conducting surveillance. Officer assured defendant that everything was ok and the police would patrol the area. The officer left to complete his paperwork and returned later to obtain additional information from defendant. While the officer was sitting in his vehicle, defendant pulled a semi-automatic handgun, proceeded to hold the plaintiff hostage for an extended period of time, chambered a bullet in the weapon, and repeatedly threatened to kill the officer. After other officers arrived, defendant eventually relinquished possession of the weapon. Defendant’s homeowner’s insurance policy, Allstate, initially denied coverage on three reasons: late notice, intentional act exclusion and lack of bodily injury. The case settled shortly after a judge ruled the homeowner’s policy applied.

University Approves Settlement Following Death after Kidney Donation

A settlement was reached with the University of Illinois Hospital following an undiagnosed peritonitis secondary to bowel perforation. The 18-year-old male died thirteen days after donating a kidney to his older brother who had been on dialysis for 17 years.

Jury Verdict Against Surgeon for Resident’s Error

Jury returned a verdict in a wrongful death case against a thoracic surgeon at Mt. Sinai Hospital who turned over surgery of a catheter placement for dialysis to a resident. The resident perforated the subclavian artery, and the man bled to death before the perforation was discovered later in ICU.

Refusal to Seal Malpractice Suit Praised

Patient rights advocates are lauding a Pennsylvania judge’s recent refusal to seal a medical malpractice settlement and urging jurists statewide to take the same stance. The decision bucked the standard practice within the legal community of allowing settlements of lawsuits to be filed in secret. A spokesman for The Committee For Justice For All, a non-profit group that advocates for plaintiff’s rights in civil litigation, said in medical cases, the practice puts the public at risk by shielding sub-par physicians from public disclosure of their mistakes. (ATLA Law News Digest – September 14, 2006)

Verdict for Failure to Properly Treat Breast Cancer

Jury returned a plaintiff verdict for failure to get her informed consent to not do an axillary dissection, a procedure to remove lymph nodes in the armpit and subject the nodes to a pathological analysis to determine if cancer had spread to the lymph nodes. Defendant contended that doing an axillary dissection for this type of breast cancer was controversial. Plaintiff alleged that doing an axillary dissection was not controversial, but if the defendant believed this to be true, he failed to tell plaintiff. Jury ruled against plaintiff on the claim that defendant negligently failed to do the axillary dissection.