Tort Reform

There are groups working to influence public perception of our right to trial by jury and the right to bring a claim for money damages against an individual or business when someone suffers bodily harm.  It can be difficult to discern what is part of an honest discussion and what is nothing more than propaganda.  Reprinted below is a release from the Illinois Trial Lawyer's Association responding to one group's claim of lawsuit abuse in Illinois.

ILLINOIS' LEGAL SYSTEM PROTECTS PEOPLE

 

Springfield, IL - Big business and their front groups are once again spreading lies and making the citizens of Illinois believe there is a lawsuit crisis in our state.  Their answer to this so-called "crisis" - take away your right to receive justice and hold wrongdoers accountable.  Stripping Illinois citizens of these rights only allows big business to escape accountability for when their products or services kill or maim innocent victims.

 

Travis Akin and his group, I-LAW, are behind this latest push to take away your rights.  They have declared this Lawsuit Abuse Awareness week in an attempt to spread lies and take away the legal rights of citizens in this state.  The reform that this group is seeking would only take away your right to receive justice and to hold corporate wrongdoers accountable for their actions.

 

Reports referenced by I-LAW in promoting their Lawsuit Abuse Awareness Week paint a bleak picture for business in Illinois. However, numerous scholars have discredited the polls and studies cited by this group.  These "studies" have no methodology or academic basis for their results.  The "studies" are biased, junk research that only shows tort reform is simply a scheme by powerful corporations to avoid accountability in the courtroom and stack the deck against every day Americans.

 

"The legal system rankings that Akin's group reports are preposterous," said Peter J. Flowers, president of the Illinois Trial Lawyers Association.  "Illinois residents should not be duped by this propaganda that attempts to shield corporations from their negligence or misconduct."

 

Don't be fooled, there is no lawsuit crisis in Illinois.  Big corporations and their front groups, such as Akin's, have attacked the civil justice system, trial attorneys and those who are injured through no fault of their own, all in an effort to pad their profits and escape accountability.  When big businesses act irresponsibly - by producing unsafe products, polluting our environment or swindling their employees and shareholders - the last resort for Illinoisans to hold those businesses accountable is in our courts.  Our legal system serves as a powerful deterrent for corporations to act responsibly. 

 

Medical Malpractice Claims and Health Care Reform

As the debate over health care reform continues, some people have pushed for a reform of the civil justice system which permits injured plaintiffs to pursue claims for compensation if they are injured as the result of a doctor or nurse's mistake.  Below is an excellent article which details the very limited relationship between the cost of health care today and lawsuits brought against doctors and hospitals by injured plaintiffs.  The article was originally printed in the New York Times on August 31. I have not seen a better analysis of the issue.

Would Tort Reform Lower Costs?

By ANNE UNDERWOOD

Medical tort reform is moving to the fore of the health care debate. On Sunday in The New York Times, former Senator Bill Bradley, Democrat of New Jersey, argued that one way to gain support of both Democrats and Republicans might be to combine universal coverage with tort reform. Mr. Bradley also suggested that medical courts with special judges could be established, similar to bankruptcy or admiralty courts.

On “This Week With George Stephanopoulos,” Senators Orrin G. Hatch, Republican of Utah, and John Kerry, Democrat of Massachusetts, seemed to agree that medical malpractice lawsuits are driving up health care costs and should be limited in some way. “We’ve got to find some way of getting rid of the frivolous cases, and most of them are,” Mr. Hatch said. “And that’s doable, most definitely,” Mr. Kerry replied.

But some academics who study the system are less certain. One critic is Tom Baker, a professor of law and health sciences at the University of Pennsylvania School of Law and author of “The Medical Malpractice Myth,” who believes that making the legal system less receptive to medical malpractice lawsuits will not significantly affect the costs of medical care. He spoke with the freelance writer Anne Underwood.

Q.

A lot of people seem to have taken up the cause of tort reform. Why isn’t it included in the health care legislation pending on Capitol Hill?

A.

Because it’s a red herring. It’s become a talking point for those who want to obstruct change. But [tort reform] doesn’t accomplish the goal of bringing down costs.

Q.

Why not?

A.

As the cost of health care goes up, the medical liability component of it has stayed fairly constant. That means it’s part of the medical price inflation system, but it’s not driving it. The number of claims is small relative to actual cases of medical malpractice.

Q.

But critics of the current system say that 10 to 15 percent of medical costs are due to medical malpractice.

A.

That’s wildly exaggerated. According to the actuarial consulting firm Towers Perrin, medical malpractice tort costs were $30.4 billion in 2007, the last year for which data are available. We have a more than a $2 trillion health care system. That puts litigation costs and malpractice insurance at 1 to 1.5 percent of total medical costs. That’s a rounding error. Liability isn’t even the tail on the cost dog. It’s the hair on the end of the tail.

Q.

You said the number of claims is relatively small. Is there a way to demonstrate that?

A.

We have approximately the same number of claims today as in the late 1980s. Think about that. The cost of health care has doubled since then. The number of medical encounters between doctors and patients has gone up — and research shows a more or less constant rate of errors per hospitalizations. That means we have a declining rate of lawsuits relative to numbers of injuries.

Q.

Do you have numbers on injuries and claims?

A.

The best data on medical errors come from three major epidemiological studies on medical malpractice in the 1970s, 1980s and 1990s. Each found about one serious injury per 100 hospitalizations. There hasn’t been an epidemiological study since then, because people were really persuaded by the data and it’s also very expensive to do a study of that sort. These data were the basis of the 1999 report from the Institute of Medicine, “To Err Is Human.”

Q.

And what percent of victims make claims?

A.

Those same studies looked at the rate of claims and found that only 4 to 7 percent of those injured brought a case. That’s a small percentage. And because the actual number of injuries has gone up since those studies were done — while claims have remained steady — the rate of claims is actually going down.

Q.

So the idea that there are lots of frivolous lawsuits is . . .

A.

Ludicrous.

Q.

In those cases that are brought, are jury awards excessive?

A.

There are already caps on awards in many states. These tend to be on non-economic damages — not medical expenses or lost wages, but typically on pain and suffering. The first was in California in the 1970s. There is pretty good research on that, showing it reduced medical liability payments. These caps vary from state to state, but they’re generally set around $250,000 to $500,000.

Q.

Many people would think that a quarter-million to a half-million dollars is a lot of money for pain and suffering.

A.

When California adopted its cap in the mid-1970s, it set it at $250,000. That doesn’t mean everyone got that much. It was the maximum. But that was considered a fair amount at the time. Since then, think how much inflation has eaten into that. These caps typically don’t index for inflation.

Q.

So a patient can get reimbursed for medical costs, but they’re limited for pain and suffering.

A. They get reimbursement of medical costs in principle. But in fact, they don’t, because the lawyer has to be paid. These cases can cost $100,000 to $150,000 to bring, so the patient has to deduct that amount from any award.

Q.

Why are these cases so expensive?

A.

You need expert witnesses who must be compensated for their time, which is valuable. You need depositions, which are expensive. You have to hire investigators. You have to pay your junior staff. It’s not worth bringing a suit if the potential award is less.

Imagine you go to the emergency room with appendicitis. For whatever reason, they fail to diagnose it. Your appendix bursts, and you spend a couple weeks in the hospital. I’ve had lawyers tell me they would not take a case like that, even if it’s a slam-dunk. The damages wouldn’t be enough — medical expenses, maybe a month of lost salary, although the patient might have short-term disability insurance that would cover a large part of that. It’s not enough to justify going to court.

Q.

So you’re saying that a case has to be serious to be worth trying.

A.

The medical malpractice system only works for serious injuries. What it doesn’t work for is more moderate ones. Lawyers discourage people from bringing suits if their injuries are not serious in monetary terms — a poor person or an older person who can’t claim a lot in lost wages. That’s why obstetrician-gynecologists pay such high premiums. If you injure a baby, you’re talking about a lifetime-care injury. Gerontologists’ premiums are exceedingly low.

That’s the reason I say if people are serious about tort reform, they should improve compensation for moderate injuries. Nobody likes that idea, by the way. They say it would make the system more expensive, not less expensive. More people would bring claims. That says to me that the critics are not serious about tort reform.

Q.

But it’s not just the cost of premiums and litigation. What about the charge that it causes doctors to practice “defensive medicine,” ordering tests that are expensive and unnecessary?

A.

A 1996 study in Florida found defensive medicine costs could be as high as 5 to 7 percent. But when the same authors went back a few years later, they found that managed care had brought it down to 2.5 to 3.5 percent of the total. No one has a good handle on defensive medicine costs. Liability is supposed to change behavior, so some defensive medicine is good. Undoubtedly some of it may be unnecessary, but we don’t have a good way to separate the two.

Q.

Tell me more about the 1996 study.

A.

It was published in The Quarterly Journal of Economics by Stanford economist Daniel Kessler and Dr. Mark McClellan, who was head of the Centers for Medicare & Medicaid Services under President George W. Bush. For two types of heart disease — heart attacks and ischemic heart disease — the authors found that 5 to 7 percent of the additional costs in Florida, compared to other states with lower medical malpractice liability, could be attributed to defensive medicine. This was based on 1980s data.

Using that estimate, some politicians used to say that medical malpractice cost the system $50 billion a year. But you can’t blindly say that all diseases are the same as heart disease, and if you want a nationwide estimate, you can’t say every state is the same as Florida. Furthermore, the second study, published in 2002 in The Journal of Public Economics, found that much of the difference disappeared as managed care took hold in Florida in the 1990s.

Q.

But many doctors complain about having to practice defensive medicine.

A.

Doctors will say that. But when you dig down, you find that what’s really happening is that doctors tend to do what other doctors around them do. They go along with the prevailing standard of care in their region — which in many cases isn’t even a state, but a city or county.

Q.

If medical malpractice doesn’t explain the high costs of our health-care system, what does?

A.

A variety of things. The American population is aging. We’ve had advances in technology that are expensive. We’re also a rich nation, and the richer you get, the more money you spend on health care. And compared to other countries, we have heavy administrative costs from the private-insurance system.

Q.

If it’s not true that medical malpractice is driving the high cost of medical care in this country, why won’t the argument go away?

A.

It makes sense to people intuitively — in part, because they’ve been told it so often. And it’s a convenient argument for those who want to derail the process. Maybe it’s a deep political game. Maybe they’re raising it to say, we’ll back off tort reform if you back off the public option.

Q.

What about former Senator Bill Bradley’s idea that medical courts with special judges should be established?

A.

Mr. Bradley has been backing tort reform for as long as I can remember, so this is hardly a compromise for him. I’m not saying medical courts would be a bad idea, as long as they’re not set up in a way that insulates medical providers from responsibility. That’s a big caveat.

Q.

What about Senator John Kerry’s assertion that it’s “doable” to rid the system of frivolous lawsuits?

A.

I guess it’s doable because there aren’t very many frivolous suits.

Texting while driving

Illinois will soon become the 17th state to ban texting while driving.  A recent study found that texting dramatically increases the likelihood of an accident or near accident and impairs the attention of a driver.  Texting appears even more dangerous that using a mobile phone although studies have found dramatically decreased driving ability among mobile phone users as well.  At least one study found that drivers using a mobile phone performed similarly to drivers who were impaired by alcohol.  Hands free devices did not impact the driver performance.  Using a phone with or without hands free made the driver less responsive to the conditions on the road.  

The National Safety Council recently called on legislators and businesses to stop the practice of talking on the phone or texting while driving.  There is little question that using a phone or texting can impact driver performance which can impact the bottom line of a business or their insurer.  The Harvard Center of Risk Analysis estimated that cell phone use while driving contributes to 6 percent of crashes which equates to 636,000 crashes, 330,000 injuries, 12,000 serious injuries and 2,600 deaths each year.  It is unclear whether that includes use of the phone for texting as well.

An accident which occurs when an employee is using a phone for business may also implicate the employer. The driver may be acting in the scope of their employment which may give rise to liability even if the driver is in their own car.  This may trigger the employer's insurance coverage or result in exposure for the company directly. Questions such as where the driver was going, who they were talking to, who pays for the phone, who initiated the call and the purpose of the call must all be examined.  

The use of a phone to call or text while driver certainly affects the ability of the driver to operate the vehicle safely.  States are responding to the data and businesses may soon follow by prohibiting drivers in company cars from calling or texting while driving or prohibiting employees from making business calls while driving.  

When a negligent driver was using a phone at the time of an accident questions must be answered to determine whether an employer may also be held responsible for the negligent conduct.  

What to look for when hiring a personal injury lawyer

There are a lot of choices when hiring a personal injury lawyer in chicago.  Many lawyers welcome personal injury clients although their practice does not focus on such claims.  Here are some questions to ask the lawyer you are considering hiring:

1. Are you going to personally handle my case? Many larger law personal injury law firms have lawyers who focus on bringing the client in but don't otherwise handle their claim.  It is fair to ask who you will be talking to you when you have a question.  Will a lawyer call you back or a paralegal? Will the lawyer take your calls or a secretary screen them?  Who will take depositions if the case is litigated? Who will attend the appearances in court?  Big firms have advantages and disadvantages too.  Get to know how the process is handled there.  You need to be comfortable with the lawyer you hire and know whether he or she is the person you will be dealing with.  

2. What types of cases do you handle?  Does the lawyer handle personal injury cases as well as commercial litigation, criminal cases, divorce and estates? There are many issues which can complicate a personal injury claim.  Lawyers who specialize in one practice area often (but not always) are more familiar with the issues which will affect the value of your claim.

3. Have you taken cases like mine to trial?  Rarely does a plaintiff want to take a case to trial at all costs.  Most parties want the best settlement available.  Sometimes a case can't be settled and must be tried.  A lawyer who has taken cases like yours to a jury will better understand the roadblocks and strengths of your personal injury claim and may be more likely to reach the best settlement on your behalf.  There is an old saying that if you prepare a case for trial it will settle and if you prepare a case to settle it will be tried.  Make sure the lawyer you hire knows his way to the courthouse, just in case.

4.  Have you handled cases involving injuries like this before? The type of injury and need for medical care often drives case value. Every case is different and the value is driven by a number of factors.  A lawyer who is familiar with the issues and the types of doctors and medical care involved can be an asset to you and your case.  

5. What do you charge? Is the attorney one-third of the amount recovered or does it increase if the case must be litigated? Some lawyers increase the fee to 40% if the case must be arbitrated or litigated.  One-third of the total amount recovered is the most common attorney fee.  No retainer is typically required.

6. Will your office handle my case from beginning to end or refer it somewhere else if the case doesn't settle?  Some lawyers try to settle cases and if they don't settle send the cases to lawyers who handle the litigation of the case.  This may impact whether the lawyer is interested in settling the case without litigating the case and involving another lawyer who would receive a share of the fee.  It is a fair question to ask your prospective lawyer.  

Part of choosing a lawyer is getting a feel for the lawyer and his or her office.  Meet with the lawyer.  Don't be afraid to ask good questions.  You will have to deal with your lawyer through a process which may be stressful and unfamiliar.  Find a lawyer who will walk with you every step of the way.

Motorcycling with a passenger

 

Carrying a passenger on a motorcycle changes not only the way the motorcycle rides but also the issues the driver will face in case of a collision.  The weight distribution on the cycle changes with a passenger as may braking distance and cornering.  The independent motion of the passenger may also affect the way the bike rides and the cycle will often respond differently to wind.  An experienced driver is able to respond to these changes whereas an inexperienced driver may not.  

The driver of the cycle may be financially responsible for the injuries suffered by a passenger if a collision occurs.  If the driver makes a mistake and a passenger is hurt there may be a claim for personal injury resulting from the accident.  Policies of insurance are available for motorcycles and should be purchased to protect the driver and passenger in case of an accident.  I recommend liability and undersinsured motorist coverage of at least $250,000.  The motorcycle is less crashworthy than a car and the injuries are often more serious.  The availability of insurance coverage may impact the amount of money available in case of an accident.  If the accident involves a motorcycle and a car and the passenger on the bike is hurt, the injured passenger may seek recovery from both drivers.  A lawyer who handles personal injury litigation should be consulted to evaluate the fault of both drivers and the way a claim could and should proceed.  

The Motorcycle Safety Foundation publishes guidelines for the safe operation of a motorcycle with a passenger.  The guidelines show some of the dangers and issues of riding with a passenger and the issues a driver must be aware of before deciding whether riding with a passenger is advisable.  

Guidelines For Riding With A Passenger On Your Motorcycle  (from Motorcycle Safety Foundation)

1. All state laws and requirements for carrying a passenger must be followed. 

2. Some states have specific equipment requirements.  Examples: the 

motorcycle must have passenger footrests, passengers must be able to reach 

the footrests, and a motorcycle must have a separate seating area for a 

passenger. 

3. The decision to carry a child, assuming all safety and legal factors have been 

considered, is left to the parent or guardian.  Ensure that the child is mature 

enough to handle the responsibilities, tall enough to reach the footrests, wears 

a properly fitted helmet and other protective gear, and holds onto you or the 

passenger hand-holds.  Check your state’s laws; a few states have set 

minimum ages for motorcycle passengers.  

 

Operator Preparation 

 

1. Passengers should be considered as a second “active” rider so they can help 

ensure that safety and procedural operations are correctly followed. 

2. A passenger will affect the handling characteristics of a motorcycle due to the 

extra weight and independent motion. 

3. A passenger tends to move forward in quick stops and may “bump” your 

helmet with theirs. 

4. Starting from a stop may require more throttle and clutch finesse. 

5. Braking procedures may be affected.  Braking sooner and/or with greater 

pressure may be required. 

6. More weight over the rear tire may increase the usefulness and stopping 

power of the rear brake, especially in quick stop situations. 

7. Riding on a downgrade will cause braking distance to increase. 

8. Extra caution is called for in a corner because of the extra weight. 

9. Cornering clearances may be affected. 

10. More time and space will be needed for passing. 

11. The effects of wind, especially side wind, may be more pronounced. 

 

Motorcycle Preparation 

 

1. The motorcycle must be designed to accommodate a passenger. 

2. The motorcycle owner’s manual should be reviewed for manufacturer’s tips 

about motorcycle setup as well as any related operational recommendations. 

3. The motorcycle’s suspension and tire pressure may need adjustment. 

4. Care should be taken to not exceed the weight limitations specified in the 

owner’s manual. 

Passenger Preparation 

 

1. Passengers should be tall enough to reach the footrests and mature enough 

to handle the responsibilities. 

2. Passengers should wear proper protective gear. 

3. Passengers should receive a safety briefing (see #7 below). 

4. Passengers should consider themselves a second operator and share 

responsibility for safety. 

 

General Safety Considerations 

 

1. You need to be experienced in the motorcycle’s operation and have a safety- 

oriented attitude before taking on the added responsibility of carrying a 

passenger. 

2. Practice low-speed clutch/throttle control as well as normal and emergency 

braking in a low-risk area like an open parking lot, with a passenger. 

3. Use caution in cornering and develop cornering skills over time to ensure 

passenger comfort and safety. 

4. Use caution in corners as clearance may be affected. 

5. Use MSF’s Search, Evaluate, Execute strategy to increase time and 

space safety margins. 

6. Allow time for a passenger to adjust to the sense of speed and the sensation 

of leaning; speeds should conservatively safe and reasonable until a 

passenger acclimates to the proper riding techniques. 

7. Ensure passengers follow safety procedures: 

a. Complete personal protective gear is properly in use. 

b. Hold operator’s waist or hips, or motorcycle’s passenger hand-holds 

provided. 

c. Keep feet on footrests at all times, including while stopped. 

d. Keep hands and feet away from hot or moving parts. 

e. When in a corner, look over the operator’s shoulder in the direction of 

the corner. 

f. Avoid turning around or making sudden moves that might affect 

operation. 

g. If crossing an obstacle, stand on the pegs with the knees slightly bent 

and allow the legs to absorb the shock upon impact. 

8. Allow more time for passing. 

9. Be ready to counter the effects of wind. 

10. Avoid extreme speeds and dramatic lean angles. 

11. Be ready for a passenger “bump” with their helmet when stopping quickly. 

12. Start the motorcycle before the passenger mounts. 

13. Have the passenger mount after the motorcycle’s stand is raised and the 

motorcycle is securely braced. 

14. Annually complete an ERC Skills Plus RiderCourse with a passenger. 

15. Have frequent passengers complete a Basic RiderCourse so they can better 

understand the operator’s task. 

Motorcycle season is in full swing in Chicago.  More people are riding than ever before and the number of injuries occurring on cycles has also increased.  The Motorcycle Safety Foundation has published guidelines for the safe operation of a cycle and a helpful top ten list for car drivers to remember so that car and cycle drivers remain safe:

QUICK TIPS:  Ten Things All Car & Truck Drivers Should Know About Motorcycles

1.   There are a lot more cars and trucks than motorcycles on the road, and some 

drivers don't "recognize" a motorcycle; they ignore it (usually unintentionally).  

Look for motorcycles, especially when checking traffic at an intersection. 

2.   Because of its small size, a motorcycle may look farther away than it is.  It may 

also be difficult to judge a motorcycle’s speed.  When checking traffic to turn at 

an intersection or into (or out of) a driveway, predict a motorcycle is closer than it 

looks.

3.   Because of its small size, a motorcycle can be easily hidden in a car’s blind spots 

(door/roof pillars) or masked by objects or backgrounds outside a car (bushes, 

fences, bridges, etc).  Take an extra moment to thoroughly check traffic, whether 

you're changing lanes or turning at intersections. 

4.   Because of its small size a motorcycle may seem to be moving faster than it 

really is.  Don't assume all motorcyclists are speed demons. 

5.   Motorcyclists often slow by downshifting or merely rolling off the throttle, thus  not 

activating the brake light.  Allow more following distance, say 3 or 4 seconds.  

At intersections, predict a motorcyclist may slow down without visual warning. 

6.   Turn signals on a motorcycle usually are not self-canceling, thus some riders, 

(especially beginners) sometimes forget to turn them off after a turn or lane 

change.  Make sure a motorcycle's signal is for real. 

7.   Motorcyclists often adjust position within a lane to be seen more easily and to 

minimize the effects of road debris, passing vehicles, and wind.  Understand that 

motorcyclists adjust lane position for a purpose, not to be reckless or show off or 

to allow you to share the lane with them. 

8.   Maneuverability is one of a motorcycle's better characteristics, especially at 

slower speeds and with good road conditions, but don't expect a motorcyclist to 

always be able to dodge out of the way. 

9.   Stopping distance for motorcycles is nearly the same as for cars, but slippery 

pavement makes stopping quickly difficult.  Allow more following distance behind 

a motorcycle because it can't always stop "on a dime." 

10.  When a motorcycle is in motion, don't think of it as motorcycle; think of it as a 

person. 

Most personal injury attorneys in chicago and elsewhere charge a contingent attorney fee of 33% of the amount recovered.  There is no hourly charge or retainer and the fee is applied at the conclusion of the case when the injured plaintiff is receiving money.  Is the client getting their moneys worth?

The Rand Institute, a nonprofit think tank studied the issue and concluded that injured auto accident victims  who hire an attorney typically recover 25% more money that auto accident victims who do not.  This was true even after deducting the costs of hiring the lawyer.  

Many insurance companies recognize the advantages of a plaintiff hiring an attorney and work hard to discourage it.  Allstate was one insurer who aggressively pushed the idea that hiring a lawyer was not in the best interest of the injured plaintiff.  One can only assume that Allstate pushes people away from counsel because the insurance company recognizes that no lawyer usually means a smaller payment.  

Differences between truck and car accidents

Accidents involving tractor trailers raise a variety of issues different than do collisions involving cars.  For example:

1. The brake systems for trucks and cars are vastly different.  Tractor trailers are typically equipped with air brakes.  Familiarity with an air brake system is necessary for a driver to safely use them.  They must also be properly balanced or the steering and stopping distance of the truck can be affected.

2. Different truck body types affect operation.  Liquid in a tanker can move or a load in a straight truck can shift if not properly secured.  The improperly secured load can shift and impact the safe of the vehicle.  

3. Stopping distance is different.  It takes much longer for a truck to stop than a car.  

The Commercial Motor Vehicle Safety Act passed in 1986 requires states to meet minimum standards for commercial driver's licenses.  It requires that certain basic paperwork be kept on each employee as part of a personnel file.  A record of the driver's duty status is also required and keep maintenance records on the truck.  Many companies now use a computer terminal in the cab to log driver's times, GPS, company communications and pagers.  

Many tractors also include an on board computer (electronic control module (ECM)) which measures vehicle speed, distance, driving time and a multitude of additional information.  

There are substantial differences between a car and truck involved in an accident.  A lot more information is available through the discovery process which a lawyer can obtain on behalf of an injured plaintiff.  

Truck Accidents

Truck Accidents

Many trucking companies have relationships with law firms who defend them and agree to contact the lawyers immediately when an accident occurs.  The lawyers who will defend the trucking company will often visit the scene immediately, often while the investigation is ongoing.  This provides an opportunity to direct photographing, discuss the incident immediately with the truck driver and take statements from witnesses.  This is an advantage that injured plaintiffs typically don't have.

It is important if you are injured by a tractor trailer to get a lawyer involved on your behalf.  Accidents involving trucks are different than those with cars.  The motor vehicle code still applies but there are federal regulations which address everything from loading the vehicle to the number of hours a driver is allowed to operate his truck.  The drivers are professionally licensed with training to match.  The prompt investigation of the driver's conduct which caused the accident is critical.  Trucking companies are responsible for monitoring their driver's citations, comply with hours of service regulations and ensure they are healthy to drive.  

A lawyer must evaluate the driver's qualifications, the details of the accident and the conduct of the trucking company.  The sooner the lawyer can get involved the sooner the investigation of these issues can begin, preferably while the issues and evidence are fresh.  

The trucking companies have built a network of lawyers across the country to immediately respond to a catastrophic accident.  They wouldn't spend that money if they didn't think in the long run it resulted in lower payouts to injured plaintiffs.

Accidents at Private Railroad Crossings

Many of us are familiar with the crossing which has the bells, lights and the gates which drop into place when a train approaches.  However, many private crossings provide little or no warning to approaching vehicles that tracks are present, much less an oncoming train.  Private crossings are intersections of highways and railroads on roads either not open to public travel or maintained by a public authority.  Railroads often grant a license to an individual or company to place a crossing if the licensee is willing to accept certain responsibilities for maintenance.  Accidents at private crossing raise issues which must be addressed promptly to determine the cause of the collision and the fault of a defendant.  

When an accident occurs between a train and a car at a private crossing there are a number of issues to review.  Who operated the crossing? Who maintained it? Is there an agreement which sets out the responsibilities of the owner of the land or another entity?  This is a starting point in the analysis.  

What signs were placed and where? Were crossbucks present? Was there an active warning system (bells, lights, gates)? Should there have been an active warning system?  Was the crossing free of debris and were there appropriate sightlines for vehicles?  Was this a high speed rail corridor? Are there two tracks at the crossing with trains proceeding in opposite directions? How much vehicle traffic and train traffic runs through that crossing in a day?

By answering these questions a lawyer can determine whether negligence caused the collision at the crossing.  There are specific rules and standards which help answer these questions.  Every crossing must be evaluated individually and the circumstances of the collision examined.  Oftentimes collisions at crossings result in death and the testimony of witnesses is critical because the driver of the vehicle hit by the train is unavailable.  Reconstructions of the collision are often done which must also shed light on the cause of the accident.  

Complex issues arise when a train strikes a vehicle at a private crossing.  Getting an attorney involved promptly to conduct an investigation and gather evidence is critical to preserving a personal injury claim and increasing the chances of a successful outcome.

Traumatic Brain Injury

A traumatic brain injury (TBI) is often a devastating and life changing injury. TBI can occur in any number of ways including motor vehicle accidents, falls and any other circumstance causing trauma to the brain.  Direct trauma to the head is not required to cause a TBI as the forces involved in a rapid acceleration/deceleration can also cause the injury.  

Outward signs of injury to the head such as bruising or in the case of severe trauma skull fracture may be present.  Oftentimes, outward sign of injury is small and the patient may not recall striking their head at all.  

Doctors use a variety of measures to determine whether a person has suffered a TBI.  Did the person suffer the loss of consciousness? The loss of consciousness suggests a brain injury and was viewed as a necessary element to a TBI diagnosis.  Some neurologists believe that a feeling of being dazed or altered consciousness is enough to suggest TBI.  Either way it is one of the first things a doctor typically asks when taking a history after trauma.

Another measure of brain function is the Glasgow Coma Scale (GCS).  This tests a persons level of consciousness.  Are they awake? Able to interact? Responsive to input, pain? A normal GCS scale after trauma often suggests a strong recovery or a mild TBI whereas the lower GCS score often suggests moderate to severe brain injury.  A lower score portends a poor outcome.

Diagnostic tests such as CT scan or MRI may also be used to assess TBI.  Unfortunately a patient can suffer a TBI but have normal scans.  The types of abnormalities reflected on MRI or CT include leaking of blood which can cause the brain to shift and impact intracranial pressure.  The involvement of a neurosurgeon may be necessary to drain blood and relieve the pressure or stop the source of the bleed.

Even a mild TBI can result in long term disability and requires evaluation and management.  Seek the assistance of a personal injury lawyer if you have suffered a TBI and face the long road of medical recovery and a legal claim.  

Underinsured Motorist Claims

If a person is hurt by the driver of a car who is negligent one of the questions a lawyer will ask is whether the driver was insured.  Illinois law provides that every vehicle must be insured.  Unfortunately, Illinois law requires coverage which provides a minimum limit of $20,000.  In today's world, a short hospital stay  can quickly cost more than that small policy limit.

Underinsured motorist coverage protects a person from the driver who carries some, but not enough insurance coverage to compensate for the injury suffered.  The process starts with the at fault driver's coverage.  If the injured person's insurance provides more coverage than the at fault driver, an underinsured motorist claim may be available.  For example, the at fault driver carries insurance with a $20,000 limit and the injured person has a policy which provides $100,000 in coverage.  If the injured person was hurt to such an extent that the claim had a value approaching $100,000, the injured person could seek payment of the $20,000 from one policy and an additional $80,000 payment from his own insurer pursuant to the underinsured motorist coverage.  

The amount of the available underinsured motorist coverage depends on the amount purchased before an incident takes place.  We recommend liability and uninsured/underinsured motorist coverage of at least $250,000.  The cost of the increased insurance is low but the protection it affords is significant.  

Underinsured motorist claims often involve the assistance of a lawyer who specializes in the handling of injury and accident claims.  For example, it is critical that the consent of the underinsured motorist carrier be secured before the liability policy limit is accepted or the claim may be forfeited.  Discuss these issues with a personal injury attorney before proceeding.  

How much is a personal injury claim worth?

Clients often want to know the value of their claim and that is certainly understandable.  It is however very difficult early on to forecast.   There are many factors which influence the value of a personal injury claim including:

1. Liability- is it clear that the person or company you claim caused the injury was at fault?  If the case involves a driver running a red light or a rear end collision that question is often easily answered.  If the case involves a defective product or medical malpractice that is a much more difficult question.  Experts must be hired to review medical records and other materials and fault in those types of cases is often hotly contested.  Many claims arising from traffic accidents or premises liability (slip and fall accidents on someone else's property) are also defended aggressively when there is any hint that the person injured (the plaintiff) may also have made a mistake.

2. Injury- is the injury minor or life changing?  Even if the fault of the other party is clear the value of the claim is limited if the injury is small or goes away quickly.  High value personal injury claims are driven by catastrophic injury and loss.  A case which involves a visit or two to the doctor and shortly thereafter the plaintiff feels fine has limited value.  The personal injury case involving a medical condition requiring surgery and permanent loss or limitations is a different story.  If the medical care is substantial and invasive (surgery, injections), the injury will always cause some pain or limitation and/or the injury is life changing then the value of the claim may be very high.  The extent of the injury largely determines case value.

3. Insurance coverage- does the at fault person or company have insurance and if so how much?  Even if liability is obvious and the injury is catastrophic there is no guarantee of a financial recovery if no insurance proceeds are available.  Policies of insurance are contracts which provide a limit on the amount an insurance company has to pay for an injury.  The statutory minimum for car insurance in Illinois is $20,000.  Many companies specialize in selling policies of this size.  If a person insured by a policy with a $20,000 policy limit misses a stop sign and strikes a child breaking their arm and leg or even killing them, the insurance payment from the driver's policy is limited to $20,000.  A lawsuit can seek money from the driver personally although most people who carry small insurance policies on their cars don't have the money to pay for the injury they caused.  Whether the defendant has insurance coverage, how much coverage is available and whether the person injured has insurance coverage which may apply should be investigated by a personal injury lawyer.  

What to do with medical bills

Many people involved in an accident immediately begin to incur medical expenses.  The charges can quickly add up.  An ambulance bill is routinely hundreds of dollars and thousands of dollars for an ER visit which doesn't lead to admission to the hospital is common.  So what to do with the bills as they pile up?

1. Health Insurance.  The first and best option initially is giving the provider your health insurance information if you are insured.  Allow your health insurer to do its job and pay these bills even if another person caused the injury.  This will save you the phone calls from the billing department, the outstanding balances that lead to collection agencies and the headache of uncertainty.  There is a also a big advantage to having these bills paid when the time comes to resolve your case.

2. Medical Payments Coverage (Auto policy)- if the injury occurred in a car accident, the auto policy on the car you were in likely provides medical payments coverage.  This may provide benefits as low as $1,000 or as high as $100,000 or beyond.  The coverage is only limited by the amount purchased.  This coverage must sometimes be exhausted (fully paid) before a health insurer is obligated to pay on its policy.  

3. Medical Payments Coverage (Homeowner's policy)- if the injury occurred at someone's home or commercial property medical payments coverage is also likely included in the insurance policy.  This can be particularly helpful when the injury heals and the only real concern is the short term medical bills.

4. Ask for time- many medical care providers are willing to wait for payment if they know that the injury was caused by someone else and that person was insured by liability coverage.  Although the payment is not immediate, the hospital or doctor may receive a larger percentage of their bill than if they submitted it to a PPO or HMO.  

5. Pay it yourself- if the bills are small and you have the money to do so, you can pay the bills out of your own pocket and seek reimbursement from the at fault person's liability insurer.  Not many people have the money to pay these bills up front, especially if they are hurt and their work may be interrupted.   It and is worthwhile to first investigate all other options before tapping into your savings.

Discussing your options with a personal injury lawyer early in the process can save you the headache of unpaid bills down the road.

"Do I need a lawyer?"

Whether you need a lawyer after an accident depends on a variety of factors.  The most important factor is the nature and extent of the injury suffered. If the injury requires care in an emergency room with the likely need for follow up treatment consulting a lawyer to discuss the claim is recommended.  If the injury requires surgery or other more invasive medical care such as injections or advanced diagnostic testing such as CT scanning or MRI, involving a lawyer may be important.  If the symptoms are expected to last well into the future and may be permanent the involvement of a lawyer is certainly advised.  If the negligence of the other party is contested or the case involves a defective product, medical negligence or a construction accident, a lawyer's involvement is almost always a good idea.

If the accident resulted in only damage to property or the injuries suffered require little or no medical care you probably don't need a lawyer.  The property damage claim can be handled through your own insurer if the loss involves a car accident and your insurance included collision coverage.  

Most personal injury attorneys offer a free consultation. If you don't know whether you need a lawyer or don't know whether involving a lawyer makes sense for you take the first step and talk to a qualified lawyer about your problem.  You don't have to hire the lawyer and the information you receive is bound to help.