Category Archives: Illinois law

New Illinois Medical Malpractice Law

Governor Quinn recently signed Public Act 97-1145 into law, changing one big thing and clarifying another big issue in Illinois medical malpractice cases.

First, attorneys fees on medical malpractice cases are now capped at 33 1/3% of the total recovery. There had previously been lower caps as case values increased. This is important for all attorneys to pay attention to for new or future cases. I think it’s a good thing, as med mal cases tend to be the toughest, longest, and most expensive cases personal injury lawyers handle.

The act finally codifies the current version of the 2-622 expert certification requirement:

(735 ILCS 5/2-622)  (from Ch. 110, par. 2-622)
    Sec. 2-622. Healing art malpractice.
    (a) In any action, whether in tort, contract or otherwise,
in which the plaintiff seeks damages for injuries or death by
reason of medical, hospital, or other healing art malpractice,
the plaintiff's attorney or the plaintiff, if the plaintiff is
proceeding pro se, shall file an affidavit, attached to the
original and all copies of the complaint, declaring one of the
following:
        1. That the affiant has consulted and reviewed the
    facts of the case with a health professional who the
    affiant reasonably believes: (i) is knowledgeable in the
    relevant issues involved in the particular action; (ii)
    practices or has practiced within the last 6 years or
    teaches or has taught within the last 6 years in the same
    area of health care or medicine that is at issue in the
    particular action; and (iii) is qualified by experience or
    demonstrated competence in the subject of the case; that
    the reviewing health professional has determined in a
    written report, after a review of the medical record and
    other relevant material involved in the particular action
    that there is a reasonable and meritorious cause for the
    filing of such action; and that the affiant has concluded
    on the basis of the reviewing health professional's review
    and consultation that there is a reasonable and meritorious
    cause for filing of such action. If the affidavit is filed
    as to a defendant who is a physician licensed to treat
    human ailments without the use of drugs or medicines and
    without operative surgery, a dentist, a podiatrist, a
    psychologist, or a naprapath, the written report must be
    from a health professional licensed in the same profession,
    with the same class of license, as the defendant. For
    affidavits filed as to all other defendants, the written
    report must be from a physician licensed to practice
    medicine in all its branches. In either event, the
    affidavit must identify the profession of the reviewing
    health professional. A copy of the written report, clearly
    identifying the plaintiff and the reasons for the reviewing
    health professional's determination that a reasonable and
    meritorious cause for the filing of the action exists, must
    be attached to the affidavit, but information which would
    identify the reviewing health professional may be deleted
    from the copy so attached.

(Howard Zimmerle is a medical malpractice lawyer in the Quad Cities of Illinois and Iowa. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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Filed under Illinois law, Legal News, Medical Malpractice, Tort Reform, Uncategorized

Illinois Health Care Services Lien Act – New Case

One of the great tools in a plaintiff lawyer’s arsenal in Illinois is the Health Care Services Lien Act, which reduces the amount of certain medical liens in some cases. It can really help increase the total amount your client ends up with in a settlement.

A new case from the 5th District, Stanton v. Rea, notes that the 40% of the settlement that goes to the medical lienholders should not be calculated until after costs have been subtracted from the settlement. In other words, the Act doesn’t mean 40% of the pie, it means 40% of the pie after costs. In some cases, that can make a big difference.

My partner, Mike Warner, just spoke on some new aspects of the Lien Act at the recent Rock Island County Bar Association Seminar. I think a thorough “how to” post is forthcoming.

(Howard Zimmerle is a personal injury lawyer in the Quad Cities of Iowa and Illinois, helping people who have been injured due to someone else’s fault. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com).

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Filed under Illinois Case Law, Illinois law, Negotiations, Settlements

New Illinois Rule 243 – Jurors Can Ask Questions!

Big news today – the Illinois Supreme Court adopted Rule 243, which allows jurors in civil cases to ask questions in certain circumstances. The rule reads as follows:

New Rule 243
Rule 243. Written Juror Questions Directed to Witnesses
(a) Questions Permitted. The court may permit jurors in civil cases to submit
to the court written questions directed to witnesses.
(b) Procedure. Following the conclusion of questioning by counsel, the court
shall determine whether the jury will be afforded the opportunity to question the
witness. Regarding each witness for whom the court determines questions by jurors
are appropriate, the jury shall be asked to submit any question they have for the
witness in writing. No discussion regarding the questions shall be allowed between
jurors at this time; neither shall jurors be limited to posing a single question nor shall
jurors be required to submit questions. The bailiff will then collect any questions and
present the questions to the judge. Questions will be marked as exhibits and made a
part of the record.
(c) Objections. Out of the presence of the jury, the judge will read the question
to all counsel, allow counsel to see the written question, and give counsel an
opportunity to object to the question. If any objections are made, the court will rule
upon them at that time and the question will be either admitted, modified, or
excluded accordingly.
(d) Questioning of the Witness. The court shall instruct the witness to answer
only the question presented, and not exceed the scope of the question. The court will
ask each question; the court will then provide all counsel with an opportunity to ask
follow-up questions limited to the scope of the new testimony.
(e) Admonishment to Jurors. At times before or during the trial that it deems
appropriate, the court shall advise the jurors that they shall not concern themselves
with the reason for the exclusion or modification of any question submitted and that
such measures are taken by the court in accordance with the rules of evidence that
govern the case.

The rule can also be found here.

So what does it all mean, practically speaking? A few thoughts:

  1. Judges do not have to let jurors ask questions. I suspect many older judges won’t do this at all. I’ve spoken to some local judges who are excited about this possibility.
  2. There is room to object and/or edit the question away from the jury. This is important, as I sure don’t want to object to a juror’s question in front of them.
  3. No discussion between the jurors. This is good too – it prevents preliminary deliberation.
  4. This does not need to happen for every witness. Hopefully this doesn’t slow down trials too much, although in a way it reminds me of letting fans suggest pitches to a pitcher – slowing down an already molasses-slow process.
  5. I’m a little scared of this. I like control. I usually know what the defense lawyers are going to ask, and they probably know what I’m going to ask.
  6. I also like the idea that jurors might feel more involved and more “into” a trial. This is a much better option than having jurors who are asleep by 1pm the first day of trial (or even in closing arguments… I had a juror sleep through my closing arguments once, and guess what… she became the foreperson, and I lost. GRRR…)

What do others think?

A recent article in the Illinois Bar Journal notes that other states and federal courts have tried it, and that the reaction of juries, judges and even attorneys has been largely positive.An example of this would be a pilot program in New Jersey, with similar results.

Will it change case outcomes? We’ll see. This may be the biggest change in trial practice since I became a lawyer – or it might be nothing.

(Howard Zimmerle is a plaintiff’s personal injury lawyer practicing in Illinois and Iowa. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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Filed under Illinois law, Juries, Legal News, Trial Practice

Some Tips for New Illinois Workers Comp Attorneys from the Late Arbitrator Jutila

As some may know, former workers comp arbitrator Jerry Jutila passed away recently. While he was battling illness, he nevertheless found the time to write a wonderful guide to arbitrators.

If you’re a workers comp lawyer, stop what you’re doing and read it.  Right now.

It’s intended for arbitrators and practitioners and should help people (especially new attorneys) learn to do things the right way. Many do, many more don’t.

I’ll keep a copy at my desk and read it from time to time. I suggest you do too.

(Howard Zimmerle is a personal injury and workers compensation attorney from Rock Island, Illinois, practicing primarily in Rock Island, Henry, Mercer, Knox and Whiteside counties in Illinois and Scott and surrounding counties in Iowa. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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Illinois Workers Compensation Commission Says “Impairment Ratings? We Don’t Need Your Stinkin Impairment Ratings”

One of the key features of the new workers compensation act in Illinois is that arbitrators are directed to use the AMA Guides (6th Edition) as a factor when awarding permanent partial disability. Specifically, Section 8.1b(b) requires the arbitrator to consider (a) the reported impairment rating, (b) the occupation of the employee, (c) the age of the employee at time of injury, (d) the employee’s future earning capacity, and (e) evidence of disability corroborated by the treating medical records. Additionally, the arbitrator must explain the relevance and weight of each factor he/she used “in addition to the level of impairment as reported by the physician.”

So does a physician NEED to report a level of impairment? Likewise, does the arbitrator NEED an impairment rating to approve contracts or enter a finding of disability?

According to the Commissioner’s office, the answers are No, and No.

I’m speaking at a seminar in Fairview Heights in February in detail about the effect of the new rule and the application of the AMA Guides. For now, there may not be as much of a shockwave as we thought.

(Howard Zimmerle is a personal injury and workers compensation attorney in Rock Island, Illinois, practicing in all of Western Illinois. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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Become an Instant Expert on the New Illinois Workers Compensation Law in 5 Minutes

By reading my post at the Rock Island Workers Compensation Attorney Blog. Like an expensive hairdo, it hits the highlights. The big points to us lawyer-folk are the changes to compensation for carpal tunnel and other hand injuries, wage differential awards, and use of the AMA guides. For unionized construction workers, you could be in trouble. For stoners, you could be in trouble. For doctors, you just took a pay cut.

It’s all at the other blog. Read up and become instant experts.

(Howard Zimmerle is a workers compensation attorney practicing in Rock Island, Moline, Henry County, Knox County and surrounding areas. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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Throw Away Your Bluebook – New Case Citation Rule in Illinois!!!

The State of Illinois changed good ole’ Rule 23 again. The days of the big old legal volumes (specifically the Illinois Reporter and Illinois Appellate Reporter) have gone the way of telegraphs, newspapers and polar bears.

Throwing away my old citation guide (but not really)

The proper way to cite a case in Illinois is (after July 31, 2011) to the public domain citation (with additional citations to the Northeast Reporter, if you want to go the extra mile). What is the public domain citation, you ask?

It’s a unique identifier given to each case by the Court.

A proper citation would include the relevant paragraphs and look like this:

People v. Doe, 2011 IL App (1st) 101234, ¶ 15
People v. Doe, 2011 IL App (1st) 101234, ¶¶ 21-23
People v. Doe, 2011 IL App (1st) 101234, ¶¶ 57, 68

Truth be told, I don’t know if this will be easier or harder, and I’m not sure when Westlaw and Lexis  (not to mention Fastcase) will catch up. Either way, the dinosaurs will have some catching up to do.

For further reading:

The new rule and commentary

Illinois Lawyer Now

(Howard Zimmerle is a lawyer practicing in the Quad City area of Illinois. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com). 

 

 

 

 

 

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