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Lawsuit Filed Against NCAA for Tragic Death of a Student in Hammer Throw Event

Student Ethan Roser, only 19 years old, was tragically killed in April 2017 while volunteering at a college track and field meet. He was struck in the head by a 16 pound hammer thrown during a practice exercise.  When he was struck, Ethan was standing in an area outside the field of play, near the spectator line.

image-of-hammer-throw[1].png

As shown in the above photo, the “hammer” consists of a metal ball attached by a steel wire to a grip.

On March 21, 2019, Jeffrey E. Martin of MARTIN LAW, LLC and David J. Schwaner of SCHWANER INJURY LAW filed suit in federal court against the National Collegiate Athletic Association for their failure to take steps to protect Ethan after they were put on notice that others had previously been injured in other hammer throw events. Amongst the allegations against the NCAA are that they failed to enact sufficient minimum size requirements for hammer cages; failed to enact safety rules for the Hammer Throw event which they knew or should have known created an unreasonable risk of harm to others; failed to require the presence of trained officials at track and field events; failed to warn Ethan of the unreasonable risk of harm posed by standing in the area where he was struck during warm-up throws; and failed to warn Ethan of the unreasonable risk of harm posed by the use of a hammer cage meeting only the minimum requirements for height.

image-of-cage[2].png

The hammer cage surrounds the athlete throwing the hammer.  These cages were designed to prevent the hammer from exiting the thrower’s hands in unprotected directions, such as out of the back, sides, and in dangerous angles from the circle.  Here, the height of the cage was insufficient to prevent the hammer’s trajectory from reaching volunteers, such as Ethan, standing outside the field of play.

Ethan’s parents are struggling with every parent’s worst nightmare: the death of their beloved child.  Young Ethan had his whole life ahead of him.  The violent nature of Ethan’s last moments make his loss even more unbearable. Ethan’s siblings will feel his absence every day.

Their hope is that no other family suffer this unimaginable and preventable tragedy.  Our shared desire is that this lawsuit will trigger a change for the better: to finally enlighten the NCAA that they need to review and revise their policies and procedures and adopt previous safety recommendations to increase the size of the cage around the hammer throwers to prevent errant throws from escaping and fatally injuring anyone else.

To read more, see the following links:

http://www.espn.com/college-sports/story/_/id/26367364/ncaa-sued-parents-student-killed-meet

https://apnews.com/3a251f11111f44528054b5ba6ca4700f

https://www.dailyherald.com/news/20190325/parents-sue-ncaa-over-wheaton-college-freshmans-death-at-track-and-field-competition

 

 

 

Contact Your Senators asking them to vote NO on Anti-Civil Justice Legislation

By a vote of 218 to 210, the US House of Representatives narrowly passed HR 1215 entitled “Protecting Access to Care Act of 2017” but it does not actually protect access to care.  This bill establishes provisions governing health care lawsuits where coverage for the care was provided or subsidized by the federal government, including through a subsidy or tax benefit.  The bill has a number of objectionable provisions but perhaps the most objectionable and unfair is that it limits noneconomic damages to only $250,000.  Juries will not be informed of this limitation.

This GOP Bill Undermines the Ability of the Victims of Medical Malpractice and the Victims of Defective or Dangerous Medical Products to Be Made Whole.

Despite the fact that Republicans often refer to H.R. 1215 as a “medical malpractice” bill, the Republican bill applies its provisions not simply to “medical malpractice” cases but to all “health care lawsuits.” For example, in addition to medical malpractice, the bill’s provisions apply to cases involving for-profit nursing homes and long-term care facilities.  So no matter how much an innocent victim of medical malpractice or nursing home abuse suffers – including pain and suffering, disability, disfigurement, loss of limb or lives – this legislation limits the recovery to only $250,000.

Supporters argue that such limitation is necessary due to skyrocketing malpractice insurance premiums which, they argue, increase health care costs.  However, the truth is that the GOP bill is outdated; no evidence of a malpractice insurance “crisis” today.  Medical malpractice liability insurance has historically attracted the attention of Congress during industry “crisis” periods, which occurred during the mid-1970s and mid-1980s.  These periods were marked by significant increases of insurance premiums and difficulties in finding malpractice insurance for certain medical specialties.  However, all available evidence shows that the malpractice insurance market is not in crisis today.  Indeed, according to a 2016 article in a medical malpractice insurance industry trade publication, “the medical malpractice insurance industry is continuing its unprecedented run of consecutive profitable years in 2016.”  That same publication, describing a survey of medical professional liability insurance rates, noted that for the “vast majority (75 percent) of [medical malpractice] insurers in the survey, rates have remained flat between 2015 and 2016.”  This is just another measure to deprive injured people and families from being fairly and reasonably compensated for the effects of medical and other health care negligence.

It never ceases to amaze me that in business litigation, one company can sue another for a trademark infringement or contract dispute, for example, and reap millions or even billions of dollars in compensation and other than noteworthy mention of the result nobody bats an eye (even though you can reasonably expect that the costs will be passed onto consumers).  However, if an innocent surgical patient, for example, suffers the loss of sight, the loss of a limb, or is horribly burned from a defective medical device, members supporting such measures want to limit that injured person and his family’s ability to receive just compensation.  Perfect justice would be turning back the hands of time and preventing the injury from ever happening. Unfortunately, since we cannot access perfect justice, we are limited to monetary compensation. Such compensation can help families put their lives back together from catastrophic injuries.

With such questionable support, patient advocates and all of us who fight to uphold the 7th amendment (the right to a trial by jury) feel hopeful that Senate Democrats and Republicans will vote against the bill. While the date of a Senate vote is not yet known, I cannot stress enough how important it is to contact your Senators to voice your opposition to the bill.

Please contact your Senators and ask them to vote NO on this anti-civil justice legislation.

Wrongdoer Protections On The Table … Must Stop Them

 House GOP quietly advances key elements of tort reform

House Republicans are advancing a series of bills that would make changes to the civil justice system long sought by doctors and U.S. corporations, including a cap on some medical malpractice awards and new roadblocks for classes of people seeking to sue jointly to address harm. The U.S. Chamber of Commerce and other business groups are promoting the measures, arguing that courts have grown overly tolerant of frivolous and fraudulent claims.  Civil rights and consumer groups oppose the measures, saying they would severely limit the ability of average Americans to pursue legal remedies from powerful institutions. 

Their thought process is flawed as there are judicial procedures in place to do away with frivolous and fraudulent claims, and no one wants to invest their time and resources in baseless claims. MOREOVER, THESE MEASURES DO NOT DISCRIMINATE BETWEEN VALID, MERITORIOUS CLAIMS AND WOULD EFFECTIVELY DESTROY OUR CONSTITUTIONAL RIGHT TO TRIAL BY JURY.  

One proposal would limit monetary awards in medical malpractice suits to $250,000 for noneconomic damages, which include pain and suffering. Currently, there is no federal limit on medical malpractice claims, and awards can run into the millions of dollars. Late Thursday, the House narrowly passed two of the four measures along party lines: The Innocent Party Protection Act would shift some claims to the federal system from state courts, which tend to be more sympathetic to plaintiffs. The Fairness in Class Action Litigation Act would permit class-action lawsuits to proceed in federal court only if every person in the class had “an injury of the same type and scope.”

A third bill is expected to come before the chamber Friday: The Lawsuit Abuse Reduction Act would require federal judges to sanction attorneys whose claims are later found frivolous. In a letter to congressional leaders, opponents said the measure would have a “chilling effect” on a broad range of complaints, including civil rights violations, employment discrimination and environmental abuses.

The House has approved similar measures in recent years only to see them stall in the Senate. But the Senate may be more inclined to seriously consider the measures, advocates said, with a Republican president inclined to sign them in the White House.

During House debate Thursday, Rep. Lamar Smith (R-Texas), who introduced the Lawsuit Abuse Reduction Act, said the effort is intended to rebalance a justice system that has tilted too far in favor of plaintiff’s attorneys and their clients. “There are so many frivolous lawsuits, ruining people’s reputations, robbing people of their livelihoods. We have to do something to reduce these junk lawsuits,” Smith said. “Often they are filed with the intention of getting a settlement. It’s a form of legal extortion.”  

Most Democrats oppose the measures, arguing that they would slam shut the courthouse doors to deserving plaintiffs. Many also complained that GOP leaders were moving the bills through the Capitol at breakneck speed, without the close analysis and public debate typically afforded major legislation.

None of the four proposals has been aired in a congressional hearing. The House Judiciary Committee quietly voted along party lines to approve them over the past several weeks.  House leaders “are turning the legislative process into a kind of subterranean operation,” said Rep. Jamie B. Raskin (D-Md.), a leading opponent of the bills. “While the populace is spellbound by [Trump], the conservatives in Congress are dismantling access to justice and our tort civil liability system.” Even some Republicans were critical of the lack of hearings. 

“We need to be as open and transparent as possible. This was the complaint with Obamacare; that it was forced down our throats without enough discussion,” said Rep. Ken Buck (R-Colo.), referring to the passage of President Barack Obama’s health initiative in 2010. 

Republicans and business groups have long sought to retool the civil justice system, arguing that frivolous lawsuits are producing outrageous awards that bankrupt businesses and deny compensation to legitimate victims.  FUNNY: THESE SAME BUSINESS GROUPS SAY NOTHING ABOUT LIMITING RECOVERY IN COMMERCIAL SUITS BETWEEN CORPORATE ENTITITES.  If, for example, AT&T sues Verizon for some trademark or patent infringement, these leaders do not bat an eye if there is a multi-million or billion dollar judgment.  But if a worker is seriously hurt on the job or a young mother is permanently injured so she is no longer able to care for her children due to a medical negligence, these Congressman want to limit the right to recovery to some pre-determined limit.  THIS IS AN ABOMINATION AND THE PROPONENTS OF THESE BILLS SHOULD BE AHAMED OF THEMSELVES.  

Joanne Doroshow, executive director of the Center for Justice& Democracy at New York Law School, called the fast-paced legislative campaign to overhaul multiple parts of the civil court system “unprecedented.”  “These bills, put together, would exonerate large corporations and the health-care industry for any kind of harm they may cause everyday people,” Doroshow said. Doroshow and others said the Fairness in Class Action Litigation Act would squelch most class-action lawsuits, which typically involve plaintiffs with a wide variety of similar complaints. It could sharply restrict membership in a class, for example, to women who had been sexually harassed in the same way by the same manager, they said.

That measure would also affect asbestos trusts, which distribute funds from legal settlements to victims of asbestos-related illnesses and injuries. The trusts would be required to publicly disclose the names, medical information and award amounts of victims, an attempt to cut down on fraudulent claims that opponents say would violate victims’ privacy rights.

Military veterans disproportionately suffer from asbestos-related illnesses and injuries, and many veterans groups are fighting the bill.  “Forcing our veterans to publicize their work histories, medical conditions, majority of their Social Security numbers, and information about their children and families is an offensive invasion of privacy to the men and women who have honorably served,” 18 veterans’ groups wrote in a letter to congressional leaders.

The fourth measure in the package has yet to be scheduled for a vote. The Protecting Access to Care Act would establish a three-year statute of limitations for filing civil lawsuits in most cases where patients and their families believe negligent health care caused injury or death. The bill would also set a $250,000 cap on compensation for “noneconomic damages,” which are separate from damages plaintiffs receive based on future economic losses. Noneconomic damages are meant to compensate victims for pain and suffering, as well as permanent disfigurement or other serious disabilities that may not interfere with their ability to work.

Many states have already adopted caps on noneconomic damages, but some have declared such limits unconstitutional. The House proposal would override those decisions, prompting lawmakers in both parties to complain that the measure would trample states’ rights. The caps would apply broadly to all manner of medical malpractice, including errors in surgery, side effects from unsafe drugs, abuse and neglect in nursing homes, and sexual assault by doctors.

PLEASE CONTACT YOUR CONGRESSMEN AND ASK THEM TO VOTE AGAINST THESE PROPOSALS.

 

So-Called Workers’ Comp “Reform” Sticks Taxpayers With Bills

All too often, politicians frame proposals as “reform” measures that will help Illinois residents. In reality, however, when one considers the deeper implications those measures end up forcing Illinois taxpayers to pay for workers injured on their jobs for which their employers should be held accountable and costs should be paid by the workers’ comp insurers. That is the primary incentive employers and their insurers have to improve working conditions to reduce injuries. 

The following op-ed by ITLA President Christopher T. Hurley appeared online in The State Journal-Register, The Southern, Rockford Register-Star, and the Moline Dispatch/Rock Island Argus.  [Emphasis added.]

Any one of us could be hurt on the job. It doesn’t matter if we work in an office, a factory or on a farm, accidents happen to people in every occupation. When someone is seriously injured, the question becomes whose responsibility is it to pay for their care and rehabilitation so they can get back to work?

For Republican Governor Bruce Rauner, his insurance industry allies, and many businesses the unfortunate answer is that the person who was hurt and the taxpayers should pay. Under the guise of “reform” they are seeking further changes to our workers’ compensation laws that shift the risk of needing to care for the injured away from insurers and that allow employers to more easily evade the responsibility for ensuring safe worksites and working conditions.

Governor Rauner and Republican legislators want to cut the number of injured workers eligible to receive benefits and many employees, especially older workers more likely to be hurt, would receive no compensation for serious work-related injuries.

That would leave taxpayers, through Medicaid and other publicly funded programs, to cover the resulting medical bills and income support payments that are rightfully the responsibility of the employer. The governor and his insurance industry friends claim that workers’ comp is too generous. In fact, it’s all that’s standing between the families of injured men and women and a life of poverty.

Since lawmakers rewrote the state’s workers’ comp law in 2011, the insurance industry’s cost of issuing policies has plummeted as a result of the reduced amount they have to pay in claims. That legislation curtailed longstanding workers’ rights in an effort to reduce the cost of premiums paid by employers. The National Council on Compensation Insurance, an insurance industry trade group, has since recommended workers’ comp rate cuts totaling nearly 30 percent. That guidance has been ignored.

In 2017 alone, the NCCI suggests that Illinois insurers lower workers’ comp insurance premiums by 12.9 percent. This would represent the third largest drop in the nation and total more than Indiana, Iowa, Missouri and Wisconsin combined. But, employers won’t see a reduction in their premiums when the insurance industry refuses to pass the savings along.

A recent report by the Illinois Department of Insurance revealed that workers’ comp insurers here saw profit jump nearly 22 points between 2010 and 2014 – from negative 11 percent to positive 11 percent – and, by the end of that period, nearly match the national average.

There are 332 insurance companies competing for and writing workers’ compensation insurance in Illinois, more than any other state in the nation. We’re an attractive place to do business for them because of insufficient oversight and laws that put their interests ahead of regular Illinoisans. And yet they still want more – always more.

Insurance companies are taking advantage of both workers and employers. Any further changes to Illinois’ workers’ comp laws should focus on insurance reforms, not punishing injured workers to further pad insurers’ profits.

Please contact your legislators and let them know you do not want insurance companies to take advantage of both workers and employers in Illinois.  

New Rule Improves Safety By Ensuring Families Can Hold Nursing Homes Accountable When Residents are Harmed

For years, the nursing home industry has attempted to evade responsibility for injuries to their residents by including forced arbitration clauses in their contracts (typically in fine print) which remove the right to file a lawsuit to recover for injuries and, instead, require any grievances to be brought before an arbitration panel typically aligned with the nursing home industry.

In an American Association for Justice (AAJ) article that appeared back on September 28, 2016, the Association cited the Centers for Medicare & Medicaid’s announcement of a final rule regulating nursing homes.  AAJ’s President Julie Braman Kane stated:

“The days of nursing homes using forced arbitration agreements to evade accountability and force residents and their families into signing away their legal rights are nearing an end.  Today the Obama administration finalized regulations prohibiting pre-dispute arbitration clauses, taking a tremendous step toward protecting nursing home residents by ensuring that they can hold facilities accountable in cases of abuse or neglect.

“Families harmed by nursing homes united with a wide array of advocates for seniors and consumer groups to urge CMS to prohibit pre-dispute arbitration, and their voices were heard. Today’s rule will ensure that arbitration is truly voluntary by permitting its use only after a dispute arises.

“This will greatly improve patient safety at nursing homes and restore the rights of nursing home residents and their families.”

The American Association for Justice works to preserve the constitutional right to trial by jury and to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others—even when it means taking on the most powerful corporations. If you wish to read more about the good work done by AAJ, visit http://www.justice.org.

 

 

ABA Journal Article Underlines Importance of Vigilance for Families of Nursing Home Residents

An article in the August 2016 American Bar Association Journal discusses whether regulatory fines and nursing home litigation improves nursing home care. Essentially, the article concludes that both fines and lawsuits against nursing homes do not significantly improve care. Nursing home owners use tactics to separate their corporations and negotiate with state regulators to decrease fines when violations are found. The appeal of fines imposed by state regulators can take years to resolve and may ultimately be reduced through settlement. Most lawsuits against nursing homes settle and frequently include confidentiality clauses that prohibit public disclosure of the facility’s identity and the settlement terms.

This article underlines the importance of families checking on their loved ones in nursing homes to make certain they are receiving proper care. To increase profits, nursing home owners will try to do with the minimum amount of staff resulting in them being overworked and unable to provide necessary care to their residents.  

When selecting a nursing home, checking online sources as to the facilities’ ratings of care and existence of violations is a good start, but insufficient to ensure good care will be provided.  Visit prospective homes to see firsthand how the residents are treated.  Talk to the families of existing residents to get their thoughts on the care and attention provided, whether the facility provides regular activities, do call lights seem to be answered by staff promptly (if not, it may indicate insufficient staffing), and whether the food is varied and flavorful.  See whether the facility looks and smells clean, and whether there seems to be sufficient staff interacting with the residents.  

Once a nursing home is selected, families must continue their vigilance. Steps that should be taken to increase the likelihood of appropriate care actually being rendered to your loved one include the following: (1) Make it known to the staff that you will be visiting frequently and asking questions about the residence. (2) Ask that you be contacted if there is a change in the resident’s medication and/or condition. (3) Ask if the resident is eating and, better yet, be present during meal time to make certain the resident receives sufficient nutrition. (4) Periodically examine the resident’s skin for any signs of breakdown. If you see redness, bring it to the attention of the nurse and ask what will be done to heal the skin. Then, make certain you inspect the skin regularly to see if the treatment being rendered is effective. If the skin condition is not improving, you must contact the attending physician and demand that different treatment be provided. (5) Are precautions in place to prevent falls?  (6) Are gait belts or other equipment regularly used to assist residents during transfers? (7) Get to know the attending physician and speak with him/her regularly to make certain that whether he/she is aware of your loved one’s condition and what treatment he/she has ordered. 

The above list, although by no means complete, will increase the likelihood of your loved one receiving appropriate care and, in the process, hopefully make their stay in a nursing home more enjoyable.

To read more about the article: http://www.abajournal.com/magazine/article/nursing_home_lawsuits

 

Medical Errors = 3rd leading cause of death in U.S.

According to an article that appeared in US News and World Report on May 3, 2016, medical errors are the third leading cause of death in the U.S., after heart disease and cancer, causing at least 250,000 deaths every year, indicating that patient safety efforts fall far short.

To read more, click on : http://www.usnews.com/news/articles/2016-05-03/medical-errors-are-third-leading-cause-of-death-in-the-us

 

Accidents Involving Inflatable Attractions Increasing

If you’re a parent, you are likely well aware of the popularity of inflatable amusement devices, such as inflatable slides and bouncy houses. Those usually colorful attractions show up at all different types of events, from shopping mall openings and county fairs,E-Cropped slide 5.23.13 to church picnics and birthday parties. They are immediate attention-getters and children flock to them. However, what parents may not know is that accidents involving such amusements are on the rise. According to a study published in 2012 in the Journal of Pediatrics, the number of inflatable bouncer injuries to children increased dramatically from 1995 to 2010.

According to an article in CNN Health (May 14, 2014) entitled “‘Bounce house’ injuries skyrocketing,” Dr. Gary Smith, the director of the Center for Injury Research and Policy at Nationwide Children’s Hospital, launched the first study to determine the frequency of inflatable bouncer-related injuries occurring in the United States. Dr. Smith and his team analyzed records from the National Electronic Injury Surveillance System, which is operated by the Consumer Product Safety Commission. NEISS collects patient information for every emergency visit involving an injury associated with consumer products. According to its data, the number of inflatable bouncer-related injuries rose 1,500% between 1995 and 2010. In the last two years of the study, from 2008 to 2010, the rate of injuries more than doubled. In 2010 alone, according to the report, 31 children were treated in emergency departments each day on average. “That’s about one child every 45 minutes,” said Dr. Smith.

The CNN article goes on to say that “[o]f the nearly 65,000 children treated in U.S. emergency departments over a 20-year period, 55% of these injuries occurred between 2005 and 2010, according to the study. More than half of the injured children were in the 6- to 12-year-old age group; more than a third were under the age of 5.” Such an increase underscores the need for clear set-up guidelines, instructions for consumers, and better design to prevent injuries.

The Law Offices of Jeffrey E. Martin, LLC recently filed lawsuits on behalf of two 5th grade students who were severely injured when the 18′ tall inflatable slide they were on fell over during an end-of-the year picnic in May 2013 in the gymnasium at the Algonquin Lakes Elementary School in Algonquin, IL, allegedly due to a failure to properly secure the slide.

Read more in the May 15, 2014 edition of the Chicago Tribune.

See additional coverage in the May 16, 2014 Sun Times.

Lawsuits Filed for Inflatable Slide Accident

Law Offices of Jeffrey E. Martin, LLC filed lawsuits on April 23, 2014 for two students injured at the Algonquin Lakes Elementary School when an inflatable slide tipped over at a May 23, 2013 year-end celebration for fifth-graders. The school had rented the slide from Ed’s Rentals and Sales. Due to the 18-foot-tall slide not being properly secured inside the gymnasium, it tipped over throwing the students to the floor.

Read full article in Daily Herald.

E-Newspaper photo.article

Illinois Supreme Court Rules amended to provide greater security for personal identity information

Effective January 1, 2014, Supreme Court Rules 15 (Social Security Numbers in Pleadings and Related Matters) and 138 (Personal Identity Information) are amended.  By amending its Rules, the Court recognized the all too pervasive risk of identity theft and has taken measures to protect the privacy rights of citizens who are involved in litigation.  From now on, people seeking to obtain justice through our judicial system need not fear having to disclose personal identity information in public-accessible court-filed documents.   To read the specific changes, click on the following link:

http://www.illinoiscourts.gov/SupremeCourt/Rules/Amend/2013/122413.pdf

If you have any questions about these amendments or wish to discuss a potential claim or lawsuit, please contact The Law Offices of Jeffrey E. Martin, LLC for a free consultation.