verdicts & settlements
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A recent study published in Pediatric Reseach documents the relationship between abnormal PCO2 and unfavorable outcomes in infants suffering from hypoxic ischemic encephalopathy.  The object of the study was to determine if hypocapnia could be correlated with adverse outcomes in infants with moderately severe to severe hypoxic ischemic encephalopathy.

The study utilized 234 instances of hypocapnia to determine if there was independent predictive value in data concerning abnormal PCO2 levels and abnormal outcomes for these children.  The studies authors determined that there is independent predictive value in the relationship between hypocapnia and adverse and unfavorable outcomes.

The authors of the study determined that future studies of normocapnia will be important in determining the extent of the relationship between abnormal PCO2 and adverse outcomes in infants with moderately severe to severe hypoxic ischemic encephalopathy.

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The Supreme Court of the United States has deferred action on a petition to hear a case involving a child who was brain injured at birth during labor and delivery at Evans Army Community Hospital in Colorado.  Critics of the Feres Doctrine hoped that the Supreme Court would use this opportunity to clarify and make fair the controversial doctrine.  The Feres Doctrine was articulated in Feres v. United States, 340 U.S. 135 (1950).  Justice Robert Jackson, writing for the court, wrote the opinion which held that the United States is not liable under the Federal Tort Claims Act for injuries that active members of the military experience due to the negligence of other active members of the military.

Isabella Ortiz was born in 2009.  Her mother was a Captain in the United States Air Force.  During the planned caesarian section delivery Capt. Ortiz was given a medication to which she had a known allergy.  As a result, her mother’s blood pressure dropped which caused Isabella to suffer hypoxic ischemic encephalopathy.   The lack of oxygen to her brain caused her to sustain brain damage.  As a result, she cannot walk on her own and needs assistance at school.

Her claim was originally filed in Federal Court in Colorado where it was dismissed because the court found that Isabella’s injuries flowed from conduct that was “incident” to military service.  The 10th Circuit Court of Appeals also denied the claim, applying the genesis test to the Feres Doctrine and ruling that Isabella’s injuries were directly related to her mother’s injuries making Feres directly applicable.

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The Illinois Appellate Court, First District has decided that when a plaintiff dies during medical malpractice litigation, even after the statute of limitations has run, the estate can add a wrongful death claim.  Previously, plaintiffs were faced with inconsistent statutes which made this scenario unclear.  In Lawler v The University of Chicago Medical Center Justice Delort, writing for the appellate court, resolved this conflict in favor of justice for the victims of medical malpractice.

The court found that since the defendants were on notice of the claim for medical negligence brought by Ms. Prusak before her untimely death that same complaint was not barred by the expiration of the statute of limitations or repose simply because her death claim did not accrue until after the expiration of the same because the original claim was filed within the statute.

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You have already suffered the indignity of being the victim of medical negligence.  You, or a loved one, has been seriously injured or killed by a doctor, nurse or hospital that engaged in conduct that fell below the standard of care for a well-qualified healthcare provider under like or similar circumstances.  You have been forced to relive this tragedy over and over again when you interviewed your lawyer, answered written discovery, gave a deposition, participated in mock trials and/or focus groups and were forced to attend fruitless mediation sessions.  The indignity is compounded by the smugness of the defendants and their attorneys and their unwillingness to accept their part of blame for your suffering, grief and sorrow.  Your case is going to trial.  What should you expect?

Trial can be terrifying for a plaintiff in a medical malpractice case.  Going to trial means uncertainty.  Going to trial means that the fate of your case will be decided by a jury of 12 people who do not necessarily know and understand the depth of the tragedy that you have experienced.  It is the job of your attorney to make the experience of trial as comfortable for you as possible.

In Cook County, where we do a lot of our trial work, the trial date is assigned months before the trial by the presiding judge of the Law Division.  On the day of the actual trial, your case is assigned to a trial judge at random by the court computer.  Once you are assigned to a trial judge, and assuming that none of the parties ask for a substitution of judge (every party has the right to change trial judges one time by statute) then the trial can actually begin.  Usually the parties receive a call from the trial judge once the case has been assigned for trial asking them to appear before the judge at a certain time.  The judge will usually spend some time talking to the lawyers and learning a little about the facts of the case.  Depending on the judge, some time might be spent trying to mediate a settlement.  Some judges are very good at brokering deals for settlement and some are not.  Depending on the judge’s level of interest you might spend hours or days trying to reach a settlement agreement.  The parties also will exchange motions that are known as motions in limine.  These motions are meant as a device to limit evidence or argument that might be presented to the jury.  Once motions conclude, the judge will call up a venire of jurors for what is known as voir direVoir dire is the lawyers opportunity to see and speak to prospective jurors make sure they are appropriate to serve on the jury.  Once the jury is selected, the lawyers can begin the presentation of evidence.  This typically begins with an opening statement, which tells the jury what the evidence will show, and ends with a closing argument, which is a lawyer’s presentation of what  the evidence means.  After closing arguments, the jury gets the case, deliberates and renders its verdict according to the law provide by the judge.

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The producers of the Tom Cruise movie, Mena, are being sued for wrongful death according to The Hollywood Reporter.  In September of 2015, two crew members working on the film were killed in a small aircraft accident in the Columbian mountains.

The crew members were working in a remote area of Columbia, flying over treacherous terrain.  The movie’s producers hired a Columbian pilot who was allegedly unqualified to operate the small aircraft in such dangerous conditions.

Movie productions have strict rules concerning who may or may not work on what has been described as a “closed set.”  If the production companies cut corners and hired an unqualified pilot to ferry members of its crew to the remote location then it is likely that they are responsible for the wrongful death of its crew.

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On May 12, 2011, Irma Sabanovic was on her way to pick up her boyfriend from his job as a DJ at the popular Chicago nightclub, Exit.  Somehow she became lost and wound up on Goose Island, an artificial island located in the Chicago River.  Goose Island is a heavy industrial area that is confusing to navigate.  Irma found her way onto W. Blackhawk Street.  While travelling westbound on Blackhawk her car left the road and plunged into the inky darkness of the North Branch of the Chicago River.  For nine days the Chicago Police searched for Irma, treating the case as a missing person’s investigation.  Eventually her body was discovered inside her upside down vehicle submerged in 12 feet of water at the bottom of the river off of the end of Blackhawk St.  Police canvassing the area were able to locate a closed circuit surveillance video that captured her vehicle driving off of the end of the road and into the river at 2:00 am on the morning of May 12, 2011.

Irma Sabanovic was a 25 year old fashion model who was studying theater at Wilbur Wright College.  She was a beautiful, sweet, fun-loving woman with a wickedly smart sense of humor.  Her family, unable to make sense of her needless and tragic death, hired Goldberg & Goldberg to investigate the circumstances and determine why there were no signs, barricades and warnings at the end of the road.  A wrongful death and survival lawsuit was filed at the end of May 2011 against the City of Chicago.

For years the City claimed that there were no warning signs at the end of the road, even though a similar tragic accident had occurred 17 years earlier on the opposite bank of the Chicago River.  After that accident, the City erected barricades on the West bank of the river but claimed to have done nothing on the East bank.  Or so we were told, until the City of Chicago discovered the proof of their own negligence in late 2015 when they “found” work orders which showed that stop signs and a dead end sign had been placed in 1993 and removed, for an unexplained reason, sometime thereafter.  It was also determined that a 2000 lb concrete Jersey Barrier had been placed on the road near the east bank of the river but that the barricade did not extend across the entire length of the roadway.  Had concrete barriers been deployed across the entirety of Blackhawk St. this tragedy would have certainly been avoided.

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In 2003 the American College of Obstetricians and Gynecologists(ACOG), along with the American Academy of Pediatrics, published Neonatal Encephalopathy and Cerebral Palsy: Defining the Pathogenesis and Pathophysiology (“NEACP”). This monograph became more commonly known as “the Green Book” and it has been roundly criticized as an attempt by its authors to use “junk science” to create hard an fast “essential” criteria to diffuse obstetrical malpractice claims against Ob/Gyns. In the more than 10 years since its publications its authors have backed off the allegedly essential nature of its core criteria and physicians have been forced to admit that factors like cord blood ph levels above 7.0 can still occur in births where the fetus experiences perinatal asphyxia that is the result of negligence.

Recently, ACOG published an update to the Green Book titled Neonatal Encephalopathy and Neurologic Outcome, Second Edition. This update changes some of the so-called “essential” criteria that expert witnesses have relied upon to defend causation in birth injury cases.

The update defines Neonatal Encephalopathy as a clinically defined syndrome of disturbed neurologic function in the earliest days of life in an infant born at or beyond 35 weeks of gestation, accompanied by early onset seizures and difficulty initiating and maintaining respiration and depression of fetal tone and reflexes. The update relaxes the criteria which obstetricians and pediatricians feel demonstrate the likelihood of peripartum or intrapartum ischemia playing a role in the pathogenesis of neonatal encephalopathy.

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On February 6, 2013, the Chicago law firm of Goldberg & Goldberg filed a wrongful death case on behalf of the Estate of Genevieve Klimczak who died on February 12, 2012. Ms. Klimczak was a resident of McHenry Villa, a self described “retirement community” offering 24 hour a day security…”so residents can leave the worries of living alone behind them.” McHenry Villa and Home Instead, Inc. have been named as defendants in the lawsuit. McHenry Villa is located at 3516 W. Waukegan Road in McHenry, Illinois.

On February 12, 2012, Genevieve Klimczak a 91 year old resident of McHenry Villa with Alzheimer’s disease was allowed to elope from her room at McHenry Villa and walk out of the building through a self-locking door that could not be opened from the outside. Ms. Klimczak’s body was found the next morning by employees of McHenry Villa. The temperature overnight was as low as 7 degrees Fahrenheit. At the time, Ms Klimczak was being attended by caregivers from Home Instead, Inc. Ms. Klimczak is survived by her nephews, Donald Lorenz and John Lorenz, and her niece, Evelyn Marthalar.. Mrs. Klimczak was a lifelong resident of Chicago.

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Abbott Laboratories best selling drug, Humira, has been linked to a host of serious side effects, including severe neurological injuries. Abbott’s is on track to sell $15 billion worth of the drug per year by 2015. Abbott already expects to sell close to $10 billion worth of Humira in 2012. Humira is used to treat a variety of rheumatological conditions, including, Rheumatoid Arthritis and Ankylosing Spondylitis as well as Crohn’s disease.

In 2009, Abbott included the following warning in the package insert for Humira under section 5.5 titled, Neurologic Reactions:

“Use of TNF blocking agents, including HUMIRA, has been associated with rare cases of new onset or exacerbation of clinical symptoms and/or radiographic evidence of demyelinating disease. Prescribers should exercise caution in considering the use of HUMIRA in patients with preexisting or recent-onset central nervous system demyelinating disorders.”

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Goldberg & Goldberg has filed one of the first products liability cases in the country against Abbott Laboratories concerning the drug Humira. Humira is expected to be the world’s biggest selling medication, with estimated 2012 sales of $8.7 billion. Humira is a TNF (tumor necrosis factor) blocker that is used to treat Rheumatoid Arthritis, Psoriasis, Crohn’s Disease, Ankylosing Spondylitis and Juvenile Arthiritis, among other conditions. Humira works by binding TNF and reducing pain, inflamation and joint damage that is caused by these conditions. Humira affects the immune system, and because of this, can hurt the bodies ability to fight infections and can cause a whole host of other problems.

Unfortunately, Humira causes neurological problems, opportunistic infections and malignancies. The litigation filed against Abbott claims that Abbott was aware of these problems and failed to warn the users of Humira about the real dangers associated with the drug.

The first trial of a Humira case is now set for April of 2013. Goldberg & Goldberg has taken a lead role in the prosecution of this litigation. If you or a loved one has been injured by the drug Humira, please call us. We would be happy to discuss your potential case with you.