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A stroke is essentially a “brain attack” that – like a heart attack – occurs when the blood flow to a portion of the brain is cut off. Strokes are the fifth-leading cause of death in the United States, with about 800,000 people suffering from a stroke each year. It is also estimated that approximately 80% of strokes can be prevented, and even those that are not prevented may be able to have their harmful effects reduced. However, an Illinois medical malpractice case can arise when a stroke is not promptly and competently addressed.

Legal News GavelOne of the ways that doctors treat a stroke in hopes of reducing its long-term effects is through medication. If medication can be provided to the patient soon enough after the stroke begins, blood may be able to be restored to the brain, reducing the chance of permanent disability or death.

Over the past few years, there has been a vigorous debate over the use of one stroke medication in particular, tissue plasminogen activator (TPA). According to those in favor of TPA, the drug acts as a clot-buster, opening blocked blood vessels and allowing blood to return to the brain. A recent news article discusses TPA, as well as the fact that despite having been around for over 20 years, it is still not commonly used to treat stroke victims.

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Breast augmentation, or augmentation mammoplasty, has been the most common elective cosmetic surgery in the United States for over a decade. Last year alone, there were over 300,000 breast augmentation surgeries performed across the United States. This figure represents a 3% increase from the year before, and a 41% increase from the number of similar surgeries performed in 2000.

Legal News GavelThe science behind breast augmentation surgery is sound, and the FDA has approved cosmetic breast augmentation surgery. However, the popularity of the surgery has resulted in a situation in which medical providers rush to fill the perceived demand, often overlooking critical safety protocols along the way. Indeed, the FDA estimates that approximately 1% of all patients undergoing a breast augmentation surgery will experience some form of complication or adverse medical event. These may include:

  • Asymmetry,
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Earlier this month, Dixmoor police evacuated approximately 30 men from an Illinois nursing home facility that was supposed to be providing the men with mental health services. According to a local news report, the men were evacuated after one resident called the police, explaining that they had been locked in the facility with no staff members present.

Legal News GavelEvidently, the facility provides mental health care services to men between the ages of 30 and 50. However, when police received the call explaining that the residents were locked inside, the conditions they found inside the facility were described as “deplorable.” Responding officers told reporters that there were men sleeping on mattresses strewn about on the floor and that the facility had no hot water. There was also an infestation of bed bugs.

The local police chief told reporters that the conditions in the facility left him “in awe.” He also explained that he had personally been to the facility in the previous weeks to shut it down for operating without a valid license.

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Over the past decade, manufacturers of electronic cigarettes, or e-cigarettes, have marketed their product as a safe alternative to smoking. Indeed, their efforts have been largely successful, with an estimated 2 million adults and teens reporting they have used an e-cigarette within the past three days.

Legal News GavelThat being said, the federal Food and Drug Administration has not approved the use of e-cigarettes as a stop-smoking aid. The U.S. Preventative Services Task Force agrees, noting that there is insufficient evidence supporting the use of e-cigarettes for those who want to quit smoking. Part of the reason why e-cigarette use has not been approved is the lack of longitudinal studies following the health of those who use them on a routine basis.

In recent news, according to a study released by researchers out of New York University and published in Proceedings of the National Academy of Sciences, e-cigarettes may still pose a potential risk of lung cancer, bladder cancer and heart disease. Depending on the results of further research, users of e-cigarettes who develop lung cancer, bladder cancer or heart disease may be eligible for compensation through a product liability lawsuit against the manufacturers of these products.

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Earlier this month, the United States Supreme Court decided a case that may have a major effect on nursing home claims throughout the United States. In Kindred Nursing Centers, L.P. v. Clark, the court held that state courts cannot adopt rules that single out arbitration agreements for negative treatment.

Legal News GavelFacts of the Case

In the case, two individuals each held a power of attorney respectively for their relatives, who were nursing home residents. When the relatives moved into the nursing home, the family members signed arbitration agreements on behalf of the residents at the same nursing home. After both of the residents died, their estates sued the nursing home, alleging that the home had been negligent in caring for them. The nursing home tried to force the plaintiffs into arbitration, claiming they had agreed to settle their claims through arbitration, according to the agreements.

Kentucky’s Supreme Court found that the family members could not enter into the agreements on behalf of the residents because the residents had not expressly given permission for the plaintiffs to do so. The Kentucky Supreme Court did not give effect to the arbitration agreements because it decided that in the case of arbitration agreements, an individual must specifically waive his constitutional right to a jury trial.

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In a recent decision, a state appellate court dismissed a firefighter’s lawsuit after she was run over by a truck while sleeping at base camp. After a fire broke out in a national forest, firefighters were deployed to fight the fire. A base camp was set up for firefighters so that they could stay near the forest. The fire protection districts, who were managing the fire, were required to set up a quiet, shaded sleeping area for firefighters at the camp.

Legal News GavelWhen the plaintiff returned to camp, the designated sleeping area was full. Some of the firefighters went to sleep by the horse barns, but she did not want to sleep there due to the conditions, and she asked her supervisor if she could sleep in the infield. Her supervisor agreed. Some others slept there as well. On the next night, after fighting the fire all day, she returned to base camp at around 9 p.m. She again asked to sleep in the infield, and her supervisor agreed. At around 10 p.m., another employee drove a water truck across the infield and ran over the woman. The truck crushed the woman’s chest, ribs, lungs, and left shoulder, and fractured her back. It also permanently damaged her heart, lungs, and eyes.

The woman sued the fire protection districts, among others, claiming she was injured because the district created a dangerous condition on public property. The defendants claimed they were immune from suit because the firefighter’s rule prevented the woman from recovering compensation. The state’s court of appeals agreed with the defendants and dismissed the lawsuit, finding the case was barred under the firefighter’s rule.

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Legal News GavelEarlier this week, a federal appellate court upheld a jury verdict in favor of Boston Scientific in a lawsuit regarding its Uphold brand pelvic mesh product. In the lawsuit, the plaintiff alleged that she suffered injuries after a surgical procedure involving Uphold mesh that took place in 2010. The plaintiff alleged that Boston Scientific’s product was designed in an unreasonably dangerous manner and that it failed to provide warnings regarding the potential risks and dangers associated with the product.

In October 2016, the Federal District Court for the Western District of North Carolina concluded that the plaintiff failed to offer sufficient evidence showing that the product was designed in an unreasonably dangerous manner and granted a motion for partial summary judgment in favor of Boston Scientific. Additionally, the court concluded that the plaintiff did not support her claim that the company breached the implied warranty of merchantability regarding Uphold mesh. For a product to be “merchantable,” it must meet the reasonable expectations of buyers.

Also, the District Court concluded that the plaintiff did not provide sufficient evidence showing that her physician reviewed or relied on the allegedly insufficient warnings. After the court issued its ruling against the plaintiff, the plaintiff sought a reconsideration. At this time, she also offered evidence indicating that the doctor had read the materials, but the court concluded that the plaintiff would still have difficulty showing that the alleged harm and allegedly inadequate warnings were the cause of the injuries she sustained.

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empty operating roomThis month, the Judicial Panel on Multidistrict Litigation (JPML) will hear arguments regarding whether to consolidate the numerous pending cases against Ethicon, a subsidiary of Johnson & Johnson, regarding its physiomesh products. The JPML is the body responsible for overseeing multi-district litigation (MDL), which is a legal process that is somewhat similar to class actions. When dangerous products harm numerous victims, the cases often involve similar factual allegations and legal claims. To streamline the process and promote efficiency, the cases can be organized in an MDL proceeding before one judge. Unlike a class action, each plaintiff maintains his or her individual case and must prove that he or she is entitled to damages.

Physiomesh is a product targeted toward hernia repair surgeries. It is a synthetic mesh material that is marketed to be used in laparoscopic herniorrhaphy procedures. The product’s unique design features five separate layers. Two types of material make up the first four layers, while the final layer is polypropylene mesh. This design has not been used in other mesh products. According to Ethicon, the multi-layer feature is designed to reduce adhesions and inflammation and to help fixate and incorporate the mesh into the abdominal area.

The concern regarding Ethicon’s physiomesh arose in May 2016 when the company issued a recall after discovering that the product leads to higher revision rates when used in a specific type of hernia repair. Revision surgeries can be extremely painful and expensive for patients, especially when they anticipated having their medical issue resolved during the first procedure.

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When someone suffers injuries as a result of a defective or dangerous product, the potential defendants that may be held liable range from the company that designed the product to the manufacturer and even the retailer. Product liability cases involving product defects can arise from defects in manufacturing or defects in the product’s design. Manufacturing defect cases involve a defect in a product caused when the product was not manufactured according to its intended design. In contrast, design defect cases involve a defect in a product caused when the product’s design was unreasonably dangerous. There can also be marketing defects in cases in which there was an insufficient warning of the product’s dangers.

Legal News GavelIn an Illinois defective design case, a plaintiff must prove that the product had an unreasonably dangerous condition, the condition existed when the product left the defendant’s control, and the condition caused the plaintiff’s injuries. There are different tests courts use to determine whether a product is “unreasonably dangerous.” Under the consumer-expectation test, the question is whether a product failed to perform as safely as an ordinary consumer would expect. In contrast, under the risk-utility test, the question is whether a product’s risks outweighed its benefits. The risk-utility test considers a number of different factors, including the feasibility of alternate designs, whether the design conformed to industry standards, the utility of the product, the likelihood of injury, and the manufacturer’s ability to eliminate the unsafe condition.

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Personal injury claims arising out of car accidents usually involve acts of negligence, and they often involve multiple parties. For example, there may be allegations that a driver failed to obey traffic laws, failed to drive safely considering the conditions, or failed to properly maintain the vehicle’s brakes. There also may be allegations that a driver was negligent in responding to another driver’s actions or violated a traffic rule or law.

Legal News GavelDepending on the circumstances surrounding an accident, if a driver violated a statute, ordinance, or traffic regulation, it may be considered negligence per se. If so, the driver’s conduct may give rise to a rebuttable presumption of negligence, or it may be considered evidence of negligence. In cases involving multiple parties, each party’s actions may come under scrutiny, potentially reducing the plaintiff’s compensation.

Comparative Negligence

Traditionally, under a different doctrine called contributory negligence, if a plaintiff was found to be partially at fault, the plaintiff could not recover any compensation from the defendant. However, today Illinois follows the doctrine of modified comparative negligence. Under the doctrine of comparative fault, or comparative negligence, a plaintiff’s recovery may be reduced by their own percentage of fault.

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