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Monsters of the Midway

Monsters of the Midway

They rule the road. Whether 18 wheelers or their smaller counterparts, trucks take to our nation’s highways and byways regardless of the situation. Even throughout Covid-19, the trucking industry was active, albeit less than normal, in delivering needed supplies throughout the country. Often times, these trucks were practically alone on the roads. Inclement weather throughout much of the country in February caused delays as truckers had to navigate weather conditions safely and expeditiously. But, as the snow has melted, and the Covid-19 vaccines have come into play, the world as we knew it has come back to life…at least a bit. “What we are seeing to a certain extent is a bottleneck of trucks in cities and towns trying to get back on track after being sidelined recently,” says trucking accident attorney, Jeffrey Kroll, Partner with Kaveny + Kroll Trial Lawyers in Chicago (www.kavenykroll.com). The congestion can make for more dangerous conditions as these behemoths of the road catch up on their usual rounds. The results can increase the already rising number of traffic accidents and fatalities that we have witnessed since the pandemic began.

Truck accidents are far more severe than car collisions because of the massive size and weight of the tractor/trailer. With the ever increasing number of semi-trucks sharing the road with passenger vehicles comes a greater likelihood of being involved in a trucking accident. Statistics on trucking accidents are grim – tractor trailer accidents are responsible for 1 out of every 8 traffic fatalities in the state of Illinois alone. In 2019, 5005, people were killed in accidents involving a truck weighing over 10,000 pounds.

The trucking accident attorneys at Kaveny + Kroll, LLC have decades of experience in assisting individuals and families navigate the complex legal system when a truck collision is involved. The complexities of commercial vehicle accidents are influenced by Federal Statutes, ownership issues of the tractor or trailer, and the insurance companies that defendant them. These various entities are well versed in defending tracking lawsuits brought against them for personal injury or wrongful death. We have represented motorists, pedestrians, passengers and even bicyclists, who have had their lives altered with a truck resulting in deleterious consequences. Sadly, we represented the family of a young lady who was killed by a right hand turning truck on the North side of Chicago. It was the first shared bike death trial in North America.

Our firm is experienced with Federal Safety Regulations which apply to trucking companies and have achieved successful settlements and verdicts by demonstrating that the violation of these regulations caused or contributed to this life changing event. (https://kavenykroll.com/practice-areas/car-truck-or-recreational-vehicle-accident/)

With our law offices headquartered in downtown Chicago, our truck accident attorneys know the area well and have experience in working on large trucking accidents involving all of our Illinois highways and toll roads, including, but not limited, to I-80, I-55, I-294, I-290, and I-90.

While most truck cases stem from driver error, similar to motor vehicle collisions, our firm has consistently helped individuals in the following types of trucking accidents:
•        Rear end accidents
•        Intersection accidents
•        Jackknifed semi
•        Rollover
•        Driving too fast for road conditions or traffic
•        Poor maintenance on the tractor/trailer
•        Left hand turn accidents
•        Right hand turn accidents

Regardless of the circumstances, crossing paths with a truck at a high rate of speed, regardless of the conditions can be devastating to all those involved. “Our goal is to level the playing field,” says Kroll. “While trucks will generally believe they rule the road, our purpose is to assure that our clients have their stories told in a way that allows them to obtain justice and full compensation.”

What You Don’t Know…

What You Don't Know...

Ava Gehringer is a Trial Attorney with Kaveny + Kroll (www.kavenykroll.com). Born, raised and currently an Evanston resident, Ava Gehringer penned the following column on What You Don’t Know…

How much do we have to see to believe? How much of that is dictated by whether it is what we want to see and believe?

Once we see the consequences of things we could have done but didn’t know we should have, would we go back to change those things? Or is the devil you know better than the devil you don’t?

The COVID-19 vaccines have gone through plenty of criticism. Some fear the unknown of them, and the “rushed” safety clearance, but did any of those people know what was in the vaccines they never question because they weren’t created in their lifetime? Is the age of information at our fingertips even helpful if we as laypeople lack the experience to adequately process and act on that information?

These questions are made all the more puzzling by data showing that in facilities where both residents and staff qualify for the first round of vaccinations, the residents are far more likely to agree to be vaccinated than the staff. For example, at one veterans’ home in Illinois, 90% of the residents have reportedly been vaccinated, whereas only 18% of the staff have been. (https://chicago.suntimes.com/politics/2021/1/4/22213911/illinois-states-veterans-homes-staff-covid-19-vaccine-lasalle-manteno-anna-quincy). Thus, it seems, even some nurses and doctors who have seen firsthand the agony the virus causes are hesitant. What are we to take from that? When medical professionals refuse to be inoculated in extremely high numbers, what do we make of Anthony Fauci being vaccinated live on our TV screens?

Though the FDA has of course given clearance to the vaccine makers to begin distribution, they also have warned against possible side effects. As of now, the side effects appear to be generally mild, and the risk of adverse reaction to the COVID-19 vaccine is far outweighed by the risk of serious illness or death due to contracting COVID-19. For those who do suffer an adverse reaction, though, is it possible companies who distribute the vaccine could be legally responsible for injury caused?

Though too early to say for sure in the context of COVID-19 specifically, vaccines have been a source of intense debate. While most blindly accept the MMR vaccination regimen (measles, mumps, rubella) required by schools across the nation, some vaccines haven’t reached that level of broad acceptance. And of those, some have become the source of legal battles.

For instance, Gardasil—also known as the HPV vaccine—has been at the center of many controversial debates. Marketed as a safeguard from cervical cancer (as well as certain STIs and other cancers), the three-dose vaccine first became available in 2006. Over time, the vaccine has been encouraged for boys and girls as young as nine and as old as twenty-six.

Since 2006, Gardasil has been at the center of numerous lawsuits. In one case, a family’s 21-year-old daughter died unexpectedly shortly after receiving her third and final Gardasil shot. Two years after her death, her family filed a claim with the National Vaccine Injury Compensation Program (NVICP). Though the Special Master ruled in 2016 that the family had not met their burden of proof (namely, that the administration of the vaccine caused their daughter’s death), the family appealed that decision to the Court of Federal Claims. In 2017, a judge vacated and remanded the decision, and sent it back to the Special Master to reconsider. Some three months later, the Special Master changed course and awarded compensation to the young woman’s family. (Source: https://newyork.legalexaminer.com/health/fda-prescription-drugs/family-found-to-have-met-burden-of-proof-that-gardasil-caused-daughters-death/)

Other families have brought similar cases in states across the country alleging Merck, the company who makes Gardasil, misled the FDA, legislators, doctors and moms about the safety and efficacy of the Gardasil vaccine. In one, a 19-year-old alleged she suffered and continues to suffer from an autoimmune disease after receiving multiple Gardasil injections. (Source: https://www.baumhedlundlaw.com/blog/2020/august/gardasil-lawsuit-claims-hpv-vaccine-caused-teen-/)

Thus, while there is not yet clarity about potential legal exposure for adverse reactions to the various COVID-19 vaccinations distributed by Pfeizer, Moderna, Johnson & Johnson, and the like, there is some precedence for liability as a result of adverse effects allegedly caused by vaccines. For now, however, the FDA and the medical community have determined any risk posed by adverse effects of the vaccine are far outweighed by the risk of serious illness or death caused by COVID-19.

Employers in the age of COVID-19 now have yet another legal hurdle novel to this pandemic. Employers who are desperate to open the doors of their respective businesses are now scrambling to come up with incentives to persuade their employees to get the vaccine. From proof of vaccination earning employees a raffle ticket to win a Google Next entertainment system to bonuses for those who safely return to the office, employers are grappling with the possible legal consequences if their incentive programs begin to cross the line into HIPAA violations.

The EEOC issued guidance last month that suggests employers can legally require most workers to be vaccinated, barring people with sincerely held religious beliefs or health worries such as allergies. Nonetheless, employers are still nervous, as these are questions we have never had to consider in modern legal history.

For those completely fed up with the restrictions COVID-19 have placed on day-to-day life, the “unknown” of the vaccine seems not to bother them. The devil they don’t know cannot be as bad as the devil they’ve come to know in the last 10 months. For others, especially those who have not had much of their lives interrupted by the pandemic—essential workers or those who are able to largely ignore the strict guidelines of the nation’s largest cities—the risk of the unknown seems to weigh far heavier on their minds.

Will mask-wearing hide the ability to assess truthfulness in court?

Will mask-wearing hide the ability to assess truthfulness in court?

Chicago Daily Law Bulletin – February 9, 2021
by Jeffery J. Kroll
Jeffrey J. Kroll is a founding partner of Kaveny+ Kroll LLC. He has achieved settlements and verdicts in a wide range of cases, from trucking accidents to medical malpractice to sports safety cases. He can be reached at jeffrey@kavenykroll.com.

As a practicing plaintiff’s personal injury attorney for 30 years and rapidly approaching my 57th birthday, I sometimes relate to the Farmers Insurance guy, “I know a thing or two because I’ve seen a thing or two.”

Yet, after a pizza delivery driver left, I could not come up with an answer to my 12-year old’s rather simple question, “Why do we get a round pizza cut into triangles and put it into a square box?” This wannabe teenager had me at a loss for words. I could not come up with a logical answer for Lily. I am sure there is some explanation or logic behind the reason, however, it escaped me at the moment.

That night, while lying in bed, staring at the ceiling, the events of that day led me down a quizzical journey which made me question why we drive on parkways and park on driveways. Needless to say, in my daughter’s eyes, 2021 got off to a slow start for her self-proclaimed “know it all” father.

Like many trial lawyers, I am anxiously awaiting to get back in the courtroom. It does not come without certain reservations and concerns about what will occur and how trials will be impacted. I know there are judges and attorneys far smarter than myself wrestling with these issues. Notwithstanding the pizza mystery, it leads me to another troubling topic – masked jurors and witnesses.

Obviously, the precaution of wearing a mask has been highly politicized. I can only imagine that the planning process of courts which are moving toward resuming jury trials, the topic of masks had to have raised some important questions. Are masks likely to impair the ability of lawyers to assess the truthfulness of potential jurors? Will masks impact the ability of jurors to assess the truthfulness of witnesses? Of attorneys?

Trial practice in the coming months is bound to pave new ground for jury selection in our pandemic world. Let’s face it, masks pose a number of conundrums. With a mask on, we most likely will not be able to pick up on the scowls or smirks which accompany many jurors during the seemingly endless redundant questions posed to the venire. Similarly, smiles are often used to reassure others, to communicate trustworthiness or to show compassion. With masks on, we just do not know what jurors may be thinking. Nonverbal communication can only go so far when one of the “tells” we rely on are facial expressions – not just the eyes, but the entire face.

Thus, I am a proponent that potential jurors be asked to remove their masks while they are questioned. I understand and appreciate social distancing and the requirement for masks. Notwithstanding the safety concerns, it is imperative we be able to question them unencumbered. We need to gauge the reaction of potential jurors to questions put forward to them.

Granted, that is one hurdle we will face with jurors. Every trial lawyer wants the ability to look at the jury and gauge their reactions to testimony or evidence. When wearing a mask, absent a shaking head or throwing down their notepad, it is going to make it difficult, if not impossible, to predict the jury’s thought process throughout a trial. Lawyers need to understand this may be the new norm for the foreseeable future.

What about the jurors’ capacity to assess the credibility of a mask wearing witness? Will a witness be encased in plexiglass? Will judges require witnesses stepping down from the stand to educate them in the well of the courtroom to wear a mask? If a juror’s ability to assess truthfulness is potentially impaired due to these new day restrictions, is it something which must be addressed in voir dire? For example, “Mrs. Smith, most of my witnesses will be wearing a mask while testifying. In evaluating the credibility of those witnesses, how will it impact you if they are wearing masks?” A simple amendment to Illinois Pattern Instruction Civil 1.01(A)(5) may be necessary. Such as, “Due to the current medical emergency, the witnesses will be wearing a facial mask. Instead of focusing primarily on the facial expression of the witness, rely on all of your tools of assessing a witness, you may consider…”

These are some of the questions which must be addressed prior to the courtroom doors opening. Of equal importance is whether our upcoming jury pools accurately reflect the community. Will individuals in groups hit hardest by COVID-19, i.e., African Americans, Latinos and the elderly be more reluctant to show up for jury duty. Will economic hardship now be a deterrent to more people serving? Only time will tell.

Just like the square pizza box housing its round treasures, we must look beyond the pale, or beyond the mask as it might be. As much as this seems to be yet another “pivot,” I am confident we will overcome this together.

Kaveny + Kroll Trial Lawyers (www.kavenykroll.com)is a leading boutique medical malpractice and personal injury law firm in Chicago. They were established in 2019 by award-winning attorneys Elizabeth A.Kaveny and Jeffrey J. Kroll. The firm is driven by a commitment to justice and the need to fight for victim’s rights and financial recovery. At Kaveny +Kroll, we believe a valued law firm should take your case personally …because it is.

5 and 5 for Friday

Five for Friday!

Quick tips on how to select the right attorney for your personal injury or medical malpractice claim.

In these troubled times, many of us have learned that it’s not just what you do, but how you do it. Elizabeth Kaveny and Jeffrey Kroll, partners in Kaveny + Kroll Trial Lawyers (www.kavenykroll.com), are committed to serving as your best advocate and doing so as efficiently and effectively as possible for you. “Our mission is to seek justice and financial compensation for our clients, many whom have been devastated by their experiences,” says Kaveny. “Our purpose is to help make you and your families whole again…as best as we possibly can.”

Even prior to a settlement or trial, actions can be crucial to determining the best outcome. Whether you seek help from Kaveny + Kroll or another group, please remember some important caveats to assist in your case.

If you (a family member or friend) are a victim of personal injury whether as a pedestrian, a driver or passenger in a vehicle, at the workplace or any other type of accident, we recommend that you take the following steps:

  1. Contact the police immediately and file a report.
  2. Seek immediate medical attention.
  3. Take photographs of the scene as soon as possible.
  4. Make sure to note other individual’s information (driver’s license, license plate) name, address, phone number, whether involved or simply a witness.
  5. Contact a personal injury lawyer who is experienced and credible. While the ‘loudest’ advertisements may pique your attention, ‘ambulance chasers’ will not present the best image for you and your case in a court of law. Do your research!

 

If you believe that you (or a family member or friend) have been the victim of medical malpractice whether this involves negligence on the part of a health care professional (doctor, nurse, technician etc.), a hospital or a nursing/rehab home, or any other injury as the result of what you believe to be a medical error, we recommend that you take the following steps:

  1. Tend to proper care first! Make sure that your medical issue is being addressed by a qualified professional, not necessarily the individual with whom you are having an issue. Your health comes first.
  2. Collect your medical records, discharge instructions, phone or text messages, correspondence, prescriptions, personal notes, photographs, et al. This may be the time to call upon anyone who may have accompanied you to an appointment or procedure in order to obtain their perspective as well. These materials will form the basis of any effort to seek justice and compensation.
  3. Contact an attorney that specializes in medical malpractice to discuss your case. Take the time to do your research and inquire about credible and experienced trial lawyers who can best represent you! Remember, not all attorneys are created equal when it comes to representation in complex medical cases.
  4. Avoid venting or engaging in discourse with the physician, health care professional or facility with whom you have had an issue. Anger and disappointment are completely normal, but your attorney will be able to address the issues calmly with professionalism in order to best serve YOU.
  5. One of the best ways to avoid medical malpractice is to ask questions and don’t be afraid to get a second opinion. If you feel unsure of your care, take control as your own ‘Medical CEO’. Be vigilant and become informed. If in doubt, rely on a family member or friend to serve as your advocate. The best case is the one that never occurs!

 

KAVENY + KROLL Trial Lawyers have the experience and knowledge that you need to be best represented. Contact us with your legal concerns or any questions you may have. Call 312-761-5585 (KKTL).

Racial Inequities…in sickness or in health

Racial Inequities...in sickness or in health

By Jeffrey Kroll JD
Partner, Kaveny + Kroll Trial Lawyers

Harvard University’s Law School Class of 2023 has 47% of its admittees as students of color. Equally encouraging, the United States has seen an upward trend in healthcare professionals being people of color. In 2015, people of color made up 11.5% of healthcare professionals.  Just five years later, the U.S. Bureau of Labor Statistics reported this number as 15.9%. Over the years, there has been a consistent upward swing in the percentage of people of color going into the legal and healthcare professions.  This is good news, right?  Or, does this not tell the whole story?

Let’s face it, we live in one of the worst times for racial inequities since the Civil War. I do not make that statement lightly. Black and brown people have faced far more than their fair share of oppression throughout history, being overlooked for basic needs and rights looked at far too closely when it comes to persecution. Racism and discrimination are deeply ingrained in a variety of structures in our society, i.e., economic, social and political.

Add a worldwide pandemic to this mix and the result is certainly a disaster of unmitigated proportion. While Covid-19 is rapidly approaching almost half a million American deaths, one of the most tragic statistics is that,particularly in urban areas, it has disproportionately claimed the lives of minorities. In Chicago alone, the percentage of deaths attributed to Covid-19 among black and brown populations is almost 80%, leaving a much smaller rate amongst Caucasian and Asian individuals. Consider that the percentage of the population of these highly affected minorities represents less than 40%, we can easily see that these numbers are horribly skewed.

Why?is always an effective place to start. Unfortunately, the answers to this remain similar to issues with other disease, accidents and life shortening situations. Doctors take an oath to treat all patients equally, however, not all patients are treated equally well.  I have seen first-hand that minority populations have less access to quality health care.In the case of Covid, these groups are far more likely to continue working outside the home, live in multi-generational homes, be relegated to using public transportation and when they do get sick, they are either uninsured or underinsured, ultimately severely impacting the quality of healthcare they receive.

Another factor that Kaveny + Kroll continues to see throughout their practice is the lesser degree of attention afforded to minority populations as well as those that are economically disadvantaged. “The color of your skin should have nothing to do with the healthcare you receive,” says Kroll. “But, time and again, we have seen from examples and studies that black and brown people are more likely to be ignored, overlooked or dismissed in sickness or in health.”

Now what? To fight this seemingly uphill battle, as a society we need the healthcare and insurance industries to recognize and comprehend these harmful attitudes and actions. Whether it is insidious racism, or a latent bias,stereotypes are rampant in both medicine and the insurance industry. We have work to do as a society, but let’s hope this new generation of attorneys and healthcare providers can help steer us in the right direction.

Kaveny + Kroll Trial Lawyers (www.kavenykroll.com)is a leading boutique medical malpractice and personal injury law firm in Chicago. They were established in 2019 by award-winning attorneys Elizabeth A.Kaveny and Jeffrey J. Kroll. The firm is driven by a commitment to justice and the need to fight for victim’s rights and financial recovery. At Kaveny +Kroll, we believe a valued law firm should take your case personally …because it is.

A Winter Wonderland of Liability

A Winter Wonderland of Liability

Snow, sleigh bells, lights, a race across the street and a hard fall onto an unplowed walkway is all part of winter in Chicago. Even in the isolated world of Covid-19, a snowfall mixed with a waning desire to shovel provides all the ingredients for a premise liability lawsuit filed against you. “Living in a crowded city like Chicago is always challenging,” says Jeffrey Kroll, Partner with Kaveny + Kroll Trial Attorneys in Chicago (www.kavenykroll.com),specializing in premise liability and personal injury. “But, when you add in the elements of winter, our usual roadways and walkways can become hazardous.”

Kroll cautions drivers to be extra aware once the temperatures begin to dip. “More often than not, those who are braving the elements will cross streets in the shortest amount of time/space possible, even if that means jaywalking or coming out from behind parked cars.”

And, while many find that they don’t have the time or energy to clear their property and sidewalk after a snow or ice storm, Kroll reminds us that in Chicago, shoveling is more than just an afterthought…it’s the law.“Every owner, lessee, tenant, occupant or person in charge of any home, building or lot of ground in the city that touches a sidewalk or public way is responsible for removing snow and ice from a 5-foot-wide portion of the sidewalk, according to Section 10-8-180 of Chicago’s Municipal Code” says Kroll. “This responsibility is in effect seven days a week and requires paths to be clear of snow by 10 am the morning after an overnight snowfall or 10 pm following one that occurs during the day.”

The sidewalk snow regulations affect all home, business, and property owners. Business owners that rent space adjacent to sidewalks are responsible for shoveling snow as well. Some landlords for residential and commercial property hold tenants responsible for snow clearance as a part of their lease agreements. Renters who aren’t certain of their shoveling responsibilities should check their rental agreements or ask their landlords for clarification. If you on a corner lot, you must remove snow and ice from sidewalks on all sides of your building and from corner sidewalk ramps. This applies to residential property and business owners. The city also prohibits shoveling snow into any right of way including bus stops, divvy stations or any situation where the snow would impede traffic of any kind.

“This ordinance was created in order to ease the burden on those who may be facing mobility challenges, particularly when it comes to navigating snow filled or icy thoroughfares, including children, older adults and those with any disabilities,” says Kroll. “This is a shared community responsibility to assure safe passage for everyone, regardless of the weather conditions. And, by helping others, you protect yourself from the threat of liability should someone fall on your property.”

Not being a good neighbor comes with a price tag as well. Fines ranging from $50 to $500 can be attached to tickets issued by Chicago’s Department of Transportation, who employ inspectors to check for problems and follow up on complaints made to the city’s 311 hotline. “Frankly, the fines can be the least of your problems,” says Kroll. “A face plant on an icy patch of your sidewalk or driveway can result in a premise liability suit which can be quite costly depending on the severity of injuries suffered. And, in all honesty,with Covid-19 raging in our city, no one wants to end up in an emergency room from an avoidable fall.”

Kroll recommends that even if you are not in the mental or physical condition to take on shoveling duties, consider hiring an individual or a service to stay in compliance with the law and the possibility of further liability. “At the end of a snowy day, you are far better off safe and shoveled.”

On the Road Again: Driving through COVID-19

On the Road Again: Driving through COVID-19

Face it, right now is an ‘interesting’ time in our county… for a variety of reasons. The least of these reasons is our roadways. For months, the pandemic kept us quarantined. Today, many are still sequestered in their homes. Yet, Illinois saw an 11% increase in roadway fatalities in the first three months of the year. How can this be with a lockdown in place? With a COVID-19 pandemic resurgence, more and more people are supposed to be at home. More and more people are working from home. In Chicago, rush hour traffic is nearly desolate in place of the usual bumper to bumper traffic. One would think we should be nearly accident free. That would be an inaccurate assumption.

So, what is happening? Why is it that when are ‘grounded’ by the pandemic and statistics indicate that there are fewer drivers on the roads, why are we seeing an unexpected increase in roadway fatalities?

According to the Washington Post, the answer is quite simple. With open roadways, people are driving more recklessly. Average speeds have increased significantly above the posted speed limit, in fact, more than doubling in many cities.

Less congestion, plus wide-open roads for motorists, is a recipe for disaster. Furthermore, when you account for some drivers having a bit of “rust” on them for not driving as much during this period of time, it adds to the fateful equation. The roads, while mostly devoid of commuters, are also filled with younger drivers who are out of school, home from school with time on their hands and a vehicle at their disposal. According to the Centers for Disease Control and Prevention (CDC), the risk of motor vehicle crashes is higher among teens aged 16-19 than among any other age group. In fact, per mile driven, teen drivers in this age group are nearly three times more likely than drivers aged 20 and older to be in a fatal crash. Another factor is that the pandemic has ‘driven’ many off of public transportation and on to bicycles, scooters and walking, creating greater hazards for drivers looking to avoid these added elements to our roadways.

So, understanding the cause is helpful, but what of the solutions? How do we prevent future fatalities during a pandemic? As a Trial Attorney and Partner with Kaveny + Kroll (www.kavenykroll.com) in Chicago, specializing in transportation accidents and fatalities, here are a couple of suggestions for staying as safe on the road as are at home:

  • Regardless of the chill in the air, do not underestimate the increase of pedestrians and potentially, bicycle traffic, particularly in urban areas.
  • Obey speed limits, even if the roads are clear and traffic is light.
  • Follow local and state directives to stay off the roads if officials have directed drivers to do so.
  • Some states have asked drivers to shelter in place and stay off the roads except in certain situations.
  • Practice defensive driving and drive attentively, avoiding distractions. When you combine distracting driving with excessive speed, the risk of a fatality greatly increases.

COVID-19 has shown us that much of the damage can be collateral, whether through the economy, social interaction, civil unrest or through increased accidents on our roadways. This is not the time to let down our guard in any of these areas, as we slowly transition into our ‘new normal’.

September 17th is World Patient Safety Day

September 17th is World Patient Safety Day

On September 17, 2020, we will mark WORLD PATIENT SAFETY DAY, a cooperative effort of all 194 World Health Organization (WHO) member states. The objectives of World Patient Safety Day are to increase public awareness and engagement, enhance global understanding and spur global solidarity in action to promote patient safety. “Our purpose in honoring this date is to recognize patient safety as a global priority,” says Elizabeth Kaveny, Managing Partner of Kaveny + Kroll Trial Lawyers in Chicago (www.kavenykroll.com).

An experienced trial attorney representing patients in their recovery against health care providers guilty of medical negligence, Kaveny has long spoken out about the dangers that exist in our medical system…even pre-Covid-19 “Medical Error is the third leading cause of death in the United States, right behind Heart Disease and Cancer,” says Kaveny. “It has been noted that Covid is now the third leading cause of death but that’s only because Medical Error is not recognized by the Center for Disease Control (CDC) which collects and reports the data. Medical error can include misdiagnosis, delay in diagnosis, error in treatments such as medication or surgery, or lack thereof, all the way to criminal conduct. The causes of these ‘mistakes’ can range from inexperience and lack of education to an overtaxed system and lack of attention to detail.

The WHO reports that 4 out of 10 patients are harmed in the primary and/or ambulatory settings and up to 80% of these incidences can be avoided. Yet, while research efforts and funding routinely go to addressing and trying to reduce the risk of sickness and death from disease, much less can be said of working to mitigate the often lethal consequences of medical error. “So many of our clients’ families (or the direct victims of medical malpractice if they are fortunate enough to survive their ordeal) come to us with broken spirits and lives,” says Kaveny. “While our primary responsibility is to provide them with justice and financial compensation, we at Kaveny + Kroll spend much of our time strongly advocating for the need to proactively prevent these tragedies from occurring.”

In the current climate of Covid, many physicians and facilities are overwhelmed by the spread of the virus, What are we to reasonably expect in our system, straining under the weight of COVID-19? The truth is we can expect a higher than ‘normal’ amount of medical error, failure or delay in diagnosis. This could be the current or future heart patient, cancer patient or victim of infection whether home or facility based. Essentially, we concern ourselves with our most vulnerable segments of the population, which we all try to support every single day.

“For everyone so bravely fighting our current COVID-19 pandemic, please keep in mind that with  medical error acting as the annual cause of 250,000 to 400,000 deaths alone not to mention injuries per year, patients essentially experience a pandemic of medical error…every year,” says Kaveny.

But, there are ways to help advocate and prevent mistakes from happening and part of that starts with choosing the right providers or facilities based on your individual needs and circumstances. “To help assure yourself the best care, it’s important to do your homework and serve as your own ‘Medical CEO’ when making potentially life changing decisions,” suggests Kaveny. ““Many patients try to achieve a ‘one stop shop’ when it comes to their healthcare, something we do not recommend based on our experience “While your primary physician may make all referrals ‘in house’ and suggest ‘continuity of care’, many times, this is about convenience and allegiance to their own health system. In a rapidly changing and dynamic medical and scientific environment, you may have to go the distance for the best diagnosis depending on your condition, even if that distance is across town or further. The goal is to get the best care for you and your family, not the easiest.”

Kaveny recommends doing your research starting with Google, Medical ratings websites and recommendations from friends, family and those that are specifically dealing with your condition. “Word of mouth still remains one of the best ways of locating the best care,” says Kaveny.

Once you locate a physician, remember:
1) Be Honest in retelling your past, present and what you expect for your future
2) Ask about their experience in your particular condition
3) It’s okay to ask if they have been sued! A physician who responds negatively may be a red flag.
4) Ask about the possible complications that could occur, with your condition or their treatment

Keep in mind, the ‘visit’ goes both ways. “A good physician works from the SOAP model,” says Kaveny. “This allows for the most thorough view of a patient, their condition(s) and concerns. It can also be a checklist for patients in evaluating their physician experience.”

S – Subjective (Patient History)
O – Objective (Exam)
A – Assessment by Physician
P – Plan of Treatment/Management

“Being knowledgeable and prepared is an important element of Patient Safety Advocacy, on September 17th as well as through the rest of the year,” says Elizabeth Kaveny. “This is part of our mission to protect and serve not only our client population but the population as a whole.

COVID-19 and the Cubicle

COVID-19 and the Cubicle

Ava Gehringer is a Trial Attorney with Kaveny + Kroll (www.kavenykroll.com). Born, raised and currently an Evanston resident, Ava Gehringer penned the following column on Covid and the Cubicle…

In March, a staggering eighty-one percent of employed Americans polled reported that they expected a negative effect on their workplace from COVID-19, according to a Gallup survey. However, in that same survey, approximately four in five American employees expressed confidence they would be able to successfully meet the requirements of their job, even if the outbreak continued. It has been four months since our nation’s cities -and offices- experienced the most drastic change in decades. Still, almost half of American workers continue to express concern about being exposed to COVID-19 at work.

Employees are not the only workers who express concern, though. As we begin piece together what the pandemic means for us as a society, employers have had to quickly adapt to an everchanging landscape of liability for potential workplace exposure to COVID-19. The Occupational Safety and Health Administration (“OSHA”) has most recently issued updated guidance for employers geared toward providing rules for when employers are responsible for recording cases of coronavirus in the workplace.

While this naturally places an added burden on employers, especially when it comes to how they are required to determine whether COVID-19 exposure is workplace related, it is one of the primary ways employers can work toward the collective goal of contact tracing as a means of reducing the overall case count in the country.

But these are unchartered waters for not only the general public but for employers. While OSHA has deemed COVID-19 a recordable illness, the same has never been true for the common cold or seasonal flu. An employer’s duty to record work-related instances of COVID-19 is thus new and, naturally, riddled with potential flaws.

What is particularly tricky is that, even if employers place strict guidelines to limit the exposure of employees to one another while in the office, several inherent hurdles make such guidelines less than foolproof.First, the more we learn about this virus, the more it becomes clear that it is most easily transmitted indoors with relatively close and prolonged contact with others. In short, the average office space. Second, while the interoffice rules employers place are set to reduce the risk or spread, employers cannot control the choices their employees make to otherwise expose themselves once they leave the four walls of the office. Thus, because no mask wearing, occupancy-limiting, surface wiping policy can completely negate the risk of exposure, there will always be the risk of potential workplace liability.

Cue OSHA. Under OSHA’s guidelines, upon learning about a case of COVID-19 within its walls, employers are required to conduct a reasonable investigation into the illness’s relation to work. If they deem the COVID incident was “work-related” it must be recorded on an OSHA form 300. Experts also encourage employers to document efforts to investigate, should OSHA raise questions.

OSHA defines “work-related” as an event or exposure in the work environment which either caused or contributed to the resulting condition, or significantly aggravated a preexisting injury or illness, subject to certain enumerated exceptions. Understanding this definition’s limitations and ambiguity OSHA gives examples of how an instance of coronavirus might be work-related, such as when several cases develop among workers who work closely together, absent no alternative explanation.

Yet, this reasonable investigation must be conducted while balancing it with the respective employers’ respect for privacy concerns of its employees and presumed lack of expertise in the medical field. In light of those concerns, OSHA notes that it is generally sufficient to ask the employee how he/she believes they contracted the illness and discuss possible activities they engaged in outside of the work setting that may have led to the illness.Employers must also, of course, review the employee’s work environment for potential COVID exposure.

Due to the natural difficulty involved in tracking potential workplace exposure, experts have encouraged employers to focus primarily on prevention. Though admittedly not a perfect solution, requiring employees to fill out affirmations that they have not been in close contact with a person with COVID and that they themselves are not experiencing COVID-related symptoms, taking the temperature of employees before shifts, social distancing, mandating masks in common areas, and sanitizing work stations are all prudent steps to take to stop the potential liability before it even begins. At the very least, such measures are a first line of defense for employers navigating the topsy turvy waters of the pandemic.

Covid-19 waivers: Lawyers explain what you should know before signing a coronavirus liability waiver

Covid-19 waivers: Lawyers explain what you should know before signing a coronavirus liability waiver.

(CHICAGO, IL)…

Chances are you have signed a liability waiver in your lifetime—perhaps prior to participating in an extreme sport or joining a local gym. But odds are you have not been asked to sign one before going shopping, dining at a restaurant, or getting a haircut. Until now.

As states gradually reopen, businesses, school districts, and universities across the country are implementing mandatory COVID-19 liability waivers in an effort to insulate themselves from a potential onslaught of negligence lawsuits related to COVID-19 exposure. For example, a school district in South Carolina is requiring parents, as part of the student registration process, to sign an agreement that states:

By signing this agreement, I acknowledge the contagious nature of COVID-19 and voluntarily assume the risk that my children and I may be exposed to or infected by COVID-19 by attending and/or participating in sports-related activities in connections with the District’s schools. . . . I understand and agree that this release includes my claims based on the actions, omissions, or negligence of the district, its employees, agents, and representatives, whether a COVID-19 infection occurs before, during, or after participation in any school-related activities.

“First and foremost, it’s important to remember that waiver or not, claiming injury is a one to one proposition,” says Jeffrey Kroll, Partner with Kaveny + Kroll Trial Lawyers (www.kavenykroll.com) in Chicago. “In other words, if you are affected by Covid through contact with a business or organization, the liability would only apply to you, not whomever else you would pass along the virus to.”

school district in Missouri is requiring parents who want to their child to play a school sport to sign a similar waiver releasing the district and its employees and agents “from any and all . . . legal liabilities for” not only any “injuries” sustained by the child, but also “death.” Similarly, last month, the President of the United States’ reelection campaign required everyone attending a rally in Tulsa, Oklahoma to sign a waiver that stated: “By attending the Rally, you and any guests voluntarily assume all risks related to exposure to COVID-19 and agree not to hold Donald J. Trump for President, Inc.; BOK Center; ASM Global; or any of their affiliates, directors, officers, employees, agents, contractors, or volunteers liable for any illness or injury.”

The NFL is reportedly considering requiring fans to sign a similar waiver to attend games. Colleges across the country have asked student-athletes to sign COVID-19 liability waivers absolving the college of liability if the player contracts COVID-19 when they return to campus. Two United States Senators have introduced legislation to prohibit colleges from using this practice.

The increasing use of these waivers raises important questions for individuals about the nature, scope, and effect of these waivers. Are they enforceable in court? If you sign one and then contract coronavirus due to the negligence of a business or school, would the waiver bar your claim for damages, or merely count as evidence against you—that is, evidence that you “assumed the risk” of contracting COVID-19? Because no court in the country has ruled on the enforceability of one of these waivers yet, answers to these questions remain undetermined. Nevertheless, here are some things you should know before signing one of these waivers:

 

  1. Each state has its own laws regarding the enforceability of liability waivers. Three states—Louisiana, Montana, and Virginia—prohibit them entirely. All other states recognize and enforce them if certain requirements are met, though some states apply these requirements strictly while others apply them moderately or leniently.
  2. On the whole, courts tend to impose three basic limits on liability waivers. First, courts generally hold that you cannot assume risks of which you are entirely unaware. For this reason, before enforcing a liability waiver, courts will typically check that the language is clear and comprehensible and unmistakably sets forth the parties’ intent and the terms and effect of the agreement. Given the widespread coverage of the global coronavirus pandemic, a court would likely be hard pressed to credit an argument that an individual did not understand the risks contemplated by a waiver discussing “COVID-19 exposure.”
  3. A second general limit on liability waivers is that courts typically require that risks be assumed voluntarily rather than involuntarily or without a real choice in the matter. For this reason, a supermarket outside a city center could not require all shoppers to sign a liability waiver before buying food. However, this limitation may not apply in the case of a hair salon, for example.
  4. Third, courts generally will not enforce a liability waiver that violates public policy. For this reason, most states decline to enforce liability waivers purporting to shield an entity from liability for gross negligence, reckless conduct, willfull/wanton misconduct, or intentional torts.The general rule is that a liability waiver can shield an entity from liability for only its negligent conduct—that is, failing to act with reasonable prudence under the circumstances. Of course, there is some variation in the particulars of these limitations across states, and in courts’ willingness to enforce them.
  5. In Illinois, liability waivers are enforceable, though disfavored by courts. This means that Illinois courts will generally enforce liability waivers as a bar to suit so long as they clearly spell out the intention of the parties and do not violate public policy, but will, in evaluating whether a waiver satisfies these requirements, strictly interpret the language of the liability waiver against the party seeking to enforce it. In simpler terms, the tie usually goes to the party seeking non-enforcement. As in other states, if a waiver is upheld, it will apply only to ordinary negligence.
  6. Do courts typically enforce liability waivers signed by minors? Most states will treat such a waiver as enforceable but voidable, meaning that the other party can enforce the contract unless the minor voids the contract before he or she reaches the age of majority (which is 18 in all but three states, including Illinois). The reason is that most states hold that a minor lacks the capacity to contract. An exception exists where a minor contracts for necessities such as food, shelter, or medical care, which courts will generally enforce.
  7. What about liability waivers signed by a parent or guardian on behalf of a child? Most states do not enforce such waivers, though some states recognize an exception to this rule where the parent-signed waiver relates to a public school, municipal program or voluntary extracurricular program. Courts often uphold such waivers out of a recognition that these programs might not exist without such protection from liability. For this reason, we may see more school districts implement mandatory liability waivers in connection with extracurricular activities and sports programs.

 

What This Means for You:

The bottom line is that you should not take COVID-19 liability waivers lightly. Treat them with the respect they deserve. If a business is asking you to sign one before letting you on its premises, understand you are not required to sign the waiver. It is your choice. At the same time, recognize that the business may deny you services.

Treat these waivers properly by taking the time to read them carefully. If a waiver clearly states the risks you are assuming and the rights you are relinquishing (such as the right to sue), understand it is possible that that waiver may be enforced by a court to bar any claim you might have otherwise brought against the other party to the agreement.

The information contained herein is not a substitute for legal advice. As specific questions arise, do not hesitate to contact us at Kaveny + Kroll Trial Lawyers, www.kavenykroll.com.

 

 

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Zachary Hofeld is a Trial Attorney with Kaveny + Kroll Trial Lawyers. Hofeld graduated from the University of Minnesota Law School. During that time, he served as Managing Editor of the Minnesota Journal of International Law, advanced to the William E. McGee National Civil Rights Moot Court Championship, earned his M.B.A. degree, and briefed, argued, and won a prominent immigration appeal before the U.S. Court of Appeals for the Sixth Circuit. Jasso Arangure v. Whitaker, 911 F.3d 333 (6th Cir. 2018).

Hofeld spent his undergraduate years at Harvard, where he studied Government, led the Harvard Cancer Society, and played Varsity Baseball.