What Do You Mean I Cannot Sue the Pharmacist For My Drug Reaction?

Visit our website at: http://www.rickgrossman.com/ for more information on your potential injury case.

Before the takeover of the retail pharmacy industry by mega drug store chains such as Walgreens and CVS, small local pharmacies were the place we all visited for our pharmaceutical needs.  They were often located in the same neighborhood as our family physician. The pharmacist knew the medical history of family members and the physician that wrote the prescription. That personal knowledge provided a safety net to patients that they were receiving the correct prescription drug, in both the proper dosage and duration. In fact the pharmacist was the last line of defense if a prescribing mistake took place.

For the most part the family owned pharmacy is a thing of the past.  Mega sized chain drugstores are where we take our prescriptions to be filled. The staff pharmacist is likely not a member of the local community and may move from store to store as he or she is needed. The pharmacy counters are manned by so called “pharmacy assistants” who lack the years of formal education required to become a licensed pharmacist. The customer rarely gets to talk to or even see the pharmacist for consultation. Gone is the personal family relationship between the pharmacist and the customer.

So what role does the pharmacist now play in your health care? The answer depends upon who you are talking to. From a retail advertising prospective, the mega chain pharmacy does it all to the point that their advice often replaces the need to rum to the doctor.  We have all seen and heard television commercials where the drug chain boasts about its sophisticated computer systems where dangerous drug interactions are prevented and detailed important prescribing information accompanies all prescriptions. On their face those advertisements sure make you feel safe and secure knowing that you are in good hands of a professional pharmacist but beware of what you see and hear.

Hidden from the general public, drug store chains take the legal position that they are only responsible to fill the prescription as written by the physician and nothing more. In other words if a physician writes a prescription for a drug that the pharmacist knows or should know may be lethal in dosage or duration he or she has absolutely no responsibility to call the physician and discuss the issue with the doctor. They further claim that the pharmacist need not know the condition from which the patient suffers that caused the prescription to be written in the first instance.  The drug stores base this position by claiming is that it may not interfere with the doctor patient relationship. Not everyone receives the same dosage and duration of a particular medication for a particular condition.  In other words the years of sophisticated education and training that a pharmacist must complete to become licensed should not be used.  If the drug stores claim is true then any clerk that can read a label could perform the function of a pharmacist. A catalog clerk or hardware counter person should be able to fill prescriptions. Is this the function that you want your pharmacist to assume?

So which point of view is the current state of the law in Illinois and many other states?  Unfortunately for the consumer the “hidden” position taken by the drug store chains is in fact the majority view. You might ask yourself how can the courts allow these stores to get away with it? The answer is a hybrid application of the “learned intermediary doctrine” which is favorite defense of drug manufacturers.  In summary the “doctrine” holds that it is up to the physician to determine whether to prescribe a particular drug, dosage and duration for a particular patient. Under those circumstances, the pharmaceutical company has an obligation to the physician and not the patient to supply all necessary warnings regarding the drug. If a patient is harmed by that drug he or she may not sue the drug manufacturer unless the prescribing physician first blames the drug manufacturer for not supplying sufficient information or warnings to him or her regarding the drug. The courts have extended the doctrine to pharmacists using the same reasoning.

In a recent case I argued that a dosage of a particular drug, taken for a specified duration would cause harm to any human regardless of their age, weight or gender. The court denied the drug store chains’ motion to dismiss since the pharmacist should have known this fact without input from the prescribing physician. As the case progresses I will be writing follow up articles on this evolving area of malpractice/products liability law. 

Rick Grossman

When Is Malpractice Actionable?

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As a Chicago malpractice injury attorney I am frequently contacted by potential clients requesting that I file a medical malpractice case on their behalf. During the initial interview I often quickly discover that the individual does not have a “compensable” case.

Most lay persons as well attorneys unfamiliar with medical malpractice litigation do not understand the difference between “technical malpractice” and what I refer to as “compensable malpractice”. The main difference between the two can best be explained by the following examples:

Client A has a pepperoni pizza for lunch. One hour later he suffers from terrible chest pain. He decides to visit a hospital emergency room. The physician takes a history from Client A, who tells him about the pizza and the resulting chest pain. The physician is quite busy with other patients. He does nothing more than a cursory examination and tells Client A that he is suffering from heartburn from the pizza. He prescribes over the counter “Tums’” or “Rolaids’s” and signs the discharge papers. Client A follows the instructions but the chest pains continue to intensify. Days later he returns to the emergency room and is given a full detailed examined by a second physician. The physician tells him that days before he had suffered a major heart attack but he will fully recover(and did recover) without complications.

Did the first physician commit medical malpractice when he failed to properly examine the patient and simply guessed that he suffered from heartburn as the victim of a pepperoni pizza? The short answer is probably yes but his actions only amounted to “technical malpractice” and not “compensable malpractice” The main distinction between the two is that Client A did not suffer any harm because of the first physicians malpractice. If on the other hand Client A suffered major additional permanent heart damage or died then the matter becomes a case of “compensable malpractice”. In other words malpractice without substantial permanent harm is effectively no malpractice at all. No experienced Chicago personal injury attorney would be willing to accept the case.

During the course of a given day “technical malpractice” occurs in most hospitals. Patients receive the wrong medications or diagnostic testing. Nurses may fail to promptly respond to call buttons, Doctors and staff may abandon their patients for long periods of time. Patients conditions are misdiagnosed and appropriate treatment withheld. They are often discharged too early and given the wrong instructions. Follow up appointments are not scheduled and the patient is not contacted by staff.

All of the foregoing acts constitute “technical malpractice” and only become “compensable malpractice” when substantial harm occurs. Potential clients' and referring attorneys" can certainly benefit by understanding this important distinction.

Rick Grossman

Is Teenage Distracted Driving Still a Significant Problem

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As a top Chicago personal injury attorney I am often faced with metting the families of those killed or seriously injured as a result of teenage distracted driving.  Alcohol, lack of sleep and bad weather all increase the danger of driving on Chicago’s roads. However, while drivers cannot control weather conditions, one risk — distracted driving — is a factor drivers have control over.

Distracted driving is especially dangerous for teenagers and young adults. Technology including constant communication between friends are the main culpret. Friends can divert a driver’s attention from the road and most teenagers are inexperieniced drivers. These are just a few reasons why teenagers, as the Daily Herald reports, are the most at-risk drivers in the country.

What Is Distracted Driving?

According to the U.S. Department of Transportation, there are three types of distractions a teenager may experience while driving:

• Visual: Removing the eyes from the road (e.g., reading a text or putting on makeup)
• Manual: Taking hands off the wheel (e.g., typing on a phone or changing the radio)
• Cognitive: Thinking about things other than driving (e.g., relationships or school)

Given these factors it is clear why teenagers are the highest risk group for car accidents in the country. They must balance demands from school and extracurricular activities, try to keep up on the latest gossip, and usually get less than the recommended amount of sleep.

Troubling Statistics

The National Highway Traffic Safety Administration offers these statistics to put the dangers of distracted driving into perspective:

• 11 adolescents are killed in a car crash daily
• 82 percent of teens use of cell phone while driving
• Texting increases the risk of an accident by 23 times
• Sending one text message is equal to an adult consuming four beers

These alarming statistics could continue for several pages and this data, as reported by the Daily Herald, is why many safety advocates suggest a nationwide graduated driver’s license system (GDL).

Graduated Driver’s License Systems

The Illinois Secretary of State indicates its GDL requires parental consent for a 15-year-old child to obtain a learners permit, and this permit must be held for a minimum of nine months. Upon turning 16, a parent or guardian may certify 50 hours of driving practice has been completed and the teen may take the initial licensing test. This stage has certain restrictions such as no nighttime driving and a prohibition on cell usage. Finally, when a teen turns 18 they may obtain a full license with minimum age restrictions.

If someone has been injured in a car accident as a result of distracted driving, please contact my office to discuss their rights and potential legal claims.

Rick Grossman

Did the Doctor Commit Malpractice?

Visit our website at: http://www.rickgrossman.com/ for more information on your potential injury case.

As a Chicago malpractice injury attorney I am frequently contacted by potential clients requesting that I file a medical malpractice case on their behalf. During the initial interview I often quickly discover that the individual does not have a “compensable” case.

Most lay persons as well attorneys unfamiliar with medical malpractice litigation do not understand the difference between “technical malpractice” and what I refer to as “compensable malpractice”. The main difference between the two can best be explained by the following examples:

Client A has a pepperoni pizza for lunch. One hour later he suffers from terrible chest pain. He decides to visit a hospital emergency room. The physician takes a history from Client A, who tells him about the pizza and the resulting chest pain. The physician is quite busy with other patients. He does nothing more than a cursory examination and tells Client A that he is suffering from heartburn from the pizza. He prescribes over the counter “Tums’” or “Rolaids’s” and signs the discharge papers. Client A follows the instructions but the chest pains continue to intensify. Days later he returns to the emergency room and is given a full detailed examined by a second physician. The physician tells him that days before he had suffered a major heart attack but he will fully recover(and did recover) without complications.

Did the first physician commit medical malpractice when he failed to properly examine the patient and simply guessed that he suffered from heartburn as the victim of a pepperoni pizza? The short answer is probably yes but his actions only amounted to “technical malpractice” and not “compensable malpractice” The main distinction between the two is that Client A did not suffer any harm because of the first physicians malpractice. If on the other hand Client A suffered major additional permanent heart damage or died then the matter becomes a case of “compensable malpractice”. In other words malpractice without substantial permanent harm is effectively no malpractice at all. No experienced Chicago personal injury attorney would be willing to accept the case.

During the course of a given day “technical malpractice” occurs in most hospitals. Patients receive the wrong medications or diagnostic testing. Nurses may fail to promptly respond to call buttons, Doctors and staff may abandon their patients for long periods of time. Patients conditions are misdiagnosed and appropriate treatment withheld. They are often discharged too early and given the wrong instructions. Follow up appointments are not scheduled and the patient is not contacted by staff.

All of the foregoing acts constitute “technical malpractice” and only become “compensable malpractice” when substantial harm occurs. Potential clients' and referring attorneys" can certainly benefit by understanding this important distinction.

Rick Grossman

Can the Jury See Photographs of my Car?

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The use of vehicle photographs that show minor damage to the plaintiff’s car is convincing evidence that most jurors find persuasive on the issue of whether the plaintiff was injured in the accident. Chicago injury attorneys have therefore attempted to avoid the admissions of these photographs wherever possible. In days gone by vehicle photographs were usually admitted in minor impact cases without the need for any additional foundational testimony from an expert.

In 2003 the Illinois Supreme Court held that defendants must have expert testimony when they sought to admit evidence of light impact photographs of the plaintiff’s vehicle depicting little or no damage. Following that decision the Cook County Circuit Court held that, absent expert testimony, the evidence was not relevant, and therefore, inadmissible to show that a correlation existed between the amount of damage to plaintiff’s vehicle and the extent of the plaintiff’s injuries. In affirming the Circuit Court, the Appellate Court dismissed the concept that there was a bright line rule regarding the relevancy and admissibility of vehicle photos to show a person’s lack of injury.

The case encouraged plaintiff’s attorneys in their efforts to deny defendants the use of vehicle photos yet their success has been limited and the trend is to allow the use of photos without expert testimony. In short courts have held that a lay juror can readily assess their relationship, if any, without expert interpretation.What plaintiff’s attorneys overlooked was that keeping photos of slight impacts from the eyes of jurors did the same for photos of heavy impacts.
 
The common thread among all of the cases dealing with this issue is that the trial court maintains wide discretion in admitting these photographs. The standard that they will employ is the time honored standard for the admission of relevant evidence which is now codified in Illinois in Supreme Court Rule 401 which states:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. IRE 401.

In making this determination, the courts tend to focus on the particular issues in the case. For example, if a plaintiff testifies that the accident was severe and that they were thrown around the vehicle violently, but the photographs show only minor scrapes to that plaintiff’s back bumper, a trial court is more likely to allow this evidence to rebut the lay testimony of the plaintiff.

The simplest way to at least have the photographs admitted is to offer them for the purpose of contesting liability. In almost every case, the defendant driver’s version of how the accident took place will differ from the plaintiff’s. If there is any basis to contest liability, no matter how slight, this should be factored in as an additional theory of relevance for the photographs. If the photographs are admitted and the plaintiff still objects and seeks an instruction from the court to limit the use of the photographs by the jury only on the issue of liability, that plaintiff runs the risk of over emphasizing the overall importance of the photographs to all issues in the case. Similar to asking someone to close their eyes and not think about a white elephant.

Another strategy developed by defense counsel for the admission of the vehicle photographs without expert testimony is to use them to rebut the testimony of a plaintiff regarding how the accident took place.

Finally, if a defense attorney suspects that a trial court is against the use of photos without expert testimony to correlate the relevancy of the minor damage to the plaintiff’s injury, a defense attorney may attempt to utilize these photos in the plaintiff’s own treating physicians’ evidence deposition as a means to contradict the basis of that physician’s opinion. Often times plaintiffs will tell the same exaggerated version of the accident to their treating physician or chiropractor and that will be relied upon by the physician or chiropractor as a basis in formulating their causation opinions. Showing photographs to these physicians of the lack of damage to the vehicle may cause the physician to alter their causation opinions or at the very least, indicate that the photographs contradict the plaintiff’s version of the accident. 

 So the conundrum remains unchanged as Chicago injury attorneys continue in their efforts to manipulate the system


Rick Grossman

What is a Dram Shop?

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A dram shop is a legal term referring to a bar, tavern or the like
where alcoholic beverages are sold. Traditionally, it referred to a shop where spirits were sold by the dram, a small unit of liquid.

A question often asked of me as a Chicago personal injury attorney is whether a tavern or bar is legally liable for the injuries caused to 3rd parties by intoxicated patrons? In Illinois the short answer is yes with many limitations. At common law dram shop liability did not exist. It is a creature of the legislature's enactment of a statute. The public policy behind the law holds that when one balances the economic burden of dram shop owners versus those injured by the actions of the intoxicated, the rights of the injured win out. In effect dram shop insurance becomes a taverns cost of doing business in Illinois.

The Illinois dram shop law holds that when the following is proven by a preponderance of the evidence the injured is entitled to relief.

• 1. The dram shop sold alcohol to the person causing the injury,
• 2. The alcohol sold by the dram shop caused or materially contributed to the person's intoxication,
• 3. The intoxication was the proximate cause of the plaintiff's injuries,

The law is enforced against those who sold or furnished the alcohol to an inticated person and against those that rent or lease the property to the dram shop. There is also a special provision holding any adult that rents a hotel room for minors that he or she knows will be used to drink alcohol may also be held liable for harm caused by the minors.

At first you might assume that the injured are entitled to a full and complete damage award as if they were injured by someone’s negligent conduct. Unfortunately, the downside of the legislatures creation of the law is that it comes with a damage cap.

Causes of action for direct injury from the actions of an intoxicated patron which occur after January 20, 2011 may not exceed $61,151.39.

Actions for “loss of means of support” and or “loss of society”, may not exceed $74,740.59

The Illinois Dram Shop Act is intrastate in nature, in that alcohol served in Illinois which causes injury in Wisconsin does not constitute a violation. A tavern located near a state line can sell large quantities of alcohol to a person, carry them to their car, drive the car to the state line yet they are not liable for the death and destruction that may follow. On the other hand there would be liability if the neighboring state has a similar dram shop law.

Rick Grossman

The Anatomy of a Chicago Personal Injury Lawsuit

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Clients often tell me that they have never been involved in a personal injury lawsuit asking, “so how does it work”. The following is a guide for Chicago victims of personal injury to enable them to better understand the process and what steps their injury attorney will generally follow.

In Cook County, Chicago, Illinois, most civil actions are instituted in the circuit courts, law division, which handles personal injury claims. A “complaint”, is the first pleading to be filed with the clerk of the court which sets forth a statement of the Plaintiff's claim. Illinois is a “fact pleading” state which means that the rules of civil procedure require a plaintiff to set forth sufficient specific facts to state a claim for relief. There is a current filing fee of $295.00.

 A “complaint”, must include a statement of the defendant’s duty, his breach of that duty, and causing a specific injury to the plaintiff. At the end of a “complaint”, a demand is usually included requesting the relief sought. In Cook County, Chicago, Illinois a plaintiff is only allowed to request money damages in a sum in excess of the jurisdictional minimum amount which is $50,000. The first time that the plaintiff mentions a request for a specific dollar amount is through his attorney during closing argument. A “summons”, is then issued by the clerk of the court at the same time the “complaint”, is filed. Its purpose is to notify the defendant that he or she is being sued and direct the defendant to respond in a timely fashion to the allegations of the Complaint. The service of the “summons” along with the “complaint”, is typically performed by the sheriff of the county in which the defendant resides. The sheriff also charges a fee to perfect the service usually based upon the distance travelled from his office. The plaintiff must file the lawsuit in the county where the accident took place or where a defendant resides. The term “jurisdiction” may refer to territorial jurisdiction, subject matter jurisdiction, or jurisdiction over the person. The requirements of both subject matter and personal jurisdiction must both be met before the Court has the authority to judge the rights of the parties involved in the dispute. The “complaint”, must also be filed in the proper “venue”, which is the place where a case may be heard. “Venue” is location, whereas jurisdiction is the power of the Court to decide the merits of a case. In some situations, the Plaintiff may have more than one choice of “venue”. If so, the attorney tends to choose the venue which is most advantageous to the client and the case.

 After service of the “complaint” and “summons”, the Defendant must serve and file an “answer” to the “complaint” within a specified time. The Answer functions as a response to the Complaint. Special defenses known as, “affirmative Defenses”, must be asserted in the initial “answer”. The part of the “answer” which responds to the “complaint” must consist of admissions or denials to the allegations.

 Once the claims and defenses have been completed by the “complaint” and “answer”, the “discovery” process begins. This is the most important stage of the proceedings where cases are often won or lost. The primary purpose of any “discovery” is to learn the facts of the case and to determine the evidence that you desire to use at trial. “interrogatories”, which are written questions from one party to another, must be answered under oath. “Requests to produce documents” are used to obtain tangible materials including, photos, medical records, witness statements and digital data which is either helpful or detrimental to one side or the other. “Depositions” of witnesses follow which are taken under oath of the parties or witnesses. “Depositions”, are a method of evaluating your opponent should the case proceed to trial. They also pin down the testimony of witnesses.

Sometimes a case can be resolved by dispositive motions, such as a Motion for “Summary Judgment”. “Summary Judgments" are not commonly granted because of the presence of material issues of fact which prevent a Court from concluding that one party will succeed as a matter of law. Depending upon the proceeding, the trier of fact could be a jury, or a judge.

“Mediation” has become a popular means of dispute resolution. The parties generally must agree to engage in “Mediation”, which is of course non-binding. The hope is that a neutral third-party mediator will be able resolve the dispute between the parties by settlement, rather than a trial. Mediators are frequently experienced retired judges or lawyers. Both parties usually contribute equally to the fees of the Mediator. If the matter is not resolved by “mediation” the case is usually scheduled for a jury trial.

Once the selection of a jury of 12 has been completed, each lawyer is given an opportunity to make an “opening statement” which, when properly used, sets forth what the evidence in the case will show. This should preview the case from each party's point of view and typically is confined to a concise statement of the facts that each party proposes to establish by evidence.

The evidence offered at a trial will consist of the testimony of witnesses, documentary evidence (such as business records), and demonstrative evidence (often including photographs, diagrams and/or charts).

During a trial, each side, or perhaps both sides, will often rely upon expert opinion testimony. To be admissible, the Court, in its discretion, will determine whether such expert opinion would be helpful to the jury in understanding the issues presented in a case. A personal injury expert witness is usually someone who possesses skill or knowledge in a particular field superior to that of people in general.

At the conclusion of the presentation of evidence by both sides, the attorneys may submit requested jury instructions of law to the judge, but it is the judge's obligation to make the final determination as to the content of the jury instructions intended to instruct the jury of the applicable law.


Closing arguments allow the Chicago trial attorneys for each party to try to convince the jury of his client's position. Obviously, the aim of the attorney is to secure a favorable verdict for his client. Although lawyers have many theories on how to persuade a jury of the correctness of their client's position, most lawyers strive to make the jury want to find for his client and to tell the jury how to find for his client.


Once a jury reaches its verdict, a judgment order is presented to the trial judge and ultimately a judgment is entered in the case. The judgment is subject to post-trial motions and possible appeal.

Rick Grossman

The Delicate Balance Between a Chiropractor and the Soft Tissue Personal Injury Claim

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Assume that an individual is involved in a personal injury auto accident and sustains a “whiplash” type injury to their neck or back. No bones are broken but pain and stiffness follow.  They were of the belief that the injury would go away in a few days but unfortunately it has not. A friend or acquaintance then suggests that they make an appointment to see a chiropractor. They may have also have consulted with a Chicago personal injury attorney to represent them for their injuries. 

From this point in time the overall situation gets a bit tricky.  Liability insurance companies are typically not impressed by soft tissue injuries that are treated by chiropractors.  The companies are usually of the belief that the patient has minimal injuries which should clear up in a few weeks without any treatment. The problem of course is if the injured seeks no treatment then their claim is not worthy of compensation.  On the other hand if they obtain minimally beneficial treatment from a chiropractor over an extended period of time their case is simply a “phony”.

Chiropractors are not medical doctors. The treatments they provide are expensive and administered frequently. Many chiropractors aggressively target their marketing towards accident victims. The perception of many in the legal and insurance professions is that while chiropractic treatment may provide temporary pain relief (as would, say, a good massage), ultimately the cost of the treatment vastly exceeds the benefits provided.

If you have suffered a back or neck injury in an auto crash,  most top Chicago personal injury attorneys recommend that you be examined by a medical doctor before you even consider seeing a chiropractor. If you have a serious injury, such as a herniated disc, torn tissues or broken bones a medical doctor will probably treat you best. This may involve a referral to an orthopedic or neurosurgeon . If you are in pain, a medical doctor can give you a prescription for the appropriate medication (chiropractors cannot prescribe medication but love to sell vitamins ). From a lawsuit perspective, it looks much better if you go to a family doctor first, rather than immediately seeking a chiropractor. True or not, it is a widely held belief in the personal injury field that people who are really hurt go to medical doctors and people who just want money go to chiropractors. See a medical doctor first. If you are cleared to see a chiropractor, you can decide after that if chiropractic care is right for you.

The real problem that follows is to determine how much Chiropractic care to receive?  Soft tissue cases are most often not worth very much. While the pain you feel from your soft tissue injury can be intense, and sometimes permanent, there are no sophisticated tests, like MRIs or CT scans, that can prove the existence, much less the degree, of your soft tissue injury. Without the objective evidence provided by these types of scans to back up your claim, your subjective complaints will often be the only proof of how badly you are hurt. Subjective complaints by a claimant without hard medical evidence are usually not well received by either insurance adjusters or juries. In these types of cases, the chiropractor can be both your best friend and worst enemy.

Most chiropractors are honorable professionals who care about the health of their patients.  On the other hand many others see an auto accident as an opportunity to make money by over treating the patient.  They will request that the patient be treated by then 4 or more times a week. Minimally improvement occurs and the treatment continues on and on.  The evil Chiropractor tells the patient to not worry about the bill since his fee will come out of the patient’s personal injury settlement  through a lien served upon the attorney and personal injury insurance company.  What the patient is not told is that the amount of the bills will exceed the value of the personal injury claim! When it comes time to settle the personal injury claim the claimant is told that he will receive little or nothing after the Chiropractor is paid.

So what is the Chicago personal injury victim to do?  The single most important part is the fact that healing from a soft tissue injury is not simply Chiropractic care but rather a combination of the care plus the passage of time to allow the injury to heal.  Do not allow the Chiropractor to continue to run the meter on you when such treatment is not providing true effective relief.  Juries can usually tell when treatment has been given for good health versus the wallet. If they determine that you have been over treated,  an otherwise valid claim can be lost.

Remember, that life is all about balance, maintain it and you will succeed.

Rick Grossman

How do Insurance Companies Value Automobile Personal Injury Claims

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As Chicago’s Top Personal Injury law firm we are often asked how insurance companies determine how much to pay to settle a personal injury claim.  Many companies use a computer software program known as Colossus. The program takes all of the feel and experience of the insurance adjuster and replaces it with a mechanical process that fails to consider the intangibles or non-legal issues  which are often the most important part of setting values. These would include whether injured party is attractive or ugly, smart or dumb, likeable or unlikeable and so on. Often jurors decide cases for reasons other than the law. The insurance industry maintains that the software is a useful tool because it considers a great many factors, and the settlement values are just a range for use in any way the insurer wishes. Plaintiffs' attorneys, including Steinberg Burtker & Grossman, Ltd. on the other hand, maintain that the software is a device that permits the insurance companies to discharge its adjusters and save labor costs. It is a penny wise dollar foolish concept that the insurance company has adhered to without much success.

A computer cannot quantify your emotional distress, or the loss of enjoyment of life because you no longer can take long walks with your spouse, or the pain and despair you suffer each day because your work hurts you and interferes with your healing? Unless all of your circumstances are included, is it fair to quantify all you have suffered and reduce to a dollar value based upon some factors that may or may not reflect your condition?

That is the pathetic Colossus software. It is an attempt by some insurance companies to value injury claims with no consideration at all given to whether or not a jury might award you more than the "average" claimant. They plug in such things as damage to the vehicles and expected length of treatment and allowable cost of treatment and many other variables and then come up with a number for the value of the personal injury claim. No consideration is given to the extent of your actual pain and suffering.

No consideration whatsoever is given to the fact that you might have a job where your injuries cause continued pain, or which slows your healing (consider, for example bank guard, or a person who has to stand all shift). They do not know, nor do they care, that you cannot hold your child because of the pain in your neck and back. There is no room in the formula for such information.

But the problem is that in our system, it is the jury that is supposed to be the basis for determining the value of a claim, and juries do tend to listen to and consider many of the factors that Colossus ignores. Juries do make a distinction based upon whether or not they think the plaintiff is believable, or has attributes we value in our society, such as the virtues of honesty, perseverance, humility, or patience, for example.

Colossus has no way to evaluate those positive traits, so if you are possessed of anything positive that is likely to bring you a larger jury verdict, it will not be included in the Colossus valuation. You will have become a magnetic image, no different in regard to your positive characteristics than the magnetic image of any other of thousands of claimants with injuries similar to yours.

The real problem with Colossus is that the adjuster for your insurance claim is just about stuck with the results that come out of the computer. Of course the insurance company will deny this, and will tell the media that Colossus is nothing more than an evaluation tool. It just gives a starting point, they say, from which the adjuster can move up if the facts of the case merit it. This absolutely false.

The Colossus result is a position that is increasingly locked in, and the adjuster who wishes to vary from it because of the facts of an unusual case, had better be ready to justify it. Furthermore, how many times do you think any adjuster trying to make the cut at an insurance company is going to go to her boss and ask for permission to exceed the Colossus determination of value? Considering that her evaluation and merit pay will be based upon how "efficiently" (read that to mean cheaply, or "hard-line") she settles her cases, do you think she will ever go to her boss to ask for more money than allowed by Colossus? Not very likely. In fact the qualifications of an insurance adjuster has dropped from a skilled to unskilled position. Chicago Injury Attorneys no longer even bother talking to them to settle claims.

Colossus is a well-kept secret by the insurance companies that use it, and they will likely not tell you if they have licensed the software. It is the market leader bodily injury claims-handling software used by an increasing number of insurance companies in the world. According to Computer Sciences Corporation, the company which produces Colossus, it is used by more than 50 per cent of the nation's claim adjusters and by more than 300 insurance companies.

Colossus is regularly beaten by skilled Chicago trial lawyers.

Rick Grossman

Federal Efforts at Tort Reform

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Last year, the Illinois Supreme Court rejected damage caps in medical malpractice cases. Now federal legislation has been introduced seeking to limit non-economic damages in nursing home negligence and medical malpractice claims while shortening the statute of limitations. This of course represents politicians efforts to once again cater to the insurance lobby. This is of course contrary to objective evidence that such measures have a negligible effect on overall costs while drastically curtailing individual legal rights.


The Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act of 2011 (H.R. 5), introduced in January, would also restrict liability in cases involving unsafe drugs and medical devices. This results from the efforts of the drug manufacturer lobby. The primary feature of the bill is a $250,000 cap on non-economic damages. But this rush to radically alter America's system of civil liability is not without vocal opponents.


Approximately 24 state and national consumer and public interest groups recently voiced their strong opposition to the proposed law in a letter to the House Judiciary Committee. The group roundly condemned the short-sighted strategies outlined in the bill, arguing that "caps on non-economic damages do nothing but stop the most severely injured patients from getting adequate compensation." But other aspects of the bill are also very troubling:
H.R. 5 would impose a statute of limitations that is much more restrictive than current provisions in many states
The bill eliminates the concept of joint and several liability, which allows a plaintiff to obtain full damages from any single defendant who is fully responsible for an injury
The proposed HEALTH Act of 2011 limits contingency fee arrangements, which are the only means by which most citizens can afford sufficient representation to oppose insurance company lawyers

H.R. 5 would impose a strict new standard for proof of the need for punitive damages, which are often the only way to make the most negligent providers change their ways

Perhaps worst of all, such federal reforms would impose from above the types of "tort reform" that have already been definitively rejected in many states. The authors of the letter conclude with a powerful statement: "Health care reform should not be accomplished by taking away the legal rights of patients who are injured through no fault of their own, or reducing the accountability of those who commit wrongdoing." Every concerned American should contact their Senators and Congressmen to express similar views.

Steinberg Burtker & Grossman, Chicago’s top personal injury attorneys continue to fight against tort reform and protect victims’ rights. Victims of medical and nursing home malpractice deserve full compensation for the negligent acts of others.

Rick Grossman

What is Alternative Dispute Resolution or “ADR”?

Visit our website at: http://www.rickgrossman.com/ for more information on your potential injury case

As a Chicago personal injury attorney with many years of experience, I have filed lawsuits against countless defendants, alleging negligence, medical malpractice, defective products and every other tort imaginable. Invariably, the attorneys hired by the defendant’s insurance company file what is known as a “jury demand”.  What this means is that the defendant insists that the case be tried before a jury and not just a judge. The reason for this tactic is to make it as difficult and expensive as possible for the plaintiff to win. In conservative jurisdictions such as DuPage County, Illinois, the insurance companies are of the belief that these “anti lawsuit” residents are more likely to send the plaintiff home without compensation on that basis alone.  In more liberal counties such as Cook, (Chicago) Illinois the defense view is just the opposite. Regardless of the location, medical malpractice insurance companies want their cases tried before a jury, thinking that it is much harder for a plaintiff to convince 12 jurors to award them money as compared to one judge.

During these difficult economic times both insurance companies and plaintiff’s attorneys have become extremely cost conscious which has created a “cottage industry” known as Alternative Dispute Resolution or “ADR”.  ADR is basically a private “court” where highly experienced retired judges are hired to act as arbitrators.  The parties to a personal injury lawsuit pending in the official court system agree to dismiss the lawsuit and submit it to ADR.  The cost of the proceeding including the arbitrators fees are generally split between the parties.

You might ask yourself, given the fact that the judges of our court system are paid a salary by the taxpayers why should I pay a retired judge to perform the same process?  The following is a list of the many reasons why each side is drawn to this new Chicago injury practice:

1.       The parties are able to select a judge that they both agree upon.  This is very important as predictability replaces “pot luck”.

2.       The arbitration is scheduled on a date convenient to all as opposed to the crowded court system selecting a date agreeable to it!

3.       The rules of evidence are relaxed which saves a tremendous amount of time and money.  Foundational and non-essential  witnesses are avoided, medical and other records are routinely submitted to the arbitrator for consideration.

4.       The expert witness testimony of physicians normally procured at great expense is avoided.

5.       The emotions of jurors which can help or hurt both sides are avoided.

6.       Plaintiffs’ attorneys trial time and defense legal fees are greatly reduced.

7.       The prejudicial attitudes of jurors are eliminated.

8.       Extreme verdicts in either direction disappear.

There is generally no appeal of the arbitrator’s decision which can be good or bad depending upon the result.  In either case the decision is final and the parties go on with their lives.

The next time you consider going to trial in a personal injury case remember that ADR may be “the way to go”?

Rick Grossman

"We guarantee that we will not charge you a fee if we do not win your case"

Visit our website at: http://www.rickgrossman.com/ for more information on your potential injury case.

When I entered the practice of  law more than 35 years ago, Chicago personal injury lawyers were not permitted to even suggest that you hire them for fear of being accused of solicitation. In short, a Chicago injury lawyer was expected to sit in his office and wait for the telephone to ring. New clients resulted from the referrals of former injured clients or other attorneys.

As the years progressed Chicago injury attorneys began advertising their services in newspapers. 800 telephone numbers were activated to allow the public to call in and ask legal questions for free.  This technique got around the solicitation fear as the attorney could always state that there was no solicitation since the individual called them!  The next step was the television commercial in which attorneys generally offered their services to the public.  Since there was no one on one solicitation, the commercial passed the ethical standards of the day.

The next step in legal advertising was of course the internet. One day a potential client came to my office seeking to hire a personal injury attorney to redress the death of his father in an auto accident. He had heard that I was a highly experienced trial lawyer but refused to retain me since I did not have a web page.  When I asked him to explain his decision, he stated that only the best trial lawyers have web pages and without such a page I was not one of them. I was shocked by the statement, given my years of successfully prosecuting Chicago personal injury and medical malpractice suits on behalf of my clients’.  The very next day I began the development of my web page!

The latest rage for those Chicago personal injury attorneys that flood the airways with commercials is to advertise "We guarantee to not charge you a fee if we do not win your case.”

These attorneys act is if they had just reinvented the wheel! Given the fact that personal injury attorneys have always been retained on a contingent fee basis, they have never charged a fee without a successful recovery. Is this a good reason that you should hire this Chicago injury attorney?

Since (apparently) all good Chicago trial attorneys have web pages how does a client select the right one? Well, you now know that it should not be based upon the representation that: "We Guarantee that we will not charge you a fee if we do not win your case."

Rick Grossman

What do you mean there is a Lien against my Personal Injury Settlement?

Visit our website at: http://www.rickgrossman.com/ for more information on your potential injury case.

When I settle a personal injury case for one of my clients what follows is a “tug of war” with a medical provider, health insurance company and/or Medicare.  These entities seek to recover monies paid for the medical services rendered to the client in connection with the injuries suffered in the personal injury accident.  They possess a “lien” against the settlement proceeds recovered on behalf of the injured.

When informed of the lien the client usually asks me: “Why do I have to pay them anything”? The answer is found in the insurance policies,  Illinois statutes (rules), case decisions or federal statutes. In effect the laws protect doctors, hospitals, health insurance companies and/or Medicare from either unpaid medical bills or reimbursement for bills already paid. The concept is to prevent the client from obtaining a double recovery for medical bills paid by others. The entities take the position that since they paid your bills, any monies that you recover from the responsible party should be repaid to them first before you receive any balance. 

Liens are usually served upon the attorney for the injured and the insurance company representing the responsible party.  Should an attorney fail to honor the lien, he or she could be held personally responsible for the payment.  If any of the medical bills were paid by Medicare it has what is known as a “super lien”. This means that the burden is upon the parties to the personal injury claim to request a lien from Medicare before distributing the settlement funds or face personal liability to the federal government.
 
As a Chicago injury attorney, the existence of a lien often makes it difficult to settle a claim. In the case of a large financial recovery there is enough money available to make everyone happy. However in many claims the client may have been partially at fault for causing an accident, therefore the settlement offered by a liability insurance company may be justifiable low. If the lien amount exceeds the settlement offered what is a lawyer to do?  The answer lies in the experience and skill of the injury attorney to negotiate a reduction in the amount of the reimbursement.  You may then ask yourself why should a lienholder reduce its’ lien?  The reason is quite simple since reimbursement is only due if the client wins there case and recovers money.  Without a favorable recover no monies are due the lienholder and it walks away with nothing.  My tried and true technique is to convince the lienholder that the my client’s case is so weak that if it were tried before a jury we would lose leaving them no recovery. I also advise them that my client has no incentive to settle their case if they know that they will receive little or no money.  The usual result is a compromise three way settlement where everyone walks away with money in their pockets.
 
The law also provides the client with some level of protection by limiting the percentage of money that may be taken from a settlement to reimburse lienholders. Thanks to this rule of law there will usually be some level of compensation available to the client regardless of the attitude of the lienholders.

The good news is that your case has been settled but the bad news is the existence of a "lien".

Rick Grossman