Justia Lawyer Rating for Robert D. Kreisman

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The defendant Southern Illinois Hospital Services d/b/a Herrin Hospital (Herrin Hospital) appealed from the trial court’s July 25, 2014 order adjudicating liens and distributing the settlement proceeds from an injury case. Herrin Hospital contended that the trial judge improperly included Medicare, Medicare Part D and Medicaid “liens” in the total amount of liens subject to the 40% cap mandated by the Illinois Healthcare Services Lien Act. Because the court allowed 100% reimbursement of the Medicare and Medicaid liens, Herrin Hospital’s reimbursement was substantially decreased.

In addition, Herrin Hospital claimed that the trial court improperly required the lien holders to pay the plaintiff Edwin McKim’s cost of suit pursuant to the Common Fund Doctrine. The Illinois Appellate Court — in its decision — found that the judgment ordered distributing the settlement was contrary to the plain language of the Healthcare Services Lien Act and is in conflict with Medicare’s secondary payer provision and the Illinois Public Aid Code. Additionally, the trial court’s assessment of court costs to Herrin Hospital and Williamson County Ambulance does not comply with the Illinois Supreme Court’s decisions on this topic.

The appeal involved the adjudication of liens under the Healthcare Services Lien Act (770 ILCS 23/1 et seq.). The Healthcare Services Lien Act limits the total amount of liens to 40% of the verdict. At issue is whether bills owed to Medicare, Medicare Part D and Medicaid can be included in the 40% cap under the Healthcare Services Lien Act. Also at issue is whether the 40% of the settlement is a “common fund” created for the benefit of the lienholders and whether the plaintiff’s attorney’s costs should be paid by the lienholders from their pro rata shares of the 40% of the settlement.

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Gilbert Gail Gerth was riding his lawnmower down a street when he was rear-ended by a pickup truck. The incident killed Gerth. At the time of the collision, the defendant pickup owner and driver, Gary Sachau, was insured under an automobile insurance policy with a $30,000 liability limit.

Gerth had an automobile insurance policy as well with an underinsured-motorist liability limit of $100,000 per person.  In addition, Gerth had an umbrella insurance policy with Grinnell Select Insurance Co. with an underinsured-motorist liability limit of $1 million per accident.

Dawn Goldstein, the executor of the estate for Gilbert Gerth, settled the claim against Sachau for $30,000, and her underinsured claim against Hartford for $100,000 minus $30,000 recovered from the settlement with Sachau.

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In 2006, Kipling Development Corp. was building a home in Will County, Ill. Kipling was the general contractor on the job.  The firm hired subcontractors to handle specific pieces of the job, including Speed-Drywall and United Floor Covering.

A service technician, Brian Harwell, entered the worksite to replace a furnace filter, using the stairs leading to the first floor to the basement. In the process, the stairs collapsed beneath Harwell, sending him falling into the basement. He sustained serious injuries and filed a lawsuit against Kipling as the general contractor of the building site.

In the lawsuit, it was alleged that Kipling was negligent in choosing not to properly supervise and direct construction and failing to furnish Harwell with a safe workplace and a safe stairway. In addition, Harwell also sued Speed-Drywall and United Floor Covering, claiming that they had modified or failed to secure the stairwell.

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Kerry Hogland was 36 years old when driving her sedan on a highway near Fredericktown, Mo. An employee of Town & Country Grocers of Fredericktown drove onto the highway from an on-ramp. The driver of the Town & Country Grocers vehicle did not heed a stop sign at the end of the ramp and crashed broadside into Hogland’s sedan on the passenger side.

Hogland’s vehicle spun out of control and landed in a field next to the highway.

She suffered an intracranial hemorrhage, an epidural hematoma that necessitated a craniotomy and a skull fracture that left her deaf in her right ear. A craniotomy is a surgical procedure where a bone flap is removed from the skull to allow access to the brain. The surgery removes a part of the bone from the skull to expose the brain. The bone flap is temporarily removed and then replaced after the brain surgery is completed.  Obviously, this is a very serious and dangerous surgery.

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In the opinion written by the Illinois Appellate Court for the 4th District, the appellate court upheld the right of an injured plaintiff to recover the full amount of medical expenses if that amount had been written off by the medical provider.

In the underlying case, a Coles County jury entered a verdict in favor of the plaintiff Harold Miller for $133,347 for medical expenses in his July 2015 medical-malpractice trial. The 5th Judicial Circuit Court judge reduced the verdict by $91,724 when the defendant hospital and doctor argued that such a number represented an amount of money that neither Miller nor his health-care provider had a right to recover since it was written off in his medical bills.

The defendants brought their motion to reduce the medical expenses award under Section 2-1205 of the Illinois Code of Civil Procedure. The statute provides that recovery amounts can be reduced by up to 100% of the benefits provided for medical, hospital, nursing or care-taking charges that have either already been paid or become payable to the injured party.

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On April 12, 2012, Jennifer Hawkins was stopped at a red light on westbound 127th Street in Lemont, Ill.  The defendant, 18-year-old Nicole Barrett, rear-ended the car right behind Hawkins, which pushed that car into Hawkins’s car. The force of the impact totaled the middle vehicle (a Chevy Suburban) and caused nearly $5,000 in property damage to Hawkins’s Toyota Matrix. The crash also resulted in $4,727 in property damage to Barrett’s minivan.

Hawkins, 35, filed this lawsuit against Barrett maintaining that the crash caused her to have neck and lower back sprains, a protruding disc at C5-6, cervical and lumbar facet syndrome, cervical and lumbar radiculopathy and aggravation of her scoliosis, or curvature of the spine. Hawkins underwent multiple facet joint injections, several nerve blocks and cervical and lumbar radiofrequency ablation treatment. She introduced evidence of $227,563 of past medical expenses and $6,589 in lost wages where she worked as a cashier.

Her treating physician testified that she was a candidate for a future spinal cord stimulator implant, lumbar fusion and continued interventional pain management treatment.

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Dennis Seay worked for Daniel Construction Co., which was a contractor for Celanese Corp. From 1971 through 1980, he did maintenance work at the Celanese polyester fiber plant located in Spartanburg, S.C. Seay was exposed to asbestos-containing products while working at Celanese. The different jobs that Seay had included handling various brands of gaskets, packing and insulation manufactured by John Crane Inc. and others for use on and in equipment throughout the Celanese plant.

In 2013, Seay at age 69 was diagnosed with mesothelioma. Seay underwent 3 procedures to reduce the size of his tumor and multiple procedures to drain fluid from his lung, which had collapsed on various occasions. Seay unfortunately died the following year at age 70. He was survived by his wife, two adult sons and one adult daughter.

Seay’s daughter, individually and on behalf of his estate and his wife, sued Celanese Corp. alleging that the company was aware of exposure to asbestos products used throughout the plant but chose not to warn of the dangers or to take other steps to protect workers like Seay. The Seay family contended that Celanese was in complete control of the plant and was responsible for auditing the safety program provided by Seay’s employer to ensure that it was adequate.

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The 7th Circuit Court of Appeals in Chicago has affirmed a district court decision where sanctions were allowed in the form of attorney fees. The court of appeals stated that under Federal Rule 37, sanctions may include an order to pay the amount of reasonable expenses incurred in preparing the motion for sanctions, including attorney fees.

In March 2012, Angel Houston sued Hyatt Corp. and the Hyatt Regency Inn for breach of contract, intentional misconduct and negligence. The lawsuit arose out of injuries Houston suffered after falling at the downtown Indianapolis Hyatt Hotel during a hotel-sponsored New Year’s Eve party on Dec. 31, 2010.

Houston claimed that Hyatt chose not to provide a safe and secure environment for the party and that this failure was the proximate cause of her injuries. Damages were sought in excess of $1 million.

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The Illinois Supreme Court case of Kotecki v. Cyclops Welding, 146 Ill.2d 155 (1991) is the decision by the court that stands for the law that an employer may avoid contribution liability by waiving its lien under Section 5(b) of the Workers’ Compensation Act. This is in reference to the so-called “Kotecki cap” and affirmative defense that an employer has pleaded and then proved at trial. The question is: Can the employer invoke Kotecki with a post-judgment motion supported by affidavits specifying the amount of benefits it paid to the injured employee?

This is the issue that was taken up by the Illinois Appellate Court for the 3rd District in this Illinois case. Nacin Burhmester was injured while he was working for L.J. Keefe Co. Burhmester prevailed in a trial and received a verdict of $534,608 against Steve Spiess Construction Co.

Spiess in turn sued Keefe for contribution in a third-party action. The answer to the contribution claim by Keefe included an affirmative defense based on Kotecki.  Although Keefe paid benefits to Burhmester totaling $95,487 under the workers’ compensation policy of insurance, it did not present any evidence on this defense during the contribution trial.

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The United States Court of Appeals for the Seventh Circuit in Chicago has affirmed in part and reversed in part the district court’s decision regarding a third-party lawsuit.

Sam Chee was driving with his wife, Toni Chee, in August 2010 when their car slammed into a tree. Toni was seriously injured and taken to a hospital where she died within a week. The estate of Toni Chee filed two lawsuits. One was against Sam Chee for negligent driving and another was against the hospital and the attending physicians claiming medical negligence was a cause of Toni’s death.

The defendants in the medical malpractice claim filed a third-party action against Sam Chee, seeking contribution or other compensation from him should the medical defendants be held liable to the estate.

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