Lien Frustration

The concept of a "lien" is by its very nature difficult to comprehend.  What's more is that people suffering from personal injuries are generally not in a position to tackle the complexities of Illinois lien laws. Hopefully this post will provide some insight into the often confusing territory of liens involved in personal injury cases.

According to Blacks Law Dictionary a Lien is: "a legal right or interest that a creditor has in another's property, lasting usually until a debt or duty that it secures is satisfied."  In the personal injury context, liens attach to an individuals personal injury claim and the expected recovery.

One of the most common types of liens involved in personal injury cases are health care provider liens.    A valid health care provider lien is created when medical services are rendered and notice is served.  The lien subsequently attaches to any verdict, judgment or settlement reached stemming from the cause of action.  In other words, your heath care provider will get a portion of your personal injury recovery.

It is important to note that the total amount of all health care provider liens cannot exceed 40% of the verdict, judgment or settlment stemming from the cause of action.

Aside from health care provider liens there are numerous other types of liens, including, but not limited to:

• Medicare liens


• Workers' Compensation Liens


• Illinois Department of Healthcare and Family Services Liens


• Attorneys Liens

Incurring a personal injury can be a devastating event.   In addition to the physical ramifications of a personal injury, numerous other factors create stress and inconvenience. In the unfortunate event of a personal injury, I suggest you contact a personal injury attorney.  Nevertheless, hopefully the information contained in this post will help alleviate some of the stress you might feel when you receive notice of a lien relating to your personal injury.

Survival vs. Wrongful Death

The term "wrongful death" is actually a bit of a misnomer.  In the unfortunate event that someone suffers an untimely death, one would intuitively think that the appropriate claim to file would be a "wrongful death" claim, to recover for losses suffered by the individual that suffered the untimely death.

Under Illinois statutory law, however, the Wrongful Death Act does not recover for damages incurred by the deceased.  Wrongful death claims recover for losses sustained by the spouse and the next of kin of the individual who suffered a wrongful death. 740 ILCS 180/0.01

On the other hand, a survival action is a claim brought in order to recover for personal injury and other property losses suffered by an individual before succumbing their injuries.  A personal injury attorney will ensure that all appropriate claims are made in order to ensure that victims of personal injuries recover the compensation they are owed.

Did I settle too soon? Investigating all applicable insurance coverage.

A person who recently went through the personal injury claims process asked me whether she settled too soon.   She was involved in a traffic collision and her medical expenses and lost wages were in the area of $22,000.  She had a friend who was an attorney specializing in patent law, and she asked her friend to take care of the case for her.

Because the driver who hit her only had $25,000 in liability insurance, the patent attorney settled it for $25,000.  However, this result still left the woman wondering.

In this situation, I would've recommended that the woman consult a personal injury attorney. More likely than not, the woman would've been entitled to significantly more than $25,000 considering factors like future medical expenses, loss of future wages, pain and suffering, and loss of enjoyment of life.  I didn't know enough about the facts of the woman's particular case, but it seemed to me that none of these factors were taken into account in calculating the $22,000.

It is possible that $25,000 was the maximum amount that could've been recovered.  However, it is always necessary to determine the availability of all possible insurance coverage.  For example, when determining the policy limits of an opposing party, one should inquire about excess/umbrella insurance, which insurance companies often hesitate to disclose.  Also, if,  a would be defendant is underinsured, the plaintiff's own insurance policy should have been notified of an underinsured motorist claim.  Even if it isn't certain whether underinsured coverage will apply, notice should still be given to the plaintiff's insurance company.

This is but a sample of the avenues the woman could have looked for recovery.  It is essential to hire an attorney who knows personal injury law in order to increase  recovery.

You’re injured, and you’re partially at fault–Do you still have apersonal injury claim?

The short answer to this question is: it depends.

Illinois law concerning fault and recovery has gone through several serious transformations.  Up until the 1981 Illinois Supreme Court decision, Alvis v. Ribar, Illinois used a "contributory negligence" system to determine whether a plaintiff could recover in a personal injury claim.  Alvis v. Ribar, 85 Ill. 2d 1 (Ill.1981).  Under this system, any degree of fault attributable to a plaintiff was an absolute bar to recovery.

The Alvis decision ushered in a new set of laws pertaining to fault and recovery in Illinois. Under the new "comparative negligence" legal system, plaintiff recoveries were limited by the percentage of their own negligence or fault.  So theoretically, if a plaintiff were 25% at fault or even 75% at fault, that plaintiff could recover with a reduction reflecting the percentage of their fault.

In 1986, the Illinois State Legislature enacted law that has supplanted Alvis's comparative negligence system. The new law is a hybrid between contributory negligence and comparative negligence.  Since 1986, Illinois has been a "modified contributory negligence" state.  735 ILCS 5/1116.  Under the current modified contributory negligence system, recoveries for damages are diminished in proportion to the percentage of fault attributable to the plaintiff. (Similar to comparative comparative negligence laws).  However, plaintiffs who are more than 50% at fault are completely barred from recovery. (Similar to contributory negligence laws).

Are Incorrect Police Reports A Bar to Recovery on Your Personal InjuryClaim?

A client recently asked me about an all too common situation:  He was involved in an auto-accident and the person who hit him was at fault.  Unfortunatley, the police report for the accident incorrectly showed my client to be at fault. Would he be prevented from recovering for his damages/injuries?

The answer to this question is: NO.

Chances are you've heard of the term Hearsay. This situation is why the rule exists.

According to Rule 802 of the Federal Rules of Evidence: "Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress."

According to Black's Law Dictionary hearsay is: "testimony that is given by a witness who relates not what he or she knows personally, but what others have said, and that is therefore dependent on the credibility of some other than the witness."

In this situation, the police report is hearsay.  The report is a police officer's out-of-court writing.  The police report does not consist of "the facts." The police officer was not a witness.

Even though the police report is inadmissible hearsay, however, the police report will be used by insurance companies to facilitate the settlement of claims. So, if the police report is wrong, chances are you will have to file a claim with the court and perhaps go to trial.

In short, an incorrect police report may create roadblocks, but it should not bar just compensation for damages.

How to Choose a Personal Injury Attorney (Part 2)

Honestly, one of the best ways to find a personal injury attorney, or any attorney for that matter, is to ask your family, friends, and acquaintances.  The chances are very high that someone you know knows a good attorney.

Another way to find an attorney is to use attorney referal services.  This method may prove slightly less credible, however, because the attorneys you will find through these services pay to get on the referral list.  Their skills as attorneys may very well be suspect, but if they pay their fees to the referral services, they remain on the list.

Another method for finding an attorney is to contact the local Bar Association for your area.  Most likely your area or county will have Bar Association listings of attorneys in particular practice areas.  These listings, however, do not necessarily ensure the capabilities of attorneys.

How to Choose a Personal Injury Attorney (Part 1)

It is not easy to choose a personal injury attorney.  Part of the difficulty is due to the sheer number of attorneys.  Another part is actually finding an attorney.  (Finding an attorney is not as easy as flipping open the yellow pages these days).  A very large part of this difficulty is due to the fact that people are not aware of how attorneys work, which means that people seeking attorneys might not be able to distinguish a good attorney from a bad one who will run a case into the ground.   One of the best things to do is to do some research and to go into an attorney-cient relationship with some knowledge.

One of the most important attributes your attorney should have is the ability to give you security.  At the end of the day, your attorney should help you sleep easy knowing that your claim is going to be redressed.  Finding the right attorney means knowing that your interests will be protected.  Your attorney should show you compassion and should be more interested in redressing the wrong done to you than profiting from your claim.  Not all personal injury attorneys are "ambulance chasers."  The right attorney is out to fight for your rights, not merely to capitalize on the tragedies that have befallen you.

Medical Malpractice Law Ruled Unconstitutional by Illinois Supreme Court

On Thursday, February 4, 2010, the Illinois Supreme Court struck down a law that limited damages awarded to victims of Medical Malpractice.  The law in question was signed into place in 2005 by former Governor Rod Blagojevich. and limited recoveries for pain and suffering and other non-economic damages to $500,000 in cases against doctors and $1,000,000 against hospitals.

James Rohack, president of the American Medical Association claimed: "Today's court decision threatens to undo all that Illinois patients and physicians have gained under the cap, including greater access to healthcare, lower medical liability rates and increased competition among medical liability insurers."  Despite this entreaty, the $500,000 and $1,000,000 recovery caps mentioned above did not adequately compensate all patients who receive negligent treatment.

While the debate goes on in Springfield as to whether lawsuits affect the quality and costs of medical care,  on a case by case basis, it is now in the jury's hands to decide the proper damages against doctors and hospitals.  This is because the Illinois Supreme Court held this decision should be in the jury's hands rather than lawmakers:

"The law violates the state's separation-of-powers clause between the branches of government by allowing lawmakers to interfere with a jury's right to determine damages."

http://www.chicagotribune.com/business/ct-biz-0205-malpractice-doctors-20100204,0,1406171.story