Healthcare liens can trip up plaintiffs and their counsel as well as derail reasonable settlements. Since the Illinois legislature “clarified” the obligations of the parties in the Health Care Services Lien Act, 770 ILCS 23/1 et seq., injured victims have generally been on the losing end of health care lien disputes. Yet a case recently decided by the Illinois Appellate Court from the Fourth District gives plaintiffs an avenue to relief. In Turner v. Orthopedic and Shoulder Center, S.C., 2017 IL App (4th) 160552 (July 6, 2017), the court considered multiple arguments to defeat the health care services lien including claims by the plaintiff against the healthcare service provider for consumer fraud and intentional infliction of emotional distress. These claims did not make it across the finish line for plaintiff; notwithstanding this, the court ultimately adjudicated the plaintiff’s health care lien to zero.

In the Turner case, the court looked at the specific provisions of the Health Care Services Lien Act, what was included and not included in it. It rejected any interpretation of the legislative history urged by the defendant because it found the statute unambiguous. The panel concluded that to have a health care services lien on the plaintiff’s settlement proceeds, the defendant had to be the plaintiff’s creditor, in other words, the plaintiff had to owe a debt to defendant for health care services. The existence of such a debt depended not on the Lien Act but, rather, on the contractual relationship between the defendant and plaintiff. The plaintiff was an intended third party beneficiary of the governing contract, the “Participating Provider Agreement” so the court looked to this document for answers. Under this agreement, the defendant was not the plaintiff’s creditor, and the defendant had no “reasonable charges” against her because Blue Cross’s payment of its “Usual and Customary Fee allowance” was, as defendant had agreed, “full payment for each [covered] service.” Thus, the court determined without an unpaid debt owed by the plaintiff, there could be no valid lien on her property.

What this case and its recent predecessor, Barry v. St. Mary’s Hospital Decatur, 2016 IL App (4th) 150961, tell us as plaintiff’s attorneys is to look deeper when evaluating and negotiating health care liens on behalf of our clients. The underlying provider agreements should be obtained from all health care providers claiming a lien. These contracts may be fertile ground for reducing or eliminating liens, putting more dollars in the pockets of injured victims.

Laird M. Ozmon, Attorney at Law

Looking out over the newly unveiled Chicago Riverwalk the city has never looked more vibrant. It’s alive with boats of every size and shape sharing the waterways, and bikes, Segways and pedestrians sharing the roads, sidewalks and paths. The City of Big Shoulders has opened its arms to every mode of transportation and residents and tourists alike are game to experience it. Whether you’re grabbing a Divvy bike, renting a party boat, hopping in a kayak or scheduling the next Segway tour, adventure, and for the unlucky few, potential disaster, awaits.

The way I see it, through the eyes of someone whose job it is to represent the unlucky few, the sharing/tourist economy is fraught with opportunities for novice vehicle operators to collide with peril. Too often people confuse access with skill and fail to appreciate the risks of endeavors like riding an unfamiliar bike in strange urban surroundings or operating a boat on a river filled with many and larger vessels while throwing back a few cold ones. So I’d like to offer some strategies to lower the odds that you’ll be the victim of personal injury.

Don’t approach these activities as if you’re immune to injury or mishap. Here are some basic steps to protect you.

STEP 1: Familiarize Yourself with the Vehicle. When you buy a new vehicle, the first thing you do is get to know how it operates. Rented or borrowed vehicles are no different. Every bike is not the same, no boat stops on a dime, so you need to know how to navigate the basic functions that ensure your safety. Go to a safe area and figure out how to stop, turn and maneuver the vehicle. Make sure it is working properly; return and report defective equipment.

STEP 2: Use Appropriate Safety Gear. Just because you’re on a Divvy bike doesn’t mean you don’t need a bike helmet. Renting a small boat on the river where you can see land very closely on both sides doesn’t obviate the need for a life jacket (anyone can hit their head falling off of a boat and sink to the bottom). At least make sure there are life preserver’s aboard.

STEP 3: Know the Rules. Make sure you understand the rules of operating your vehicle of choice. Follow posted signs for bike lanes and traffic. If you’re in a boat comply with “No Wake” zones, keep a close eye out for other vessels and always have a spotter to back you up. Leave the alcohol for after you park your bike or Segway, or hang up your captain’s hat.

STEP 4: Don’t Take Unnecessary Risks. Just because you’re out of your normal routine or being a tourist doesn’t mean you have to reenact a scene from the latest Marvel movie. One dart out into a lane of traffic or dive into unexpectedly frigid waters can spell disaster. Define fun as new and shared experiences with friends and family, not the rueful moment that ends with you on way to the hospital.

If you follow these rules, then in the unlikely event that something goes wrong, it is more likely that someone or something else is responsible, and if that is the case, please call me at 815.727.7700.

This month our country was stunned by another jury verdict exonerating a police officer for criminal conduct in shooting an innocent black person. Police officer Jeronimo Yanez of St. Anthony Minnesota shot Philando Castile five times during a routine traffic stop in which Mr. Castile volunteered the information that he was in lawful possession of a firearm.

The video footage of the incident is heartbreaking. Mr. Castile’s girlfriend demonstrated remarkable composure, respect and even deference to the officer as her boyfriend lay dying. Even more gut wrenching is the bodycam footage released this week showing the officer literally becoming unhinged and firing shot after shot into his helpless victim. Then there’s the final excruciating image of the child in the backseat getting out of the car in the aftermath of the shooting.

It’s difficult for me to indict the legal system to which I’ve devoted my career or the jury of twelve that included two members of the black community (who incidentally voted to acquit within the first day of deliberations). I remind myself that we do not see the evidence as they see it; nor is the court of public opinion bound by the rules of evidence or the law as laid out in the jury instructions. I know members of the jury can feel cowed or hamstrung by those instructions, and yet, in my experience, the majority of the time they do their duty and follow the law. But I can’t shake the feeling that justice was not served in that criminal court in Minnesota. So, is there a small measure of solace knowing that the Castile family has a second chance at justice in civil court, the arena in which I practice? A bit, just a tiny bit.

Likely due to public pressure and outcry, the family’s quest for a civil remedy proved less arduous. Shortly after the bodycam video was released this week the City of St. Anthony announced the settlement of the Castile family’s civil case against it for $3,000,000, the limits of the City’s insurance policy. Is this mere consolation? It certainly is. There is no amount of money that can restore Philando Castile to his loved ones, or obliterate the images of that horrific incident. Nevertheless, it does represent a form of justice within the design or our imperfect legal system, something the family can hold onto that represents acknowledgement by the wrongdoer that they indeed suffered a wrong. It empowers them to use the settlement money to honor the memory of their loved one. This may be in the form of their own mental health care or grief counseling, a memorial, a scholarship fund or any number of ways that hopefully sets them on the path to healing.

If they operate as intended, in their purest form civil damages should also have a deterrent effect. No entity, or insurer, for that matter, wants to see its payment of a multi-million dollar settlement on the news crawl, or reported at the city council meeting. And as we know there have been many such settlements recently: Tamir Rice, $6 million, Freddie Gray, $6.4 million, Eric Garner, $5.9 million. Heads do roll, regulators come knocking, people lose their jobs and those in power are taken to account. When the dust settles, the eternal optimist, Officer of the Court in me hopes that better police training programs are implemented, regular and mandatory on-the-job training includes race and cultural sensitivity training and counseling, that concerted and innovative efforts are made by police departments to engage the community and restore trust.

We’ve never gotten this quite right. In the face of so much that is wrong, a firestorm of tremendous loss and injustice, civil damages can carve the way forward; and generally, is the only one that lowers the grade on that steep road toward healing for a nation and every single one of its citizens.

Product recalls are constantly in the news these days. Last month four car companies, Toyota, BMW, Subaru and Mazda, settled a class action covering nearly 16 million vehicles that plaintiffs claimed contained defective Takata airbags. The settlement didn’t even address the multitude of personal injury and property damage claims (those are being handled in other litigation); rather it involved the residual consumer damages such as rental car reimbursement. This highlights the many facets of consumer safety efforts and the roads to redress for consumers whether they suffer residual losses, property damage or personal injury.

In 2015 the U.S. automobile industry logged a record number of product recalls, nearly 900, affecting 51.26 million vehicles according to the national Highway Traffic Safety Administration. Some tout this as emblematic of stellar product safety efforts and tip their hats to regulators and manufacturers alike. I’m not quite as quick to reach for the brim.

While I know the system is not perfect, I would advocate for proactive measures in the manufacturing and quality control inspection process so that fewer defective products get to market resulting in less injuries and fewer lawsuits. As the airbag class action demonstrates with the settlement involving the set up of an outreach program for the recalls, product recalls do not always result in substantial remediation of the problem. Consumers may not get the proper notification and/or the hardship in undergoing the repair necessitated by the recall disincentivizes them to get the repair. So defective cars stay on the road, defective products remain in the stream of commerce, and consumers remain at risk.

As a consumer, what can you do to reduce your own risk? First, register the products that you purchase with the manufacturer. Pay attention to the notices you receive regarding the product, follow-up on any notices and follow instructions for recall or return of the product. If you see something in the news about a specific product and you suspect you own it, then check it out. If you do have the product, visit the company website or call or email them for instructions and follow them. The manufacturer should provide you with a replacement or some form of compensation, if not then ask for it.

If you are injured when using a product, i.e. a motor vehicle, tool, or even food, don’t dismiss the possibility that the product is defective. Retain the product or at least photo or video evidence of it and contact an attorney as soon as possible. Our role as attorneys is to demand better products and safety measures and be vigilant when it comes to making companies accountable for the safety of their products.

Learn more about product liability.

The Supreme Court is at it again, sacrificing the rights of plaintiffs for the benefit of the almighty corporation. In its latest turn of the knife, the nation’s highest court has limited the locations where injured personal injury victims may sue corporations. This week the Court decided BNSF Railway v. Tyrrell. The plaintiffs sued BNSF in Montana for claims that occurred outside of the state. The basis for jurisdiction in Montana was that the railroad had more than 2,000 miles of track and 2,000 employees in the state. The Montana Supreme Court found these facts to be sufficient contacts with the state to invoke jurisdiction.

The U.S. Supreme Court said “no” in an 8-1 decision. Rather, it ruled that a corporation cannot be held liable for claims that are unrelated to any activity occurring in the state. State courts may not hear claims by injured parties against companies when they are not based or headquartered in the state or the alleged injuries did not occur there.

This may sound logical at first, until you consider the global economy in which we live. We travel and every day we encounter multi-state and multi-national corporations and their products and services. So, if you’re visiting a neighboring state like Wisconsin and you’re injured using a defective product manufactured by a multinational company like Yamaha but they’re headquartered in New York, you may not be able to sue them in Illinois even though this is where you live and Yamaha does significant business in Illinois.

Under this scenario, the plaintiff is not seeking to sue Yamaha in Illinois because Illinois has laws more favorable to plaintiffs, a strategy we call “forum shopping” and something courts seek to protect against, the victim just doesn’t want to have to travel to Wisconsin to prosecute the case, such as meeting with an attorney, taking depositions and even sitting for trial.

The only dissenting Justice, Sonia Sotomayor, got it right calling it a “jurisdictional windfall” for large multistate and multinational corporations. “It is individual plaintiffs, harmed by the actions of a far-flung foreign corporation, who will bear the brunt of the majority’s approach and be forced to sue in distant jurisdictions with which they have no contacts or connection.” The ultimate irony here is that corporate defendants are the ones that are equipped for and can afford the interstate nature of litigation. Even worse, the overriding effect of this decision will be that less lawsuits are filed as personal injury victims simply can’t afford or don’t have the will to pursue their claims across state lines with such obstacles impeding their access to recovery.