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Recent Blog Posts
Pain and Suffering as Damages in an Illinois Personal Injury Case
In Illinois, a person is liable for an accident in which that person was negligent. Where a person has been injured as a result of the negligence, the negligent person is obligated to make financial payment to the injured one. Among the damages for which the negligent party is responsible is a category commonly referred to as “pain and suffering.”
While it is fairly simple to add up the money spent and money lost for things like medical bills and lost income, there is no precise way to put a dollar figure upon the injured party’s pain and physical suffering. The Illinois Pattern Jury Instructions define pain and suffering as “The pain and suffering experienced [and reasonably certain to be experienced in the future] as a result of the injuries.” This leaves the determination of the value of pain and suffering damages greatly to the discretion of a jury or other finder of fact.
Damages include both pain and suffering experienced to date, as well as pain and suffering reasonably certain to be experienced in the future. However, “reasonably certain” does not necessarily require expert medical testimony. The dollar value of damages for pain and suffering is not necessarily related to the amount of medical bills incurred, thus giving a jury wide latitutde in assessing damages for pain and suffering. Generally speaking, damages for pain and suffering are limited to the time the injured person is conscious, as an unconscious person does not suffer pain because the mind is not conscious of the body’s condition. It is also important to note that a jury is not required to make an award for pain and suffering at all, even where it awards damages for pain-related medical expenses. It is therefore very important to present solid and credible evidence of the injured person’s pain and suffering, as well as to make a persuasive argument that such damages should be awarded for that person.
Understanding Illinois Seizure and Forfeiture Law
Asset forfeiture is the legal process where property which has previously been seized may permanently be confiscated.
When faced with a potential forfeiture issue it is important to understand some basic principles:
First, a forfeiture action is civil in nature, not criminal. This is important for two reasons: 1), the burden of proof is much lower in a civil action and 2), there is no right to appointed counsel.
Second, under certain statutes in Illinois, you do not have to be convicted of, or even charged with, a criminal offense in order to have your seized personal property subject to civil asset forfeiture litigation.
Civil asset forfeiture litigation is very procedure-driven in nature. Too many times, we have clients consult with us only to discover certain deadlines were missed and unfortunately, they were too late to contest the forfeiture and property was already forfeited. For example, forfeiture actions under the Illinois Drug Asset Forfeiture Act and Illinois money laundering laws require you to file a verified answer within 45 days of the State sending notice of the action and posting a cash bond equal to 10 percent of the value of the seized property. If either requirement is not met, the property is forfeited.
Independent Medical Examinations under the Illinois Workers’ Compensation Act
When injured while working in Illinois, you are entitled to the all the protections offered under the Workers’ Compensation Act. Section 12 of this Act allows the respondent (your employer) to send you for an examination by a non-treating doctor. A respondent will use this examination to determine if you should continue to receive benefits, such as payment of medical bills or temporary total disability payments. Before heading into this type of exam, there are some things you should know.
A respondent has a right under the Act to send you to an independent medical examination, (IME), provided that they pay for your reasonable expenses of attending the examination. This usually means paying for mileage and a meal, but depending on the circumstances, could involve arranging transportation or compensating you for having to miss work. These expenses and arrangements should be provided to you before the exam takes place. Notice must also be given and it must be reasonable. Once notice is given, if the appointment needs to be rescheduled, this should be communicated to the respondent so that a non-appearance fee is not generated. While attendance at this appointment is mandatory, you do have some say as to when it should occur.
What to do if Someone’s Negligence Causes Your Injuries
Every day, people find themselves injured due to the negligence of another, whether it be in an auto accident, at the grocery store, or walking into an office building. Illinois law allows an injured person to be compensated financially for his or her damages under those circumstances. Unfortunately, the incident that causes the injury may be traumatizing, and the injured person may find himself or herself overwhelmed and uncertain what to do next. Often, he or she does not know whether they can or should make a claim for the injuries, and does not know what steps to take to do so. Consulting with an attorney can help.
Ideally, your attorney would prefer that you, (or someone you know), takes contemporaneous photos of the scene of the accident, and jots down pertinent information, including the names and contact information of witnesses to the incident. If the accident involved motor vehicles, photos of the vehicles and the area where the accident occurred can be very helpful in evaluating a claim of negligence and presenting evidence at trial, if that becomes necessary.
Family Law and the Guardian ad Litem in Will County
Recently, the Will County Circuit Court has been relying on Guardians at Litem to assist in investigating and making recommendations in order to resolve disputes between parents centered on the issues of parenting time, the determination as to who will make major parenting decisions for the minor child(ren), and other parenting issues. Previously, judges were routinely appointing experts to investigate and make recommendations on these types of issues. Unfortunately, even though these experts provided comprehensive, and at times exhaustive, reports and recommendations on what were formerly referred to as custody and visitation disputes, the amount of time it would take to finish their investigations and submit recommendations, along with the expense incurred for their work, made the appointment of such experts unattractive to most parents.
The appointment of a Guardian at Litem (GAL) to represent the minor child(ren) in these disputes is routinely a quicker and more cost-effective way to address the issues involved, and helps provide the Court with guidance in considering the best interest of the child(ren). It is important to keep in mind that GALs do not represent the parents, and parents should not expect a GAL to treat them as a client. Parents must always rely on the advice of their own counsel, especially when dealing directly with a GAL. Most importantly, parents should discuss with their own attorney the subject matter that they may be asked to address when speaking with a Guardian at Litem, as well as how best to present their position to the GAL, while at the same time deciding how to minimize the weaknesses in their case when questioned directly by the GAL. Many parents make the mistake that a GAL is somehow co-counsel in advocating for their position. Many times the GAL receives information from parents that most attorneys would caution against disseminating. Therefore, interacting with a GAL is an important subject that should be thoroughly discussed with an attorney before such communication begins.
Pursuing Legal Action Against a Home Improvement Contractor
The civil attorneys of McNamara Phelan McSteen often consult with homeowners who either paid a contractor to do work which was not completed, or was done but done poorly and not in accordance with industry guidelines. Fortunately, Illinois has laws in place to protect homeowners–most importantly, the Home Repair and Remodeling Act. The law requires businesses/contractors engaged in the home repair and remodeling business to give the homeowner/customer certain notices, notably:
For every contract over $1,000.00 the contractor shall provide the customer with a written contract, which must contain the following: 1) The total cost — including parts and materials listed with “reasonable particularity,” along with any charge for an estimate; and 2) The business name and address of the person engaged in the business of home repair or remodeling.
If that business address is a P.O. box, Mail Receiving Service, or designated agent to receive correspondence, the person must list their residence address on the contract. Most importantly, the contractor must provide the customer with a consumer rights brochure entitled “HOME REPAIR: KNOW YOUR CONSUMER RIGHTS.” This brochure advises the customer of certain rights, as well as some basic terms which should be included in the contract.
Statute Update: Changes for Illinois Bicyclists
Bicyclists in Illinois can now put a red tail light on the rear of their bike, instead of, or in addition to the traditional red reflector. Bicycle groups laud the new law as a recognition of changing technology, which will provide for greater visibility, and thus greater safety, for bicyclists on the road.
Two other new bicycling laws took effect in Illinois as of January 1, 2018. One allows motorists to pass a bicyclist on the highway in a no-passing zone. The other recognizes riding a bicycle on a highway shoulder as a legal practice.
Statute Update: Prohibition of Hospital “No-admit” lists
The Illinois legislature passed a new law, effective January 1, 2018, which prohibits hospitals from maintaining a list of individuals who may not be admitted for treatment. Supporters of the legislation urged its passing to ensure access to medical care within hospital systems regardless of ability to pay, prior medical/mental health history, or any other reason that warrants inclusion to a list to deny care. The law does provide hospitals and medical staffs with flexibility to determine the appropriate treatment and setting for treatment for incoming patients.
Health Care Provider Liens In Illinois
Unless you have been through the process of making a claim for injuries, you most likely (and reasonably) believe that winning your negligence trial is the end of the road, and that your check is on the way. Unfortunately, in the great majority of cases, your successful verdict, (or reasonable settlement), is merely the beginning of the next step of the process—negotiating the outstanding liens.
In the context of personal injury claims, a “lien” is a legal claim upon the recovery the injured party receives, whether by settlement or verdict and judgment after trial. As a practical matter, a lien is a financial obligation that must be satisfied before the injured party can recover any proceeds from his or her settlement or judgment. There are various types of liens that may attach to your personal injury claim, but the first that comes to the attention of the injured party is often the Health Care Provider Lien.
The Illinois Health Care Services Lien Act creates a lien for the amount of bills for any medical services provided to an injured party making a legal claim for damages. In order to enforce this lien, the medical provider must follow specific procedures set out in detail in the statute. Once the procedures are followed, the injured party must resolve the lien before he or she can receive payment. Even though a lien can be claimed by the health care provider for the full amount of the medical bills generated, if there are multiple liens claimed by different providers, the sum of all liens combined cannot exceed 40% of the total settlement or award. If there is only one lien-holder, then the lien for that provider cannot exceed more than one-third of settlement or award. More importantly, your experienced attorney may be able to negotiate more significant reductions of these liens, depending upon the circumstances surrounding the claim and the details of the settlement negotiations. Obviously, the more successful your lawyer is in reducing the liens, the greater your net recovery will be. At McNamara Phelan McSteen, we make every effort to maximize your recovery and to minimize the amount paid to lienholders, so that you receive a fair result from your personal injury claim.
Statute Update: Tax Consequences of Maintenance Payments
Beginning in 2019, maintenance payments will no longer be tax deductible. Pursuant to the newly passed federal tax bill, maintenance payments, which were for decades tax deductible by the payor and charged as income to the payee, will no longer be deductible as of January 1, 2019.
This creates a significant problem in the calculation of maintenance awards in family court, because deductibility is a major factor in the calculation. For this year, it is still possible to finalize a divorce where maintenance payments are tax deductible, but the clock is ticking. If you are in a situation where maintenance is to be paid by you, it is to your benefit to conclude your divorce before December 31, which will ensure that your divorce decree expressly addresses the issue of deductibility. If your divorce is not finalized by the end of this year, then you should consult an accountant or other tax professional before negotiating or advancing a proposed maintenance payment.
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