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Recent Blog Posts
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.
Illinois Law and “Natural Accumulation”
Generally speaking, In Illinois, property owners are not responsible for natural accumulations of rain, ice or snow which cause a fall resulting in injuries. A simple slip and fall on a snowy sidewalk, for example, may not create a valid cause of action for damages. However, a property owner can be liable for negligently maintaining its property where an unnatural accumulation is created. An unnatural accumulation can be due to defective construction or improper or insufficient maintenance of the property. For example, an owner may be responsible for injuries caused by a hazardous accumulation created by poorly constructed or maintained drainage, such as a gutters or drain spouts. In winter weather, liability may be created by the negligent placement of snow or ice in areas that create hazards after piles begin to thaw and melt.
Because “natural accumulation” is often a successful defense for a property owner, and because the nature of a hazard from precipitation can change quickly with changes in weather and temperature, it is important to gather information and evidence at or near the time of your fall. If you believe someone may have created the hazard that caused you to fall, take photos of the area immediately, and speak to an experienced attorney as soon as you can, so that your claims may be properly evaluated.
Changes in Illinois Family Law for Maintenance
The Illinois legislature has amended the Illinois Marriage and Dissolution of Marriage Act, effective June 1, 2018. Specifically, the Act’s maintenance (or alimony) provisions have been modified.
The maintenance provisions are now applicable to marriages in which the total gross income of the parties is less than $500,000. This provision replaces the previous maximum amount of $250,000.
The maintenance guidelines now apply to parties whose income totals up to $500,000. Before, if the total annual gross income was above $250,000, the Court was not constrained by the legal guidelines for deciding whether maintenance should be awarded from one spouse to another, and, if the judge did decide maintenance should be awarded, he or she could devise an amount that was appropriate, (and a duration of payment), without having to follow a fixed calculation for the amount or the duration.
The new legislation also changes the way the suggested duration of maintenance is calculated based on the length of marriage prior to the filing of a divorce petition. The new law now fine-tunes the durational period by giving courts additional guidance and breaking down the calculation to be used into smaller time periods.
The DUI Stop: The Decision to Take the Breath Test
The most common question I am presented with when meeting with a new Illinois DUI client is: “Should I have blown (provided a breath sample to the arresting officer)”?
My initial advice is always the same, “Do not put yourself in a situation where you have to choose!” Use a designated driver, a ride share service or a taxi. Each of these alternatives is safer and cheaper than defending a DUI.
However, if you have you made the mistake of getting behind the wheel, and you are unsure if you would blow under the legal limit of .08, generally it is a good idea not to blow. Keep in mind that there are risks associated with either decision.
Neither situation is ideal, but both have advantages and disadvantages. In Illinois you can typically be charged with Driving under the Influence of Alcohol two separate ways. Attorneys refer to these as an (a)(1) or an (a)(2) DUI, which simply refers to the statutory section invoked. An (a)(1) DUI means you were operating a motor vehicle with a blood alcohol level of .08 or greater. An (a)(2) DUI means you were under the influence of alcohol while operating a motor vehicle. They sound the same, but there is a big difference between the two.
Personal Injury and the Discovery Process
The most time-consuming part of personal injury litigation falls under the broad category of “discovery.” Once a lawsuit has been filed and preliminary motions are addressed, the attorneys must begin the process of literally discovering how strong or weak each party’s case is. In order to do that, your attorney has to do a considerable amount of factual research.
The first step of this phase is to issue written discovery. Written discovery consists of four primary types of documents: (1) written interrogatories; (2) requests for production of documents; (3) requests for admission of facts; and (4) third party subpoenas. These documents are requested and generated with the purpose of finding out any and all relevant information, and in particular, any evidence that may support the other party’s position by presentation at trial. The duration of the written discovery phase can range from months to more than a year, depending on the complexity of the litigation and the willingness of the opposing sides to cooperate with one another. Although the length of this process may be extremely frustrating to litigants, thorough discovery is an important step to assembling a winning case, or to help the parties reach a reasonable settlement.
Talking to Insurance Companies After a Personal Injury Accident
The most important person to speak to after you have been injured in a personal injury accident is your doctor. For many reasons, seeking and obtaining the appropriate medical treatment should be of paramount importance after you have been injured. However, if your injuries have been caused by another person, that person’s insurance company is going to seek to take your (usually recorded) statement as soon as possible. This initial communication can determine how much of your health or other expenses the company will cover. You should think twice before speaking to the adjuster immediately after your accident.
The goal of an insurance adjuster is to get you to admit complete or partial fault or downplay your injuries so that the company can save money. That is why the insurance company may contact you immediately after a vehicle accident or other injury. This is commonly when you are least prepared to talk to them. There are several reasons why you should not conduct a recorded interview with an insurance adjuster without consulting your personal injury attorney: First, if an insurance adjuster calls you the day of (or the day after) your accident, you may honestly answer that you do not feel injured. Unfortunately, it is common not to notice some of your injuries until a couple of days after the incident. Once the adjuster has your statement on record, the insurance company can use it against you when determining your claim. Furthermore, even when you know you have been hurt after an accident, you will not know the full extent of your injuries until after seeing a medical professional. You should not speculate about your injuries–your statement may contradict your official diagnosis, creating confusion. You may also find yourself mentally or emotionally vulnerable in the hours and days after an accident. You have suffered through a traumatic experience that may prevent you from thinking clearly. You do not want to be held accountable for statements you made when you were upset or exhausted.
Why it Is Important to Take Pictures After a Car Accident
A car accident is an overwhelming experience for most people. Many accident victims find that it is difficult to maintain rational thought following the crash, or even for days and weeks later. However, taking immediate action can make a difference between winning and losing a personal injury case. That is, the decisions you make can mean the difference between being compensated for your medical costs and being required to pay for them on your own. If your injuries are so severe that you are unable to complete any of the suggested tasks, your attorney can rush to the scene to gather any evidence available.
Why Photos and Videos Are So Important
Today, everyone has the potential to be a photographer due to the availability of camera technology on our smartphones. When it comes to a car accident, the camera may be the last feature you think of on your phone. However, after you contact the authorities and seek any necessary medical attention, use the camera and video function on your phone to capture photographic evidence of the scene. This compelling evidence can be used to demonstrate how the accident happened, who was at fault, any damages incurred, road conditions, and more. Most importantly, photographs can provide details of any injuries sustained and any negligence on the part of the other driver.
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