Loss of Earning Capacity

All permanent injuries suffered by a Plaintiff will have some impact on that Plaintiff’s future ability to secure employment.

Whenever an individual is permanently injured he should recover for this potential loss to his future earnings.

This recovery is not dependent on the Plaintiff’s loss of current income or wages with his current employer.

In Jackson v. Illinois Central Gulf Railroad Company, 18 Ill. App. 3rd 680, 309 N.E.2d 680 (1st District 1974), the First District allowed instructions and recovery for loss of future earnings even though the Plaintiff worked for the same employer at trial as he had on the date of his injury and even though the Plaintiff’s salary was one hundred fifty percent higher at the time of trial.

In Jackson the Plaintiff has been a janitor and had three fingers amputated.  At the time of the trial the Plaintiff had become a security police officer, and the First District said: “Suffice it to say that considering Plaintiff’s life expectancy and extent and permanent nature of his injury and the effect of the injury on his future ability to secure laboring employment the Jury could well have concluded that the Plaintiff’s capacity to earn money in the future would be severely hampered.” [Jackson at 688]

In Parnham v. Carl W. Linder Company, 36 Ill. App. 2nd 224, 183 N.E.2nd 744 (1962) the Appellate Court held that the trial court had properly given an instruction on future earnings loss and had properly admitted life expectancy tables even though the Plaintiff was making the same or higher income at the time of trial and was performing the same work that he had performed at the time of his injury.  The Plaintiff in the Parnham case lost his eyesight in his left eye.

In Izzo v. Zera, 57 Ill. App. 2d 263, 205 N.E.2d 644 (1965) the Plaintiff held the same position with his employer at trial as he had at the time of injury and his salary increased at the time of the trial.  The Appellate Court approved of an instruction and recovery of future earnings loss.

In Izzo the Plaintiff was a high school music teacher and a professional musician who had suffered a fractured jaw.

In Seyferlich v. Maxwell, 28 Ill. App. 2d 469, 171 N.E.2d 806 (1st District 1961) the First District allowed a recovery for future earnings loss where the Plaintiff was apparently earning the same money at the time of the trial as she had earned at the time of her injury.  In Seyferlich the Plaintiff was an interior decorator who suffered a back injury.  After her injury she became self employed.  The First District held that the question of the Plaintiff’s loss of earnings and diminution of earning capacity was clearly a question for the jury.

The Court said: “The jury may have determined that the Plaintiff’s earning capacity was impaired by the accident and that but for the accident she might have earned considerably more.” [Seyferlich at 808.]

In the recent case of Harris v. Day, 115 Ill. App. 3d 762, 71 Ill. Dec. 547, 451 N.E.2d 262 (1983) the Appellate Court stated that “the record contains evidence that Plaintiff’s injury was permanent and evidence that such injury would reduce Plaintiff’s employment options and/or result in a loss of time from future employment.  The Plaintiff himself testified that his injury diminished his capacity to work and the general rule is that the appearance of the Plaintiff on the witness stand, his testimony as to the nature of his injury and their duration is sufficient to take the question of impaired earning capacity to the jury.”

In the case of Doering v. Janssen, 76 Ill. App. 3d 62, 31 Ill. Dec. 519, 394 N.E.2d 721 (1979) a personnel consulting expert was allowed to testify concerning the future employability of the Plaintiff.  The expert testified that based on the medical testimony (the Plaintiff suffered a brain injury) the Plaintiff’s injury would have an impact on the Plaintiff’s employability with eight major employers in the area.  The Appellate Court held that this testimony was not conjecture and overruled older Illinois cases to the contrary. [Doerong at 521]

In Buckler v. Sinclair Refining Company, 68 Ill. App. 2d 283, 216 N.E. 2d 14 (1966) the Plaintiff’s income or salary actually increased at the time of the trial from what it was at the time of the injury.  The Plaintiff amended his complaint abandoning his claim for loss of future income and alleged “loss of earning capacity” rather than loss of income.

The Appellate Court held that “impairment of earning capacity is a proper element of damage to be considered by the trier of fact and that recovery of damages for loss of earning capacity is not merely a recovery for wages lost.” [Buckler at 20]

The Plaintiff’s increase in income was excluded by the Court and the Appellate Court commented “an increase in salary in a corporate business where the employee is also the manager and majority shareholder has no essential relationship to earning capacity.” [Buckler at 20]

In Robinson v. Greeley and Hansen, 114 Ill. App. 3d 720, 70 Ill Dec. 376, 449 N.E. 2d 250 (1983) the Appellate Court again approved of the trial court excluding the increased income of the Plaintifff at trial when the Plaintiff’s income was the result of his corporate earnings.

The Court held that when the company earnings are the result of the investment of significant capital as well as the use of labor of others that the earnings are not an accurate indicator of the earnings potential of the Plaintiff. [Robinson at 381]

The Robinson Court held that the impairment of earning capacity is a proper element of damages but that the recovery for earning capacity losses must be limited to losses that are reasonably certain to occur.  The Court held that: “Generally the measure of damages for impairment of earning capacity is the difference between the amount which Plaintiff was capable of earning before his injuries and that which he is capable of earning thereafter…damages should be estimated on the injured person’s ability to earn money rather than what he actually earned before the injury and the difference in the actual earnings of Plaintiff before and after the injury does not constitute the measure.” [Robinson at 380]

The Robinson court also said that “the fact that Plaintiff’s earnings after his injury are at the same or greater rate than before is not a criterion as to earning power since earning capacity may be materially impaired although the employer continues to pay the old rate.” [Robinson at 380]

In the Robinson case the injury was a brain injury and a vocational rehabilitation counselor testified.  He testified that prior to the accident the Plaintiff was capable of earning fifty thousand dollars per year.  This conclusion was based upon an evaluation of the Plaintiff’s skills and duties in the construction industry.  The counselor testified that the Plaintiff’s earning capacity after the injury was only ten thousand dollars per year.  The expert considered the Plaintiff’s employability in the wrecking industry in which the Plaintiff was currently employed and his employability in clerical occupations.  The Court concluded then that the Plaintiff’s current earning capacity was determined by his current position, duties and skills. [Robinson at 281]

The impairment of earning capacity is not a speculative area.  The recovery for the impairment of earning capacity is limited to the loss that is reasonably certain to occur.  In Christou vs. Arlington Park – Washington Park Race Tracks Corporation, 104 Ill. App. 3d 257, 60 Ill. Dec. 21, 432 N.E. 2d 920 (1st District 1982) the Plaintiff was unemployed at the time of the injury.  He had previously worked as a bus boy and he testified that he was in training for a bartenders job but that he had ambitions one day to own a restaurant.  The Plaintiff never owned a restaurant and clearly had no capacity to earn income as a restaurant owner.  The trial court allowed testimony of the average weekly income of restaurant owners.

The Appellate Court held that the testimony concerning possible income to an average restaurant owner based on the Plaintiff’s ambitions one day to be a restaurant owner ws remote and speculative.  The Court said that the ambition of the Plaintiff had never been materialized and was not an item of the Plaintiff’s earning capacity.  The Court did allow testimony to the Plaintiff’s training as a bartender and the weekly salary he would have earned had the Plaintiff finished the training. [Christou at 24]

The I.P.I Instructions which apply to future earnings losses are I.P.I. 30.07 and I.P.I. 30.08.  These Instructions state that: “The present cash value of the earnings reasonably certain to be lost in the future.”

In closing argument cousel would want to argue that Plaintiff’s earning capacity impairment would actually cause the Plaintiff to lose earnings in the future.

In Redmond v. Hupperitz, 71 Ill. App. 2d 254, 217 N.E. 2d 85 (1966), the Appellate Court considered a brain injury to a sixteen year old girl where there was no evidence that the injuries would impair the Plaintiff’s ability to obtain work or to be gainfully employed. The medical opinion indicated a brain injury with permanent loss of the sense of smell.  The Plaintiff had participated in the usual school activities and was fully and gainfully employed at the time of trial.  The Court held: “An instruction on the future loss of earnings where evidence is adduced of some permanent injury to a minor child is proper.” [Redmond page 88]

In Stewart v. DuPlessis, 42 Ill. App. 2d 192, 191 N.E. 2d 622 (1st District 1963) the Appellate Court held that when a minor suffers a permanent injury (loss of vision in one eye) an instruction on the loss of future earnings is proper.

In Huff v. Condell Memorial Hospital, 4 Ill. App. 3d 352, 280 N.E. 2d 495, (1972) the Appellate Court held that where the plaintiff was nineteen years old and a minor at the time of the hospitalization, an inference of future loss of earnings from the nature of her permanent injury is permitted even where there is no evidence of Plaintiff’s lost wages or any foundation for future earning losses. [Huff at 498]

In Bernesak v. Catholic Bishop of Chicago, 87 Ill. App. 3d 681, 42 Ill. Dec. 672, 409 N.E. 2d 287, (1st District 1980) the First District affirmed a two hundred thousand dollar injury verdict involving a permanent injury to a child on a school playground.  The defense successfully convinced the trial court not to give a future earnings instruction because the Plaintiff’s hip injury would not preclude her from holding most jobs and was unlike the other child cases referred to above.  The trial court agreed with the Defendant but the First District held that this is a question for the jury to consider and that the instruction should definitely have been given.

The First District reversed the order denying the Plaintiff’s motion for a partial new trial and remanded the case for a new trial solely on the issue of the amount of money to be added to the two hundred thousand dollar verdict based on the Plaintiff’s loss of income and present cash value of income reasonably certain to be lost in the future. [Bernesak at 680]

In Hartseil v. Calligan, 40 Ill. App. 3d 1067, 353 N.E. 2d 10 (1976) the Appellate Court confirmed the rule of law that a future loss of earnings was to be inferred from the nature of an injury to a minor child.  In addition to confirming this rule of law Hartseil allowed the plaintiff’s physician to testify concerning possible occupations for the Plaintiff.  The physician testified that the back injury to the Plaintiff would be a permanent condition and would possibly preclude his engaging in some occupations.

The doctor said that in his opinion these injuries would restrict the Plaintiff from being employed by “any company who in their pre-employment evaluation obtains an x-ray of the lumbar spine because this deformity will be visible and will exclude him from employment in a company which does that.” [Hartseil at 12] https://www.marketmymarket.com/legal-marketing/

What Your Rights Are as a Resident of a Nursing Home

Nursing homes have been defined as private institutions that furnish shelter, feeding and care for sick, aged, or infirm persons. They are not strictly considered hospitals, in that they do not necessarily render actual medical treatment, but may be considered hospitals for certain purposes, depending on various statutes that may govern their operation.

Federal regulations distinguish among four types of health care facilities, starting with those that offer the lowest level of nursing care, “adult boarding facilities,” then “residential care facilities,” “intermediate care facilities, and finally, those that offer the highest level of nursing care, “skilled nursing facilities.” Different standards apply depending on how an institution is classified. State and federal governments regulate skilled nursing facilities and intermediate care facilities, particularly with respect to their participation in Medicare and Medicaid. National standards for nursing homes serving as “extended care facilities” are contained in the Federal Medicare Health Insurance Program for the Aged.

A resident in a nursing facility that participates in the Medicare program has the right, under statute, to be free from verbal, sexual, physical and mental abuse, and any physical or chemical restraint that is imposed for purposes of discipline or convenience, rather than to treat a medical condition. Restraints may be used upon the written order of a physician who specifies the duration and circumstances under which the restraints are to be used, but only to insure the safety of the resident or other residents. The Secretary of Health and Human Services has the authority to specify circumstances in which emergency use of restraints is permitted until such an order can reasonably be obtained.

Under federal guidelines which Lawyers of Distinction understand, each nursing facility must develop and implement written policies and procedures prohibiting mistreatment, neglect, or abuse of residents. Each facility must also insure that all alleged violations of the foregoing policies are immediately reported to the facility administrator or other officials, and must demonstrate that all alleged policy violations are thoroughly investigated. Additionally, they must prevent further potential abuse while an investigation is in progress, report investigation results to the administrator or other officials within five working days of the alleged incident and, if the alleged violation is verified, take appropriate corrective action.

A resident in such a nursing facility is entitled to receive verbal and written notice of the rights and services to which he or she is entitled during his/her stay in the facility. This notice must be give prior to or upon admission, and periodically throughout the resident’s stay, in a language the resident understands. The resident must acknowledge his or her receipt of such notice in writing.

  • Nursing home residents have the right to see family members, ombudspersons or other resident advocates, physicians, service providers, and representatives of the state and federal government.
  • Residents may keep and use their personal possessions and clothing unless doing so would endanger health and safety.
  • Residents have the right to apply for and receive Medicare and Medicaid benefits and cannot be asked to leave a home because they receive such benefits.
  • A nursing home must treat all individuals the same, regardless of whether they are private payers or Medicare or Medicaid recipients.
  • Residents have the right to keep their clinical and personal records confidential.
  • Residents are entitled to lists of what services are paid by Medicare and Medicaid and the additional services for which the residents will be charged, plus the fees for those services.
  • Nursing home residents have the right to choose their own personal physician.
  • Residents have the right to be fully informed about their medical care.
  • Residents have the right to participate in the planning of their care and treatment.
  • Nursing home residents have the right to refuse treatment.
  • Residents have the right to be free from mental and physical abuse.
  • Nursing home residents cannot be kept apart from other residents against their will.
  • Residents cannot be tied down or given drugs to restrain them if restraint is not necessary to treat their medical symptoms.
  • Residents have the right to raise grievances and have them resolved quickly.
  • Residents may participate in social, religious, and community activities to the extent that they do not interfere with the rights of other residents.
  • Residents cannot be required to deposit their personal funds with the nursing home, and if they request that the home manage their funds, the home must do so according to state and federal recordkeeping requirements.
  • Residents have the right to privacy, including in their rooms, medical treatment, communications, visits, and meetings with family and resident groups.
  • Residents have the right to review their medical records within twentyfour hours of making a request.
  • Nursing home residents have the right to review the most recent state inspection report relating to the home.
  • Residents must be given notice before their room or roommate is changed, and residents can refuse the transfer if the purpose is to move them from a Medicare bed to a Medicaid bed or vice versa.
  • Residents have the right to stay in the nursing home and can only be removed if it is necessary for the resident’s welfare, the resident no longer needs the facility’s services, it is necessary to prevent harm to the health or safety of others in the facility, the resident fails to pay after reasonable notice, or the facility ceases to operate.
  • Nursing home residents and their representatives have the right to thirty days’ notice of a proposed transfer or discharge, and they have the right to appeal.
  • Before transferring residents for hospitalization or therapy, the nursing home must inform them of the length of time that their beds will be held open for their return, called the “bedhold period.”
  • Nursing home residents returning from a hospital or therapeutic leave after expiration of the bedhold period have the right to be readmitted as soon as the first semiprivate bed becomes available.
  • Residents must be informed of their rights upon admission, and must be given their rights in writing if so requested.

Kurt D. Lloyd overcame major obstacles to obtain a $4.35 million settlement in a bicycle-taxicab collision case

Kurt D. Lloyd of Smith & Smith literally and figuratively overcame major obstacles to obtain a $4.35 million settlement in a bicycle-taxicab collision case.

In December 1996, a third year law student at Loyola University Chicago School of Law was riding his bicycle. At the intersection of Dearborn street and Delaware Place, the bicycle and a taxicab collided, leaving the bicyclist paralyzed from the waist down.

The settlement in Donald Hallsten v. City of Chicago, et al., 97 L1092, ranked 35th among 167 state tort settlements of $1 million or included in the Chicago Lawyer 2001 Settlement survey (related stories, pages 8 and 26). It settled Nov. 28, 2000, before Judge Donald J. O’Brien of Cook County Circuit Court.

To be eligible for the survey, settlements had to have been published in Chicago Lawyer, the Chicago daily Law Bulletin or Jury Verdict Reporter between July 1, 2000, and June 30, 2001.

In Hallsten, Lloyd argued that a construction canopy at the intersection obscured the plaintiff’s view and that there were no stop signs.

“We filed the case in January 1997,” Lloyd said. “Within months of that … there was a decision from the 2nd District Appellate Court … that bicyclists were not intended users of roads and streets and could not sue municipalities for defects in the road.”

That was his first hurdle. Later, in 1998, the Illinois Supreme Court, 4-3, upheld the appellate ruling in Boub v. Wayne Township.

To overcome the appellate obstacle, Lloyd walked north on Dearborn Street from Randolph Street to North Avenue. He wrote down every street sign.

“On the bridge on the Chicago River … there was an old sign with three-fourths of its paint, the lettering worn off, that had the picture of a bicycle on it,” he said.

The sign seemed to be directing bicyclists to use the left lane of the one-way street. He went to city archives and found that in the early 1970s, the city declared Dearborn Street part of a historical bicycle route.

But, he said, the city could not find a map of that bicycle route.

He then contacted the Illinois Bicycle Federation, which had a copy of an old map showing that Dearborn, from south of Randolph Street to Lincoln Park, was a bicycle route at one time.

A month before the accident, city workers took down a similar sign at Chicago Avenue and Randolph, he said.

“Some city worker never got up on the bridge and took the sign down. Otherwise, I probably never would have found out about this,” Lloyd said.

“So, even after the Boub decision came down, I was able to show [that] although city streets are not typically designated as bike routes, that by [the city’s] actions with regard to Dearborn, this was a preferred bicycle route in the City of Chicago. So, we showed intent.”

Lloyd said that information let him prevail over the city’s motion for summary judgment, which argued the street was not intended for bicyclists.

Under the Illinois Tort Immunity Act, Lloyd could not sue the city for a bad decision to erect a temporary construction zone or to change a roadway, he said.

But, the canopy had been up for about six months by the time the accident occurred. That was plenty of time for the city to realize the canopy created a danger, he argued.

To prove there was a blind spot at the intersection, Lloyd spent about $50,000.00 for computer simulations.

With specific timing and head turns of the bicyclist, the bicyclist could have stopped, looked, thought no one was on the cross street and still have had an accident, Lloyd said.

Lloyd said he had to show his client, eastbound on Delaware, could have stopped, looked and thought no cross traffic was coming north on Dearborn.

“He did, and he got clocked.” Lloyd said.

The plaintiff received two traffic citations for failing to yield the right of way. The citations were dismissed, Lloyd said.

Lloyd said the Illinois Bicycle Federation has since consulted him about proposed state legislation that would allow bicyclists to sue municipalities like motorists can, which https://www.marsalisilaw.com/ supports.

Lawsuit filed for injuries on Tri-State

Lawyers like https://bakerlegalteam.com/ for a motorist who was seriously injured on the Tri-State Tollway near Lake Forest late morning on Oct. 31 when a dump bed separated from its truck and struck his van, have filed a lawsuit in Cook County Circuit Court. Attorneys for Daniel Blaue of Schaumburg filed the lawsuit against the truck driver and the trucking company, seeking monetary damages in excess of $50,000.

William Kissinger had been driving the semi-trailer northbound on the Tri-State, when the dump body raised and struck the Bradley Road overpass. The impact separated the tractor from the trailer. The tractor skidded and rolled, finally stopping upside down in a ditch. The trailer struck the van and came to a stop across all three lanes. The mangled van stopped on the west shoulder of the highway. Blaue was airlifted to Advocate Lutheran General Hospital in Park Ridge, where he was initially listed in serious condition. Kissinger, 48, of Van Dyne, Wis., was airlifted to Condell Medical Center in Libertyville. There were no passengers in either vehicle and the bridge was undamaged. Blaue suffered internal injuries, fractured ribs, a separated right shoulder, numerous abrasion and cuts and a closed head injury, said his lawyer, Timothy J. Cavanagh.

Named as defendants in the lawsuit are Kissinger and Fox Valley Iron, Metal and Auto Salvage Inc., the Wisconsin-based company which owned the truck and employed Kissinger.

Injured Family’s Case Against Railroad Opens

A railroad company Wednesday accepted responsibility for an accident a year ago in Bloomingdale that severely injured a Carol Stream woman and her parents.

However, the Canadian National/Illinois Central Railroad said it was not responsible for several injuries the victims blame on the crash.

Attorneys gave opening statements Wednesday to a jury in Cook County circuit court in Chicago in the lawsuit the family filed against the railroad.

Railroad attorney John Kelly insisted the company was at fault for not properly securing the malfunctioning railroad crossing at Army Trail Road, just west of Gary Avenue, on Jan. 9, 2001, when the accident happened.

The warning gates did not go down as the train approached because road salt kept the sensors from working correctly, he said. The railroad had issued a warning to train crews to stop before going through the crossing, but the crew of the train involved in the accident was incorrectly told the warning had been rescinded, the railroad admitted.

Kelly also told the jury the accident might have been avoided if the railroad had taken standard safety measures, including manually blocking the crossing as the train went through.

But he contended the driver could have avoided the accident if she had paid more attention to her surroundings.

“Some witnesses heard the train’s horns and whistles as it approached the crossing and were cautious enough to stop and look,” Kelly said.

Lilia Apuello, 40, was driving west on Army Trail Road and over the crossing with her parents when the freight train pulling 63 cars went through the crossing and struck her sport utility vehicle at about 50 mph.

Apuello suffered a brain injury that has left her almost helpless and a broken wrist, her attorney, Terry Lavin, said. He described Apuello as being “like a four-year-old lost at the mall.”

Her parents, Francisca and Fidel Velarde, both now 73, also suffered severe brain injuries in the crash, said their attorney, Tim Cavanagh.

Lavin said Apuello could not have seen the train as it approached from the southeast because of trees blocking the tracks. He also disputed whether the train’s horn was sounded in enough time to give drivers advance warning.

Cavanagh said the accident has left the once-active Velardes homebound and unable to be left alone. Francesca Velarde, he said, suffered severe memory loss and cannot do many simple tasks. Her husband, he said, mumbles incoherently because of the mild traumatic brain injuries he suffered.

The family is asking for an unspecified amount of money from the railroad. The family’s medical bills have exceeded hundreds of thousands of dollars, their attorneys said.

Kelly, however, said he plans to prove to the jury that both Francisca and Fidel Velarde aggravated pre-existing conditions in the accident. Francisca Velarde, Kelly said, already had lost some memory and had slow motor skills because of uncontrolled diabetes. Fidel Velarde aggravated a brain injury he suffered in 1997 when he had a stroke, Kelly said.

The trial will continue today. Attorneys like the ones at https://www.morgansebastianlaw.com/ expect it to last at least two weeks.

Coroner calls firefighter’s death accidental Magdziarz family will sue inadvertent drug’s manufacturer and hospital.

Lake County Coroner David Pastrick announced Thursday a preliminary investigation indicates the death of veteran Hammond firefighter Michael Magdziarz last month was an accident.

The finding appears to eliminate the possibility of criminal charges being filed against the unidentified intensive care unit nurse who allegedly administered the wrong medication to the 51-year-old Schererville man Jan. 7 following open heart surgery at St. Margaret Mercy Healthcare Centers in Hammond.

The Lake County prosecutor’s office said Thursday it’s not planning to look into the matter any further.

Donna Magdziarz, the wife of the man who will posthumously receive Hammond’s Firefighter of the Year award Saturday, said she agrees his death was not a crime.

“A nurse made a horrendous mistake. I don’t believe she intentionally did it.”

Attorneys for Magdziarz family announced Thursday they will file a wrongful death suit against all responsible for his death, including the manufacturer of the wrong drug and the hospital for lack of safeguards to ensure the drug’s proper administration.

A representative for the hospital couldn’t be reached Thursday for comment. The hospital issued a statement the day after the firefighter’s death, admitting its role in Michael Magdziarz’s death and blaming the attending nurse.

Michael Magdziarz underwent successful bypass heart surgery at the hospital the morning of Jan. 7, and according to reports, was recovering until the nurse gave him medication meant for a patient with head injuries. He was briefly put on life support. The family reportedly agreed to remove him from life support after being assured there was no hope of recovery.

Neither the coroner, hospital nor the Magdziarz family have released the name of the inadvertently administered drug. Donna Magdziarz said, “The purpose of the drug is to paralyze somebody who is in distress so they don’t pull their tubing out.”

An initial report released by a coroner’s spokesman Thursday stated they have found evidence of thromboemboli or capillary destruction in both of the victim’s lungs, caused by blood clots. The coroner’s office is still conducting tissue examinations to determine if there was brain damage as well, which lawyers at https://866attylaw.com/ deal with.

The coroner will not issue a finding on what caused the fatal damage before a final autopsy report and coroner’s verdict is finished, probably before the end of this month. Pastrick was unavailable for comment Thursday.

Chicago attorneys Kurt D. Lloyd and Timothy J. Cavanagh, who represent the Magdziarz family, issued a statement Thursday: “This lawsuit will discover the reasons this unfortunate occurrence took place and compensate the Magdziarz family for the most significant loss.

“This was an absolutely preventable occurrence. Had the medication been properly labeled by the manufacturer, and the hospital instituted appropriate procedures, this wonderful family would have their husband, father and friend with them today.”

Jury awards $55 million to accident victims

Rafael Apulello said a $55 million jury verdict may be a stiff penalty for a railroad that ignored safety precautions before a train-car crash, but cannot restore a marriage effectively lost to brain damage.
“She was my buddy– best friend,” Apulello said of his 40-year-old wife Lilia, who functions at the level of a 9-year-old after a Chicago, Central & Pacific Railroad freight train struck her sport-utility vehicle in January 2001. “Now I don’t have it.”

A Cook County jury late Friday awarded $55 million to Lilia Apulello, of Carol Stream, and her parents, 73-year-old Fidel Velarde and 72-year-old Francisca Velarde, of Addison. All suffered brain damage in the wreck.

Under the settlement, Apulello and her husband will receive $34 million and her parents will receive $21 million. Family members said Monday the award will only help them cope with medical and rehabilitation needs.

“It’s not going to bring them back,” said Fidel Velarde Jr., the Velardes’ son and Apulello’s sister. “It’s really not going to do much.”

Canadian National/Illinois Central Railroad has accepted responsibility for the accident, which occurred after a dispatcher approved a 50-mph train through a Bloomingdale crossing that had no functioning warning lights. Authorities said a dispatcher erroneously lifted a “stop and flag” order intended to safeguard motorists. A subsidiary of the company operated the train.

But railroad spokesman Jack Burke said the companies will appeal the award amount.

“We have never denied liability in the case,” Burke said. “We’re going to ask the court to take another look at the award.”

Apulello initially remembered everything and was treated only for a broken hand. Within two weeks, though, she was losing her memory and diagnosed with brain trauma. One of her attorneys, Terrence Lavin, said she was bilingual as a child but now can speak only Spanish and is unable to work, drive or dress herself.

“She’s like a kid lost in the mall unless she’s at home in her own bed,” Lavin said.

Jerry Velarde described how his family takes turns caring for the three, because, until now, they have been unable to afford home health care. He said his father seems fine some days, but on others cannot eat or go to the bathroom by himself.

“We do what we have to do,” he said.

The Velarde’s attorney, Tim Cavanagh, said a safety crackdown is needed at the many railroad crossings in the Chicago area, noting that the same Bloomingdale crossing experienced a false signal on Monday morning, possibly tempting motorists to drive around gates when no train appeared.

“This (verdict) sends an important message to the railroad industry in this state,” Cavanagh said.

Feds take South Carolina charter bus company out of commission

According to reports, a South Carolina tour bus operator has been ordered to halt operations after federal regulators determined that it posed safety hazards to the public. There have been many instances of serious and fatal tour bus accidents around the country in recent years, which is why the Federal Motor Carrier Safety Administration has heightened its surveillance of the industry.

On Monday, the FMCSA issued an order stating that Destiny Tours, of Lake City, South Carolina, and its owner pose an imminent safety hazard after an investigation was launched last month. The charter bus company mainly operates in the southeastern United States.

According to the FMCSA, the bus company submitted an inspection document that had been falsified and failed to conduct regular inspections and repair on the one motor coach it has in its fleet as required by federal safety regulations. More specifically, there was no evidence that the motor coach’s emergency exits have ever been adequately tested. The FMCSA also said the company has been operating despite a federal cease operations order that was issued in November 2010.

Destiny Tours is also accused of failing to monitor its drivers. First, the company is accused of not requiring its drivers to turn in driving logs that keep track of how much each driver is on the road. The FMCSA also found that the company failed to make sure that its drivers complied with regulations concerning controlled substances and alcohol use and testing. Apparently, drivers had been hired before passing drug and alcohol tests, which are required by federal law.

As part of the crackdown on the motor carrier industry, “Operation Quick Strike” was launched this year. The program involves 50 specially-trained safety investigators who target high-risk passenger carriers. In 2013, a total of 18 companies have received out-of-service orders. The hope is that getting these carriers off of the roads with prevent additional tour bus accidents from occurring and need Michigan injury attorneys to step in.

Database tracks mistakes, patient feedback at local hospitals

If effort to improve patient care and awareness, the federal government launched an online database to track patient feedback and medical malpractice or mistakes at local hospitals throughout the country. The list can be found on the website for the U.S. Department of Health & Human Services.

“We asked hospitals to report this information for two reasons: one, to focus on measurement and improvement, and two, so patients and consumers would have the information available,” an official with DHHS.

The database included some interesting admissions from hospitals in the South Carolina area. For example, the databases showed that at Piedmont Medical Center in Rock Hill, there was a rate four times higher than the national average for objects being left behind in patients’ bodies after surgery. The national rate was about 1 instance per about every 10,000 patients.

Before you go in for surgery or treatment, it may be a good idea to check out the database to see how your hospital ranks. If you are concerned by what you find, you could always reschedule your procedure at another health care facility.

Hopefully this online database will provide more transparency within the health care industry. It could also inspire hospitals to institute programs to eliminate medical negligence and encourage better treatment of patients.

Currently, there are far too many people injured or killed each year as a result of medical negligence, and that’s one of the reasons the database was created.

If you or someone you love was injured or killed due to medical malpractice, know that you may be entitled to compensation from the doctors or hospital involved if you work with an auto accident lawyer near you.

Court: Parents can join wrongful death suit against beer baron

In December 2010, a 27-year-old former model died of a drug overdose at the mansion of August Busch IV, heir to the Anheuser-Busch beer brewing throne. Following the death, a lawsuit was filed against Busch on behalf of the woman’s 9-year-old son, and the woman’s parents sought to join the suit as well.

Laws vary from state to state with regard to who can file wrongful death lawsuits after losing a loved one in an accident or crime. However, in all states, close family members like spouses, children and parents can pursue lawsuits against the person or entity responsible for the death.

In this case, Busch had asked the state Supreme Court to bar the woman’s parents from being included as plaintiffs in the lawsuit and proposed a $1.5 million settlement with the woman’s ex-husband on behalf of their son. However, the court ruled that the parents should be included in the lawsuit and settlement negotiations.

According to reports, the woman was found dead in a bedroom at Busch’s mansion on December 19, 2010. An autopsy determined her cause of death to be an accidental overdose of the painkiller oxycodone, but a high level of cocaine was also found in her system.

There were no criminal charges filed against Busch following an investigation. Busch attempted to settle the wrongful death lawsuit from their personal injury law firm, like the ones at https://www.marketmymarket.com/ work with, with the woman’s ex-husband on behalf of their son last year, but now the woman’s parents must also be included. If the parties cannot reach an agreement, the case will be heard in court and Busch could be deposed, or forced to answer questions about the incident under oath.

Copyright 2019