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Plaintiff’s Attorneys Unite! Illinois’ Top Court Calls for Amendment of Contribution Act

Amendment of Contribution Act

The Illinois Supreme Court has issued a call to action to the legislature regarding the fair and equitable apportionment of the damages between defendants in a personal injury lawsuit. On February 16, 2018, in Antonicelli v. Rodriguez, the court issued an opinion that allowed the most culpable defendant in an auto accident case (an intoxicated driver) to enter into a good faith settlement with the injured plaintiff for the limits of his $20,000 insurance policy. This left the other defendant, the employer of the driver of the truck following behind the plaintiff when the settling defendant made a U-turn in front of her, potentially holding the bag at trial. Make no mistake, the truck company had a bigger bag and deeper pocket, so it was in the plaintiff’s interest to take the policy limits settlement from the driver and focus on the other defendant at trial.

The core issue here is a broader one—whether the jury may be allowed to apportion blame among all culpable defendants regardless of whether all are present actively defending themselves at trial. The defense lawyers admitted their primary objective was to get the settling defendant’s name on the verdict form eventually used at trial so they could reduce their liability by the percentage the jury found attributable to the settling defendant. The truck company tried to distinguish the case calling the driver’s conduct intentional because he was high on cocaine. The Court was unmoved, having found no prior precedent that a traffic collision caused by an intoxicated driver is an “intentional tort.” Moreover, the plaintiff made no such allegations.

The Illinois high court said the statute that governs this question, the Joint Tortfeasor Contribution Act, did not provide for such a result. Nevertheless, there are competing interests vying for consideration here. The purpose of the Act is to encourage settlements and equitable apportionment of damages among defendants. The purpose of our civil justice system is to fully compensate injured victims. Consequently, if defendants settle, then do not defend themselves at trial, the evidence a co-defendant produces pointing a finger at them will go unanswered. This would likely result in empty chair defendants being found disproportionately responsible for damages when their damages have already been fixed based on a good faith settlement.

Essentially the Court determined the injured plaintiff’s risk of not recovering full compensation outweighed the non-settling defendant’s risk of having to pay more than its “fair share” of the jury award. Current law levels the scales a bit by allowing the defendant to set-off the amount of the settlement without the jury’s knowledge so it doesn’t factor into their calculation. This would result in a $20,000 deduction from a jury verdict in the case here.

This initiative will require Plaintiff’s attorneys to meet this call to action with full force to insure any amendments to the Contribution Act do not diminish the plaintiff’s right to full and fair compensation. In other words, we have to do what we do best, fight for the rights of injured victims.

Attorney Laird M. Ozmon

Stranger Things: Plaintiffs Multi-Million Dollar Medical Malpractice Verdicts Survive Appeal

Medical Malpractice the 3 lead cause of death in the U.S. | Ozmon Law

As I mentioned in my last blog, medical malpractice cases are steep uphill battles. Nearly 80% of trials end in a defense verdict despite medical error being the nation’s third leading cause of death. The appellate court is an equally unfriendly place for victims of medical negligence. But recent rulings have brought some moderately good tidings for plaintiffs.

To give you a brief overview, Arient v. Alhaj-Hussein involved a wrongful death case on behalf of a patient who died after a medical procedure rendered her a paraplegic. A Cook County jury awarded nearly $8 million to her estate. Even though the Appellate Court found reversible error at trial, the court upheld the verdict. The errors related to three of the plaintiff’s five alternative claims of negligence. The defendant did not ask the jury to separate its verdict according to those claims using special interrogatories (specific questions to the jury to be answered when it renders the verdict). Instead it submitted a general verdict form, so the court refused to reverse because it had no way to determine on what acts of negligence the jury based its verdict.

Another appeal brought mixed results after a heartbreaking turn of events roiled plaintiffs in the case of Jefferson v. Mercy Hosp. & Med. Ctr. The plaintiff claimed permanent brain damage due to medical negligence. But after the case was submitted to the jury and before it rendered a verdict for over $22 million, $15 million of which was allocated to future damages, the plaintiff died. The defendant hospital sought to overturn the verdict or at least reduce the amount of the damages. Having never reviewed such circumstances, the Appellate Court ruled that until the moment the verdict is rendered the case may be transformed into a survival action if the plaintiff dies. In that event, the plaintiff is not entitled to damages that accrued after the plaintiff’s death. This ruling allowed the plaintiff’s estate to retain just over $7 million in past damages but the family lost $15 million in future damages the plaintiff would not suffer due to her death. The family will likely be able to pursue a wrongful death claim they filed post-trial by way of an amended complaint; those proceedings were stayed pending this appeal.

In both cases the defendant’s strategy concerning verdict forms or special interrogatories rankled them on appeal. In Jefferson the defendants objected to plaintiff’s tendered instruction seeking to separate past and future disfigurement. Without this distinction, the court could not discern what portion of the jury’s $2.5 million award for disfigurement was attributable to future damages so it let the award stand. The key takeaway for trial attorneys is that the preparation of the documents memorializing the jury’s verdict should be tailored to each case; conventional wisdom may not always apply.

Attorney Laird M. Ozmon

3 Things to Know about Birth Injury

The arrival of a baby should be a happy and joyous occasion, but sadly, birth injuries occur all too often around the country.

A birth injury is a health problem that an infant is born with that, in most cases, is completely preventable. These injuries may be the result of medical malpractice, and the mistakes often have catastrophic consequences for the child as well as the parents.

Ozmon Law is experienced in birth injury litigation and can work with you to help you understand your rights. Here are 3 important things to know about a birth injury:

Read more at TheHeraldNews.com

How to Recognize Medical Malpractice

Attorney Laird M. Ozmon

Medical error is the No. 3 leading cause of death in the U.S., according to a 2016 Johns Hopkins University Study.

While cancer and heart disease gain a lot of media attention, medical malpractice claims are not as widely reported.

Ozman Law believes is in everyone’s interest to zealously seek to ensure the medical profession is always meets the standard of care. Because human error is a universal condition with no cure, professional liability insurance exists.

Medical Malpractice Law can be generally defined as negligence on the part of a physician, hospital or other health care professional, which result in physical and financial injury as a result of that negligence. Medical malpractice can involve an injury or even death that occurs in the course of medical treatment.

Read More at TheHeraldNews.com

Beating Grief with Gratitude: Finding Happiness After a Loss

“Happiness is not about what the world gives you, it’s about what you think about what the world gives you.”

Google executive, Mo Gawdat, made this keen observation in a video about his equation for finding happiness in the face of tragedy. View video.

Like many of my clients, his life changed in an instant—from a happy family holiday to the realization of his worst fears, the death of his son, all in the span of four hours. He describes the power we have over how we choose to see our lives and manage our expectations. He takes the “glass half full” approach and challenges us to be grateful for what is in the glass and ask the question, can we do anything about the half empty part?

Nothing this loving father could do would bring his son back. Rather than burrow inward and become paralyzed by his loss, he chose to accept life as it is, take each day and make it slightly better. As an advocate for victims of tragedy, this is a recurring theme in my work. Nothing—no dollar amount, no oral argument, no jury verdict or judgment can turn back time, bring a victim of wrongful death back or make one who is personally injured whole again. Victims who seek this unattainable expectation will never find it, particularly in the justice system.

It is my job, and my privilege, frankly, to manage expectations as I pave the way to ease the burden to ensure the sense of contentment and happiness comes more swiftly to my clients. When we team up with victims and their loved ones on the road to recovery, plaintiff’s attorneys are essentially executing Mr. Gawdat’s plan to make each day incrementally better so our clients can see all the water, even if it’s in a different glass.

As the Thanksgiving holiday approaches, we all should give a bit more credence to gratitude not only for what we have, but also for what we do not.

The victims of wrongful conduct are often saddled with lifelong disabilities and deprivations from which most us have been fortunately spared. Such wrongful conduct deserves rightful compensation. This does not necessarily mean that injured victims are thereby made whole again; they often never can be. However, a system of justice that seeks to alleviate some of their anxieties and fears affords them a chance to focus on the beauty in what they had while they had it and to wake up every day with an eye toward making their futures just a little bit better. Hopefully, then one day, they may wake up feeling like they never thought they would feel again: happy.

Attorney Laird M. Ozmon

Medical Malpractice Attorneys Ignore Pleading Hospital’s Institutional Negligence at Their Peril

Photo of Gavel and stethascope portraying Medical Malpractice Attorneys Ignore Pleading Hospital’s Institutional Negligence at Their Peril

Medical malpractice cases are no picnic. Of course, they are most taxing for the injured patients and their loved ones. As advocates for them, plaintiff’s attorneys willingly bear the burden of putting on the most powerful, effective case for plaintiffs. What that looks like varies with each case.

It is no secret that we are looking for at least one, if not more than one, deep pocket to ensure our client’s full recovery. Oftentimes it feels like a game of CLUE, “was it the surgeon, in the operating room, with the retractor” or “the nurse practitioner, in the emergency room, with the syringe?” The experts we enlist to evaluate the case are so focused on the players coming to life in the patient medical record, they might not immediately consider the policies and procedures put in place by the hospital that set the series of unfortunate events in motion. This is the stuff of institutional negligence, and it is powerful indeed.

Under Illinois law, hospitals and HMOs may be liable for acts of negligence as an entity, not those of their employees or agents; these institutions have an independent duty to assume responsibility for the care of their patients. Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326 (1965) and Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278 (2000). This includes enacting polices and procedures to meet that duty. For example, institutional negligence may come to light in a hospital policy that prevented vital information from getting to those treating the patient in a timely manner. So when the hospital is aggressively disassociating itself from its physician staff arguing they are not its agents and pointing to its airtight consent form to prove it, plaintiffs attorneys need to be unearthing every stone to establish the managerial and administrative actions that focus the blame right back on the entity.

A hospital’s institutional negligence should be explored from the inception of every medical malpractice case. Even if the initial expert evaluation and opinion does not reveal it, this theory should be revisited once discovery commences. Plead it in a separate count, not in a count with the negligent acts of the hospital’s employees or agents under a respondeat superior theory. I am not alone in imagining the feeling of dread when the specter of a hospital’s institutional negligence comes to light well after the statute of limitations has run. If you haven’t even considered it, relating such claims back to the original filing of the complaint is not a lay-up by any stretch. See Franklin v. Little Co. of Mary Hosp., 2017 IL App (1st) 161858-U (allegations of hospital staffing issues or its failure to have properly functioning equipment in its emergency room that first came to light on deposition did not relate back to original claims).

So remember to include institutional negligence on your list of medical malpractice suspects. This makes it all the more likely the mystery will be solved like it has been for me for years: it was Mr. Ozmon, in the courtroom, with the verdict in the millions for the plaintiff.

Attorney Laird M. Ozmon

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