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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

Embracing Technology as a Friend to the Physician-Patient Relationship

Technological advances are poised to work wonders in improving our health care system, decreasing medical mistakes and optimizing patient outcomes. However, there is a constant tension between marshaling our resources to serve this virtuous end and preserving information that may ultimately be used in medical malpractice litigation. The idea that our health care system could be held hostage by the slaves to mediocrity who refuse to face the fact that we are all fallible human beings is simply outrageous.

Certain software platforms allow patients to have an office visit or follow-up appointments and record their interaction with physicians. Patients are then allowed to access information stored digitally that eliminates the human error endemic to physician-patient encounters that are plagued by stress, confusion and denial. The ability to digitally access and refer to physician advice promotes early intervention and ensures patient compliance. Even better, it is likely to reduce adverse outcomes which ultimately decreases the incidents of medical malpractice and the litigation that arises from it. This reasoning is so logical, so clearly rational, yet it will likely take years before health care professionals will embrace it. Why? Because medical professionals believe anything that might hold them accountable for a mistake is detrimental to them.

Lawyers are often accused of twisting the truth to garner a verdict. However, the real truth is that anyone can make a mistake and the accuracy of what did occur is no better preserved than through digital recording. When health care professionals make mistakes, people suffer and die. The stakes are high to be sure and that is why professional liability insurance is there to enable health care professionals to practice and be human at the same time.

So rather than blame the record, or seek to abolish the record to serve their own self-interest, medical professionals should welcome the documentation and memorialization of their treatment advice and their best efforts on behalf of their patients. In most cases, it means patients are getting the highest standard of care and have the tools to successfully follow care advice and manage their expectations. This access is the key ingredient to a functional, valued and long-standing physician-patient relationship and a health care system with fewer medical mistakes.

And, if I had my way, surgeons would wear body cams. After all, it’s an accepted tool within our police departments, why not our in operating rooms? No more one sided, self serving and sometimes false testimony by a physician-the very reason our police are now required to use them!

Ozmon Continues to Fight for Victims of Alpha-1 Antitrypsin Deficiency

Ozmon Law advocate of alpha-1 antitrypsin disorder

Alpha-1 Antitrypsin Deficiency, known as A1AD or AATD, is a genetic disorder that is commonly misdiagnosed as chronic asthma or COPD. Its early detection and non-invasive treatment allows patients to lead a normal life. On the other hand, the failure to timely diagnose it through a simple blood test and treat the disorder, can lead to tragic circumstances—a progressive destruction of lung tissue causing severe loss of lung function and a reduced life expectancy.’

In his 37-plus years of practice, Laird Ozmon has unwittingly become a champion of victims of delayed Alpha-1 diagnosis. He pioneered this litigation having garnered one of the first settlements, $8 million on behalf of his client. He has gone on to recover substantial amounts of money from physicians and their medical practices for their medical malpractice in failing to timely diagnose and treat Alpha-1 patients.

Recently Laird recovered a substantial amount on behalf of a couple who suffered the devastating effects of the spouse’s diminished lung function, inability to work, and a reduced life expectancy. The physician who treated him over a period of 14 years failed to order the tests that would have conclusively established Alpha-1.

Laird is a vocal advocate on behalf of Alpha-1 sufferers. He believes anyone who is diagnosed with chronic asthma or COPD, in their 30s and 40s, should undergo a simple blood test to rule out Alpha-1. If you think you are a victim of delayed diagnosis, please contact Laird at 815.727.7700 or online here.

The more he publicizes the heartbreaking effects of this disorder in contrast to the ease of detection and effectiveness of treatment, the more physicians will consider it in their differential diagnosis and perhaps it will be included in the regular post-natal testing protocol. Then maybe all of us will breathe a little easier.

Learn more about Alpha-1 Antitrypsin Deficiency (AATD)

Attorney Laird M. Ozmon

There is Honor in the Legal Profession, But That’s Not News

Ozmon Law - Plaintiff’s Attorneys Bear All of the Risk on Behalf of Their Clients, but Nobody Talks About It.

The narrative about lawyers in the past few decades has certainly not been a fairytale or the stuff of fictional heroes like Perry Mason or Atticus Finch. Many attorneys think we have the O.J. Simpson defense team to thank for the abysmal reputation of our profession. Yet in the final analysis, like anything, the bad ones get the press and the good ones press on.

When I finally settled on walking in my father’s footsteps and opening my own practice, I knew all of the risks and had fully considered them. The biggest risk, that I would pour everything I had into a case on behalf of a plaintiff, and recover nothing, did not daunt me. In my view, it is what makes my profession, being a plaintiff’s attorney, a noble one.

Few people fully understand the contingency fee system that gives every injured person access to justice regardless of their socio-economic status. Under the law and the applicable Code of Professional Ethics, attorneys who represent injured victims may take a contingency fee that is generally between 33 and 40%. If the attorney does not recover for the plaintiff through settlement or verdict, the attorney is not entitled to a fee; in other words, thirty-three percent of zero is zero. This system allows plaintiffs to pursue justice without paying a retainer or incurring upfront expenses.

However, the law does not allow injured victims to recover any of their legal costs from wrongdoers who caused them to incur those legal fees. Under the law plaintiff’s attorneys may recover the expenses they advance on behalf of their client even if they obtain no money. These expenses can reach into the tens and hundreds of thousands of dollars, particularly in medical malpractice cases where expert witness fees and depositions and discovery costs are extremely high.

In my more than 35 years in practice I have never asked a client to reimburse the expenses I paid to pursue his or her personal injury case. I am proud of my record of recovery on behalf of the clients I have represented. In the rare instances when I am not successful, I am content to bear the burden of that loss rather than impose yet another hardship on my client. While this may not be newsworthy, it is a personal reminder that there is meaning in my work and honor in helping people when they are most vulnerable.

Attorney Laird M. Ozmon

Fighting for a Plaintiff’s Right to a Jury Trial

You may not have noticed it with all of the other bad news these days, but your right to a jury trial in a civil action is being eroded. Between the Federal Arbitration Act that allows the inclusion of arbitration agreements in a number of consumer contracts and the latest affront to plaintiff’s rights sanctioned by the U.S. Supreme Court allowing such provisions in nursing home admission agreements, juries are being replaced by arbitrators. What does this mean to you who believed your right to a jury trial was firmly woven into the fabric of this country?

When arbitrations result in monetary awards they are estimated to be 30% lower than jury verdicts. This has the cascading effect of lower settlement offers in cases subject to binding arbitration. Overall, the conventional wisdom is that the specter of binding arbitration favors defendants and makes them less likely to settle cases when they can enjoy the contained costs and security of an arbitration proceeding presenting a case before a retired judge or attorney as opposed to a jury of twelve of the plaintiff’s peers. Even better for the defense bar, arbitrations are often cloaked in secrecy; thus subverting precedence, a cornerstone of jurisprudence.

That is why it is especially shocking that as a matter of public policy we are allowing binding arbitration agreements to be required of individuals on admission to an elder care facility like a nursing home. Talk about duress that under any other circumstances would void a contract! The law of the land today is that nursing homes may require residents to sign an agreement that contains a binding arbitration provision as a condition of admission. Picture your elderly loved one, in the process of transferring from a hospital, unable to return home, filled with anxiety and fear, perusing a voluminous contract with a binding arbitration provision and no where else to go. It is atrocious.

As an advocate I will always fight for your right to have your case heard by a jury. As a consumer, you must also advocate for yourself. This is the best way to guarantee your rights. Read the contracts you sign. Never be afraid to ask for the arbitration provision to be stricken from any contract. Be especially vigilant when the agreement could impact your rights concerning personal injury. Likely the person or company on the other side of that contract is more interested in closing the sale. So if you force the issue, they will roll the dice, giving up arbitration, instead, taking the chance on facing you in court. If that happens, I will be on your side.

 

Laird M. Ozmon, Attorney at Law

Medical Malpractice Defendants Game the System by Pointing the Finger at Victims

The National Center for Health Statistics reported in 2016 that medical malpractice is the third leading cause of death in the United States. This brings into full relief the reality of how many injured malpractice victims are never compensated. To compound the unfairness, the negligence of health care providers is rarely publicized while the spin machine for doctors and insurance companies spew their propaganda of excess jury verdicts and a fictitious malpractice crisis. This allows the plaintiff to fall victim again and again.

The medical malpractice cases I have tried over the past few years have exposed this insidious trend in defense strategy that requires more activism on the part of the players. Doctors employ questionable ethics by explaining obvious absences of crucial medical histories or important patient conversations in their records with the stock answer that it was asked or known based upon their “custom and practice.” The old medical adage of “if it’s not charted, it did not happen” cannot be the rule only when it benefits physicians, it must be the universal rule—even when it hurts the doctors.

These ethical shortcomings are further encouraged by insurance companies through their lawyers creating fictitious scenarios to blame the injured patient and oftentimes without properly pleading such a defense. Rarely have I seen defendants plead the affirmative defense of the plaintiff’s contributory or comparative negligence as required under Illinois law (see Green v. University of Chicago Hospital and Clinics, 258 Ill.App.3d 536, 631 N.E.2d 271 (1st Dist. 1994). Yet in every case the defendant seems to get away with insinuating the patient is somehow culpable for his or her injuries, to the great detriment of plaintiffs.

While it is my standard, prudent practice to seek to bar any such implication via a motion in limine, which is often granted, the hints, innuendo and “wink-wink” inferences just keep coming in defiance of Illinois law. And there is no doubt that this practice severely prejudices the plaintiff’s case. This is particularly true in medical malpractice cases where research shows the jury is biased in favor of the “benevolent doctor” as opposed to the injured victim. Psychologically the implication that the plaintiff was somehow at fault seems to empower the jury to find for the defendant.

Notwithstanding this, Defendant’s rationale is always cloaked in some seemingly innocuous pretext, i.e. they are just giving a timeline of the facts (that included the plaintiff did not follow-up with his or her own physician). This practice needs to be quashed by the trial judges in control of the jury trials. This means scrutinizing the pleadings and enforcing the law applicable to pleading practice, granting the plaintiff’s motions in limine and strictly enforcing these rulings at trial, including granting motions for contempt or mistrial. Many of these cases should be referred to and reviewed by the medical associations charged with the oversight of the profession. Until medical malpractice defendants clearly understand that this practice will not be tolerated, they will continue to push the bounds of the law and ethics and impeding personal injury plaintiffs’ access to justice. Maybe then the playing field will be such that plaintiffs can get a fair trial!

 

Laird M. Ozmon, Attorney at Law

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