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Don’t Let Rule 213 Disclosure Abuses Derail Your Client’s Medical Malpractice Case

I am a ferocious and tireless advocate on behalf of plaintiffs. Some of my toughest battles are in the medical malpractice arena. Juries have a hard time seeing past that benevolent white coat perched atop that white horse even when the victim is a badly injured child or a lost loved one who has been forever changed by a medical mistake. The battle can be a bloody one to be sure.

My work on behalf of victims of medical negligence begins long before the trial. I am a proponent of careful preparation and proactive motion practice to ensure that plaintiffs have every advantage at a fair trial of their claims. One of the major abuses I see is the tactical use of Illinois Supreme Court Rule 213(f)(3) regarding the disclosure of expert opinion. Illinois courts tout a “bright line rule” that if an expert opinion is important or material to the case then the bases for that opinion must be timely disclosed. Notwithstanding this rule I have seen many abuses that too often go unchecked at trial resulting in unfair surprise and prejudice, most often, to the plaintiff.

Some physician experts don’t do their homework during the course of answering interrogatories or in advance of a deposition. It is not the job of the deposing attorney to facilitate the development of the opposing expert’s theory or bases for the opinion—that work is supposed to be done before they are sworn in to testify. Yet I do not see enough judicial activism to hold the party proffering the new opinions or bases to the tenets of Rule 213.

It may seem like plaintiffs are more likely to abuse this rule, but I think the data is skewed. As we all know, the odds are stacked against medical malpractice plaintiffs. Many of the cases that go up on appeal on this issue are the rare plaintiff’s verdicts that are well-funded by the deep-pocket institutional defendants (see, e.g. Morrisroe v. Pantano, 2016 IL App (1st) 143605) while the plaintiffs who suffered a not guilty verdict have fewer resources to challenge the abuses of Rule 213 that potentially sabotaged their trial (however Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7 (1st Dist. 1999) is a beacon of hope holding a defense expert’s feet to the fire).

The common loophole for opinions that violate Rule 213 is that the testimony states a “logical corollary” to the disclosed opinion rather than a new basis. If it sounds like a subjective phrase, it is. I have not seen courts define the term so this argument may carry the day; and with the admission of expert testimony being within the sound discretion of the trial court it becomes a Herculean task to overturn on appeal. Nevertheless, I recommend that plaintiff’s attorneys remain vigilant in both the full disclosure of their own experts’ opinions and bases, and aggressively holding defense experts to the content of their disclosures through motions in limine and tenacious objection forcing trial judges to reign in testimony that could turn the tide against plaintiffs.

Hello Winter! A Good Citizen’s Guide to Snow and Ice Removal

Laird M. Ozmon, Attorney at Law

Wednesday, January 12,  was a typical winter day in Illinois, waking up to the treachery overnight rain, turned to ice, turned to snow wreaked on the roads and sidewalks. Pedestrians and motorists alike face the hazards of snow and ice and the potential for personal injury. You might ask, what responsibilities do I have to do my part to clear or remove snow and ice on my property to prevent injury? The answer is that residential property owners have no duty to clear natural accumulations of snow and ice. Next question, do I face a Catch-22 scenario where I’m only responsible if I actually endeavor to remove the snow and ice and someone deems that I did so negligently? Illinois lawmakers considered that when enacting the Illinois Snow and Ice Removal Act of 1979. The Act grants immunity (freedom from legal responsibility) to residential property owners when pedestrians claim injury from negligent snow and/or ice removal efforts. It is designed to encourage residential property owners to follow their good citizen instincts to clear natural accumulations of snow and ice from their walkways and driveways. So, shovel and salt to your heart’s content, your neighbors will thank you.

But, as is pretty typical with the law, that’s not the end of the story. There are facts that will bring the actions of residential property owners under scrutiny and could give rise to liability. For instance, a property owner can create an unnatural accumulation of snow or ice through such things as improperly placed downspouts or changes to the surface grade. The Act does not protect the owner under such circumstances. Interestingly, the Illinois Supreme Court recently settled a difference of opinion between state courts on the application of the Act.

A plaintiff was injured when she slipped and fell on the sidewalk at her condominium complex eleven days after a snow removal service hired by the condo association cleared the sidewalks. She claimed the ice was formed due to unnatural conditions from downspout drainage and defects in the design and maintenance of the property. The trial court ruled the Act barred the suit. The appellate court disagreed and found the Act’s immunity was limited to the consequences of snow removal efforts so the suit could go to trial. The Supreme Court concurred and adopted this narrow view of the Act stating it does not extend to immunize owners from claims of liability from injuries allegedly caused by icy sidewalks which result from an otherwise negligent failure to maintain the premises. Murphy-Hylton v. Lieberman Management Services, Inc., 2016 IL 120394 (December 1, 2016). The moral to this story is that residential property owners must be mindful of conditions and defects on their property that magnify the perils of our beloved Illinois winters.

Laird M. Ozmon

Laird Ozmon Appears Before Illinois Supreme Court

In May Laird appeared before the Illinois Supreme Court as co-counsel in a seminal case involving a class of taxpayers and individuals and institutions who pay foreclosure fees in the State of Illinois. The case challenges the Illinois Housing Development Act that imposes a fee on litigants as a prerequisite to their access to Illinois courts. The plaintiffs argued equal protection violations and that the offending legislation constitutes a general welfare program that permits the Executive Branch and even municipal officials, including City of Chicago officials, to use the funds for general revenue rather than restricting the use of those funds solely to address persons already within the court system. Consistent with his tireless efforts on behalf of plaintiffs, Laird believes that this legislation should be set aside because it actually imposes a tax, not a fee, on litigants that is used support a general welfare program.

“Friends Don’t Let Friends Drive Drunk” Takes on New Meaning: In-Concert Theory Alive and Well in Illinois

The Illinois Appellate Court reversed a Lake County Court’s dismissal of a personal injury and wrongful death action filed for the death of a child against the boat driver’s girlfriend. The child fell off of an inflatable tube while tubing and was struck by a cigarette boat driven by one of the defendants who was significantly impaired by cocaine and alcohol. The plaintiff’s case against the defendant’s girlfriend was reinstated because it adequately stated a claim under the theory of in-concert liability. The defendant’s girlfriend could be liable because she, 1) actively encouraged him to continue operating the boat at speeds in excess of 40 mph, 2) provided him with money for cocaine and alcohol, and 3) knew of his history of drug and alcohol abuse. Under an in-concert theory, the girlfriend was deemed a contributing tortfeasor whose encouragement of the boat operator constituted substantial assistance and a proximate cause of the child’s death. The court also upheld the plaintiff’s claim for negligent infliction of emotional distress on behalf of the child’s sister who was riding on same tube in the direct path of the boat less than 50 feet from the collision. She saw the collision and feared that she would be struck by boat. While the common sense endemic in the law usually holds adults responsible for their own risky behavior, i.e. alcohol and drug consumption, this represents a departure when another person is an active contributor to the risky behavior that leads to injury. It also presents another potential avenue of recovery for plaintiff’s attorneys to pursue on behalf of injury victims. Borcia v. Hatyina, 2015 IL App (2d) 140559 (April 14, 2015).

Protect your rights as a consumer and patient – You don’t have to surrender to arbitration

With every signature, every click and broken seal, you are potentially waiving a fundamental right—to have your dispute resolved by a jury. The American Association for Justice (AAJ), I am a former Parliamentarian, recently published a report revealing the extent to which American jurisprudence, federal statutes, and corporations have conspired to force consumers to arbitrate their claims rather than bring them to court (view here).

Personal injury plaintiffs have the most to lose in this equation. Arbitrations traditionally favor the defendant in form and procedure. For instance, many nursing homes and assisted living facilities will include a binding arbitration agreement in admission or resident agreements. However, when a loved one is entering into this transaction, they are hardly attentive to their rights in the event that they fall victim to professional negligence, rather they are concerned about the level of health care in their new home.

Consumers need to look at the fine print, especially when they could be injured at the hands of another. Don’t be afraid to ask about the details of the transaction and even reject the arbitration agreement. In many cases, it may not be a condition of providing goods or services but you certainly won’t know until you ask; it is always the best time to consult your attorney, before you give up your rights.

The healthcare system is not part of the equation when considering your own medical malpractice claim

Stunningly high healthcare costs are a constant topic of public debate. The blame gamers cast aspersions far and wide targeting the claimed impact of medical malpractice lawsuits. Time and time again independent studies have disproved this theory. Most recently Johns Hopkins University published a study that demonstrates what little impact medical malpractice claims have on healthcare costs. Studying six years worth of data compiled by the National Practitioner Data Bank, researchers found that high verdicts and settlements in medical malpractice cases account for less than one percent of the annual amount expended on healthcare in the U.S. The data showed that plaintiffs predominantly recovered high verdict and settlement amounts in cases where the patient was killed or injured while under the age of one; develops brain damage, quadriplegia or requires lifelong care; or suffers an anesthesia error. Research also shows that states with damage caps on malpractice claims do not see a commensurate reduction in malpractice insurance rates that would incentivize physicians to practice in the state. Illinois attempted to impose such caps on damages but the measure was struck down by our state supreme court.

The reality is that humans practice medicine on humans and medical mistakes are going to be made. Medical malpractice insurance exists to protect both the doctor and the patient for these inevitabilities. Patients should not be deterred by the phantom impact that medical malpractice claims have on the healthcare system when deciding to pursue a claim for an incident of suspected medical malpractice. Knowledge is power; investigating your potential claim and understanding the options for obtaining compensation for your losses is integral to making an informed, responsible decision about your future. If you or a loved one has been injured due to a mistake by a healthcare provider or medical professional, you owe it to yourself to consult an experienced Illinois attorney regarding your case. You may be entitled to compensation for medical expenses, lost wages, pain and suffering and other damages.

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