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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

A Glimmer of Hope for Plaintiffs on Health Care Liens

Healthcare liens can trip up plaintiffs and their counsel as well as derail reasonable settlements. Since the Illinois legislature “clarified” the obligations of the parties in the Health Care Services Lien Act, 770 ILCS 23/1 et seq., injured victims have generally been on the losing end of health care lien disputes. Yet a case recently decided by the Illinois Appellate Court from the Fourth District gives plaintiffs an avenue to relief. In Turner v. Orthopedic and Shoulder Center, S.C., 2017 IL App (4th) 160552 (July 6, 2017), the court considered multiple arguments to defeat the health care services lien including claims by the plaintiff against the healthcare service provider for consumer fraud and intentional infliction of emotional distress. These claims did not make it across the finish line for plaintiff; notwithstanding this, the court ultimately adjudicated the plaintiff’s health care lien to zero.

In the Turner case, the court looked at the specific provisions of the Health Care Services Lien Act, what was included and not included in it. It rejected any interpretation of the legislative history urged by the defendant because it found the statute unambiguous. The panel concluded that to have a health care services lien on the plaintiff’s settlement proceeds, the defendant had to be the plaintiff’s creditor, in other words, the plaintiff had to owe a debt to defendant for health care services. The existence of such a debt depended not on the Lien Act but, rather, on the contractual relationship between the defendant and plaintiff. The plaintiff was an intended third party beneficiary of the governing contract, the “Participating Provider Agreement” so the court looked to this document for answers. Under this agreement, the defendant was not the plaintiff’s creditor, and the defendant had no “reasonable charges” against her because Blue Cross’s payment of its “Usual and Customary Fee allowance” was, as defendant had agreed, “full payment for each [covered] service.” Thus, the court determined without an unpaid debt owed by the plaintiff, there could be no valid lien on her property.

What this case and its recent predecessor, Barry v. St. Mary’s Hospital Decatur, 2016 IL App (4th) 150961, tell us as plaintiff’s attorneys is to look deeper when evaluating and negotiating health care liens on behalf of our clients. The underlying provider agreements should be obtained from all health care providers claiming a lien. These contracts may be fertile ground for reducing or eliminating liens, putting more dollars in the pockets of injured victims.

Laird M. Ozmon, Attorney at Law

Sharing Safety Strategies for Shared Vehicles

Looking out over the newly unveiled Chicago Riverwalk the city has never looked more vibrant. It’s alive with boats of every size and shape sharing the waterways, and bikes, Segways and pedestrians sharing the roads, sidewalks and paths. The City of Big Shoulders has opened its arms to every mode of transportation and residents and tourists alike are game to experience it. Whether you’re grabbing a Divvy bike, renting a party boat, hopping in a kayak or scheduling the next Segway tour, adventure, and for the unlucky few, potential disaster, awaits.

The way I see it, through the eyes of someone whose job it is to represent the unlucky few, the sharing/tourist economy is fraught with opportunities for novice vehicle operators to collide with peril. Too often people confuse access with skill and fail to appreciate the risks of endeavors like riding an unfamiliar bike in strange urban surroundings or operating a boat on a river filled with many and larger vessels while throwing back a few cold ones. So I’d like to offer some strategies to lower the odds that you’ll be the victim of personal injury.

Don’t approach these activities as if you’re immune to injury or mishap. Here are some basic steps to protect you.

STEP 1: Familiarize Yourself with the Vehicle. When you buy a new vehicle, the first thing you do is get to know how it operates. Rented or borrowed vehicles are no different. Every bike is not the same, no boat stops on a dime, so you need to know how to navigate the basic functions that ensure your safety. Go to a safe area and figure out how to stop, turn and maneuver the vehicle. Make sure it is working properly; return and report defective equipment.

STEP 2: Use Appropriate Safety Gear. Just because you’re on a Divvy bike doesn’t mean you don’t need a bike helmet. Renting a small boat on the river where you can see land very closely on both sides doesn’t obviate the need for a life jacket (anyone can hit their head falling off of a boat and sink to the bottom). At least make sure there are life preserver’s aboard.

STEP 3: Know the Rules. Make sure you understand the rules of operating your vehicle of choice. Follow posted signs for bike lanes and traffic. If you’re in a boat comply with “No Wake” zones, keep a close eye out for other vessels and always have a spotter to back you up. Leave the alcohol for after you park your bike or Segway, or hang up your captain’s hat.

STEP 4: Don’t Take Unnecessary Risks. Just because you’re out of your normal routine or being a tourist doesn’t mean you have to reenact a scene from the latest Marvel movie. One dart out into a lane of traffic or dive into unexpectedly frigid waters can spell disaster. Define fun as new and shared experiences with friends and family, not the rueful moment that ends with you on way to the hospital.

If you follow these rules, then in the unlikely event that something goes wrong, it is more likely that someone or something else is responsible, and if that is the case, please call me at 815.727.7700.

Can Civil Damages Right the Wrong of Police Misconduct?

This month our country was stunned by another jury verdict exonerating a police officer for criminal conduct in shooting an innocent black person. Police officer Jeronimo Yanez of St. Anthony Minnesota shot Philando Castile five times during a routine traffic stop in which Mr. Castile volunteered the information that he was in lawful possession of a firearm.

The video footage of the incident is heartbreaking. Mr. Castile’s girlfriend demonstrated remarkable composure, respect and even deference to the officer as her boyfriend lay dying. Even more gut wrenching is the bodycam footage released this week showing the officer literally becoming unhinged and firing shot after shot into his helpless victim. Then there’s the final excruciating image of the child in the backseat getting out of the car in the aftermath of the shooting.

It’s difficult for me to indict the legal system to which I’ve devoted my career or the jury of twelve that included two members of the black community (who incidentally voted to acquit within the first day of deliberations). I remind myself that we do not see the evidence as they see it; nor is the court of public opinion bound by the rules of evidence or the law as laid out in the jury instructions. I know members of the jury can feel cowed or hamstrung by those instructions, and yet, in my experience, the majority of the time they do their duty and follow the law. But I can’t shake the feeling that justice was not served in that criminal court in Minnesota. So, is there a small measure of solace knowing that the Castile family has a second chance at justice in civil court, the arena in which I practice? A bit, just a tiny bit.

Likely due to public pressure and outcry, the family’s quest for a civil remedy proved less arduous. Shortly after the bodycam video was released this week the City of St. Anthony announced the settlement of the Castile family’s civil case against it for $3,000,000, the limits of the City’s insurance policy. Is this mere consolation? It certainly is. There is no amount of money that can restore Philando Castile to his loved ones, or obliterate the images of that horrific incident. Nevertheless, it does represent a form of justice within the design or our imperfect legal system, something the family can hold onto that represents acknowledgement by the wrongdoer that they indeed suffered a wrong. It empowers them to use the settlement money to honor the memory of their loved one. This may be in the form of their own mental health care or grief counseling, a memorial, a scholarship fund or any number of ways that hopefully sets them on the path to healing.

If they operate as intended, in their purest form civil damages should also have a deterrent effect. No entity, or insurer, for that matter, wants to see its payment of a multi-million dollar settlement on the news crawl, or reported at the city council meeting. And as we know there have been many such settlements recently: Tamir Rice, $6 million, Freddie Gray, $6.4 million, Eric Garner, $5.9 million. Heads do roll, regulators come knocking, people lose their jobs and those in power are taken to account. When the dust settles, the eternal optimist, Officer of the Court in me hopes that better police training programs are implemented, regular and mandatory on-the-job training includes race and cultural sensitivity training and counseling, that concerted and innovative efforts are made by police departments to engage the community and restore trust.

We’ve never gotten this quite right. In the face of so much that is wrong, a firestorm of tremendous loss and injustice, civil damages can carve the way forward; and generally, is the only one that lowers the grade on that steep road toward healing for a nation and every single one of its citizens.

Product Recalls Plague Consumers

Product recalls are constantly in the news these days. Last month four car companies, Toyota, BMW, Subaru and Mazda, settled a class action covering nearly 16 million vehicles that plaintiffs claimed contained defective Takata airbags. The settlement didn’t even address the multitude of personal injury and property damage claims (those are being handled in other litigation); rather it involved the residual consumer damages such as rental car reimbursement. This highlights the many facets of consumer safety efforts and the roads to redress for consumers whether they suffer residual losses, property damage or personal injury.

In 2015 the U.S. automobile industry logged a record number of product recalls, nearly 900, affecting 51.26 million vehicles according to the national Highway Traffic Safety Administration. Some tout this as emblematic of stellar product safety efforts and tip their hats to regulators and manufacturers alike. I’m not quite as quick to reach for the brim.

While I know the system is not perfect, I would advocate for proactive measures in the manufacturing and quality control inspection process so that fewer defective products get to market resulting in less injuries and fewer lawsuits. As the airbag class action demonstrates with the settlement involving the set up of an outreach program for the recalls, product recalls do not always result in substantial remediation of the problem. Consumers may not get the proper notification and/or the hardship in undergoing the repair necessitated by the recall disincentivizes them to get the repair. So defective cars stay on the road, defective products remain in the stream of commerce, and consumers remain at risk.

As a consumer, what can you do to reduce your own risk? First, register the products that you purchase with the manufacturer. Pay attention to the notices you receive regarding the product, follow-up on any notices and follow instructions for recall or return of the product. If you see something in the news about a specific product and you suspect you own it, then check it out. If you do have the product, visit the company website or call or email them for instructions and follow them. The manufacturer should provide you with a replacement or some form of compensation, if not then ask for it.

If you are injured when using a product, i.e. a motor vehicle, tool, or even food, don’t dismiss the possibility that the product is defective. Retain the product or at least photo or video evidence of it and contact an attorney as soon as possible. Our role as attorneys is to demand better products and safety measures and be vigilant when it comes to making companies accountable for the safety of their products.

Learn more about product liability.

Supreme Court Narrows Injured Plaintiff’s Access to Sue Corporate Defendants

The Supreme Court is at it again, sacrificing the rights of plaintiffs for the benefit of the almighty corporation. In its latest turn of the knife, the nation’s highest court has limited the locations where injured personal injury victims may sue corporations. This week the Court decided BNSF Railway v. Tyrrell. The plaintiffs sued BNSF in Montana for claims that occurred outside of the state. The basis for jurisdiction in Montana was that the railroad had more than 2,000 miles of track and 2,000 employees in the state. The Montana Supreme Court found these facts to be sufficient contacts with the state to invoke jurisdiction.

The U.S. Supreme Court said “no” in an 8-1 decision. Rather, it ruled that a corporation cannot be held liable for claims that are unrelated to any activity occurring in the state. State courts may not hear claims by injured parties against companies when they are not based or headquartered in the state or the alleged injuries did not occur there.

This may sound logical at first, until you consider the global economy in which we live. We travel and every day we encounter multi-state and multi-national corporations and their products and services. So, if you’re visiting a neighboring state like Wisconsin and you’re injured using a defective product manufactured by a multinational company like Yamaha but they’re headquartered in New York, you may not be able to sue them in Illinois even though this is where you live and Yamaha does significant business in Illinois.

Under this scenario, the plaintiff is not seeking to sue Yamaha in Illinois because Illinois has laws more favorable to plaintiffs, a strategy we call “forum shopping” and something courts seek to protect against, the victim just doesn’t want to have to travel to Wisconsin to prosecute the case, such as meeting with an attorney, taking depositions and even sitting for trial.

The only dissenting Justice, Sonia Sotomayor, got it right calling it a “jurisdictional windfall” for large multistate and multinational corporations. “It is individual plaintiffs, harmed by the actions of a far-flung foreign corporation, who will bear the brunt of the majority’s approach and be forced to sue in distant jurisdictions with which they have no contacts or connection.” The ultimate irony here is that corporate defendants are the ones that are equipped for and can afford the interstate nature of litigation. Even worse, the overriding effect of this decision will be that less lawsuits are filed as personal injury victims simply can’t afford or don’t have the will to pursue their claims across state lines with such obstacles impeding their access to recovery.

Illinois Appellate Court Lets Stand Plaintiff’s More Than $1.7 Million Win in Medical Malpractice Case

It’s about time plaintiffs get a complete and unequivocal win at trial and on appeal in a medical malpractice case. In Gapinski v Gujrati the jury returned a verdict of $1.727 million for the plaintiff in a case alleging medical negligence against a physician pathologist and her employer for the failure to diagnose cancer that resulted in the patient’s death. 2017 IL App (3d) 150502 (April 24, 2017). The Illinois Appellate Court considered multiple issues on appeal including whether the trial court erred when it barred the doctor and her practice from dual representation during the trial proceedings, an issue of trial management that is wholly within the judge’s discretion (concurring Justice Carter provides an informative exposition on the topic). The Appellate Court also reviewed, the allowance of a supplemental disclosure of the plaintiff’s expert’s opinion and the scope of the testimony of several of her expert witnesses, whether the complaint was barred by the statute of limitations based on when the plaintiff discovered the patient was injured, the denial of the defendants’ motions for a new trial based on the conduct of the plaintiff’s attorney, and finally whether the jury verdict was against the manifest weight of the evidence.

This case will likely be relied on by future med-mal plaintiffs because it appears to shut down many of the typical trial maneuvers of defendants, among them, double-teaming of counsel, accusing the plaintiff of exceeding the boundaries of expert discovery disclosures (when actually exceeding the rules themselves) and trying to limit expert testimony and making statute of limitations arguments that border on the frivolous. The court even foreclosed on defendants’ efforts to paint the plaintiff’s attorney as temperamental and unscrupulous rather than a motivated advocate seeking a fair recovery for his client’s widow. Let’s be clear, some of the defenses would certainly fuel the fire of any plaintiff’s attorney.

Among the more callous of defenses presented by the doctor was that the case was barred by the statute of limitations because the plaintiff suspected cancer before her husband was told by any doctors that he had cancer. This suspicion, according to the defendants, was enough to start the clock on the malpractice claim. Both the trial court and appellate courts rejected that defense and went with the actual day documented in evidence that the doctors gave the diagnosis of cancer. Even worse, the crux of the substantive defense was that the patient was going to die anyway, so the extra two years that cancer was allowed to ravage his body unimpeded didn’t matter. The treating radiologist even testified that he would not have altered his radiation treatment that he believed he was administering to a patient with a benign tumor, if he had known it was a malignant growth. The jury didn’t buy this argument and other defense theories; the trial and appellate court weren’t having any of it either. The court’s opinion in the Gapinski case is a rebuke for all-too-common defense trial tactics meant to marginalize and demonize victims of medical malpractice.

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