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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

A Primer for Potential Victims of Medical Negligence: How to Recognize Malpractice

Medical error is the No. 3 leading cause of death in the U.S. according to a 2016 Johns Hopkins University Study. What does this mean? It means the hue and cry claiming medical malpractice claims are spurious and the stuff of an overly litigious population seeking to stymie the best efforts of our country’s health care professionals is hogwash. It is in everyone’s best interest that we zealously seek to ensure the medical profession is always required to meet the standard of care, but human fallibility is a universal condition with no cure. That’s why there is professional liability insurance.

So how do you know if you or a loved one have been the victim of medical malpractice rather than one of the unlucky few who landed on the wrong end of the statistical spectrum with a bad result that does not necessarily equate to bad medicine?

Consider first the definition of “medical error” which is an unintended act (omission or commission) or an act that likely could not achieve its intended outcome, the failure to carry out an intended course of action or devise one, or a deviation from providing proper care. When a patient is harmed by medical error it may occur at the individual or system level, i.e. doctor, nurse, or hospital.

Based on the above definition, the first step in assessing whether you or a loved one might have been a victim of medical negligence is determining whether medical treatment resulted in unintended or unexpected adverse outcomes. If the prescribed treatment did not result in a cure or resolution of a medical condition, was the possibility of the adverse outcome thoroughly explained at any time prior to treatment? Does the adverse outcome appear to be remote or unrelated to the intended procedure?

Even if it was explained, it does not necessarily mean no malpractice occurred. This is particularly true when all other indicators point to a positive outcome, i.e. the patient was otherwise in good health, had no negative history or vigilantly followed medical instructions. Other times, you might just have a gut instinct that something isn’t right. Key indicators may be that the health care professionals suddenly undergo changes in demeanor and appear equivocal or less candid. Any one of these should prompt you to seek out a legal opinion. There are no disadvantages or costs to you; on the contrary, it puts peace of mind within reach. However, it should be kept in mind that even the best malpractice cases are often difficult, time-consuming and expensive. Considering malpractice lawyers generally work on a contingent fee and front all expenses, only serious cases normally merit action.

Medical malpractice attorneys bear these burdens so their clients don’t have to. We will obtain and review the relevant medical records. Then, if warranted, we will retain a qualified health care professional to render an opinion as to whether negligence has occurred. Under Illinois law, a plaintiff cannot pursue a claim for medical malpractice without this opinion supporting their claim. The message here is; do not be intimidated by propaganda intended to persuade people to ignore reality. Medical negligence occurs enough to put it in the Top 3 leading causes of death, not even accounting for non-lethal injuries. If you suspect serious medical malpractice, enlist a qualified plaintiff’s attorney to evaluate your case and, if meritorious, get you a fair settlement or judgment against the culpable health care professional or institution.

Attorney Laird M. Ozmon

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

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

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