As Valentine’s Day comes and goes, I’m reminded of the biggest heartbreak I’ve suffered in recent years. It involved a wife and her two young children who lost a beloved 32-year-old husband and father to medical negligence.
We knew it was an uphill battle as we litigated in an unfriendly county where self-interests were at stake in a tight knit community in which the hospital that employed the defendant doctor was a big political and employment player. In spite of this, for as long as I have prosecuted medical malpractice cases on behalf of patient victims and their families, I had not had a case about which I felt so confident.
Going into the trial we had a seven-figure offer that was a significant sign of defendant’s concerns, but was insufficient to compensate the victims. The defendant doctor was on the record admitting to facts that were indicative of his liability, while also completely conceding damages. In my entire career I had never had a physician testify as this defendant did that if he had transferred the patient from the urgent care across the hall to the emergency department (ED) the young father would have had the proper cardiac treatment and lived a long life instead of dropping dead of a heart attack just two weeks later.
In another career first, the coroner testified as an independent witness the patient’s autopsy showed the young father was indeed having a heart attack when the defendant doctor was treating him in the urgent care and sent him home rather than to the ED on the premises.
Although we fought mightily, inexplicably, the jury ruled in favor of the doctor. We were dumbfounded and heartbroken.
Never fear, I thought. This is a case tailor-made for a successful appeal. Nothing neutralizes an unfriendly venue like the Appellate Court that encompasses a greater geographic area and supposedly takes a fresh, independent look at the case. Even though appeals of jury verdicts are rarely reversed, we soundly believed at the very least the three appellate justices would give this family a new trial. That was not to be! It turned out the appellate court was equally inhospitable.
If anything, we trial lawyers are relentless, but our hearts can be broken too. So we filed for permission to appeal to the Illinois Supreme Court where few cases are given access and almost no medical malpractice cases are heard. In addition to the years of countless, uncompensated hours and the expenses of over $200,000, it appeared neither my client, nor I, would recover anything.
Notwithstanding that the odds were stacked against us, still I could not surrender. The final blow came just two weeks ago when our petition for leave to appeal was denied marking the end of the line for our shattered clients. Our hearts will always bear the scars of this blatant injustice, the consequences of which this young family will have to endure for the rest of their lives.
Attorney Laird M. Ozmon
I like that the indomitable Ruth Bader Ginsberg and I have something in common. She started out as a trial lawyer, just like me. Not the much-maligned caricature of a greedy, unscrupulous individual; but the kind of person who puts her time, money and effort into fighting for the rights of this country’s disenfranchised citizens like women and minorities.
At this country’s inception the right to vote was restricted to white men. Women and people of color were treated like chattel and routinely suffered discrimination and injustice. They have had to fight for every right they have today. It is indisputable that trial lawyers stood shoulder-to-shoulder with them to get and keep these rights.
Over 100 years ago blacks and women finally earned the right to vote. In 1964 Congress passed Title VII of the Civil Rights Act prohibiting discrimination in employment. In 1972 Title IX outlawed discrimination against women and girls in education. Changing the law was just the beginning. The scope and enforcement of these laws and others like it have been the subject of litigation since their passage and stoked the fire in every trial lawyer who burns for justice for all.
This history has taught us justice does not come without a fight. The law evolves because trial lawyers are constantly pushing against the forces of evil and ignorance. We are advocates for civil and human rights and against discrimination.
Before she joined the Supreme Court in 1993, Justice Ginsberg was on the front lines of protecting the rights of women gained in Title IX. Today women fill over half of our universities and a record number are finally making their way into public office with 131 women elected to our current U.S. Congress. Her work is directly linked to these monumental advances.
In the course of my legal career Illinois had a $10,000 cap on damages for victims under the Wrongful Death Act. This means regardless of how egregious a person’s conduct was that caused an innocent person’s death the most their family could recover was $10,000. Over the course of my career, tort reform advocates sought three times to extend caps by imposing them on damages in personal injury cases. As president of the Illinois Trial Lawyers Association I spearheaded the fight to declare such caps unconstitutional. Today these caps don’t exist in Illinois. Victims have access to full and fair compensation without artificial barriers. So instead of lumping us in with the bad guys, think of the tireless Ruth Bader Ginsberg who typifies us trial lawyers and all that we give to right wrongs and cement positive change.
Attorney Laird M. Ozmon
I’ve had a lot of cases over the years, mostly good and some that turned out not so good. When I take a case I am committed 100% and ready, willing and able to take it to trial—and my colleagues on both sides of the aisle know it. Having built a reputation for tenacity and even ferocity, I put it to work for the benefit of my clients.
Very few cases are so cut and dry that either party or their counsel can coast through the litigation or ride an early assessment regarding liability to an inexpensive and early disposition. Practically speaking cases are not resolved based solely on their merit. Many factors weigh in including the parties involved and their counsel, as well as the jurisdiction where the case is filed, some are less friendly than others.
Defense attorneys and those who pay their hourly bills (usually insurance companies) assess cases based also on the reputation of plaintiff’s counsel, i.e. his success rate at trial or in garnering large settlements, or her willingness to see the case through to trial or even to appeal an adverse decision when warranted. These qualities make an opponent formidable which sets the stage to negotiate favorable settlements.
A formidable opponent tips the scales in the plaintiff’s favor when the defendant conducts a cost benefit analysis. Does the defendant want to incur the significant expense of going to trial and risk losing, or even if they win, slogging through a costly appeal? In many cases, faced with such strident and vigorous opposition, the defense will value the case at a higher amount and manage the expectations of the defendant party in anticipation of an unfavorable result.
Maintaining a rigorous and unyielding posture throughout the litigation consistent with a tenacious reputation puts the plaintiff in the best posture for settlement. I have often advanced creative and strenuous legal arguments to overcome motions to dismiss or for summary judgment and convinced the judge to allow the jury to decide the case.
Once we’ve overcome such obstacles to getting a trial, we are now in a position to negotiate an advantageous settlement. And if not, then that’s what trials are for and that’s why I’m a trial lawyer.
Attorney Laird M. Ozmon
Litigation is expensive. Speaking from the plaintiff’s perspective, costs related to a personal injury claim are steep. Plaintiff’s attorneys do not relish spending money; but the fact of the matter is that in order to prove (or disprove) a case, the parties must hire expert witnesses. Expert witnesses command fees in the thousands of dollars. Costs are driven by simple supply and demand.
Experts are pivotal in proving cases alleging medical malpractice, products liability, slip and fall, or negligent operation of a vehicle including cars, trucks, trains, motorcycles or airplanes. When an issue involves any matter outside of the ken of the average juror, like, stopping distances, the standard of care of a health care provider, or the defective nature of a product like a medical device or piece of machinery, a plaintiff is required to provide expert testimony supporting the cause of action. In the absence of such testimony the case will likely be dismissed well before trial and the plaintiff will get nothing.
Any personal injury case demands medical experts, from treating physicians to retained experts, who provide the testimony necessary to support the plaintiff’s claims for damages. A doctor who treated the plaintiff may testify to the nature of her injuries, but she may need to hire an expert to render an opinion on the likelihood of long term limitations, reduced life expectancy or future medical intervention necessary. Without such expert testimony the plaintiff may not even be allowed to ask the jury for an award of money damages to compensate him for the full extent of his injuries.
There is a direct correlation between compelling expert testimony from a qualified, convincing expert in the field and a jury verdict awarding full and fair compensation to the plaintiff. While the price tag is high, it is money well spent, and the plaintiff does not have to pay unless we win. Plaintiff’s attorneys willingly accept the risk as demonstrable evidence of their commitment to their client’s case.
Attorney Laird M. Ozmon