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