It’s the Dawn of a New Day: More Zealous Advocacy of Medical Malpractice Cases Against Hospitals

Professional negligence cases against hospitals and doctors practicing there are fraught; they are minefields designed to destroy a plaintiff’s case against each potential culpable party. At times it feels like we, as plaintiff’s attorneys, are caught in a game of whack-a-mole trying to keep our client’s case alive and ensure that those responsible are parties to the case when it comes time to compensate the victims. Standing in our way are hospitals that structure strict independent contractor relationships with the physicians who staff the hospital as if ghosts perform the healthcare services provided within its walls. Then there are the physician foundations formed around hospital physicians to shield the proper defendants and create yet another layer of insulation. What’s more, since the 1993 Illinois Supreme Court decision in Gilbert v. Sycamore Mun. Hospital established the elements of apparent agency in the medical malpractice context, hospitals have refined detailed patient consent forms principally designed to defeat claims of vicarious liability based on allegations that the physicians are the hospital’s apparent agents. Many such consents have withstood legal challenges to the detriment of plaintiffs. So when can a hospital be held accountable for medical malpractice? How does a plaintiff’s attorney zealously advocate and obtain a comprehensive recovery for his or her injured client? The answer, dig deeper and think harder.

Of course hospitals are liable if employees and staff members like nurses, physician’s assistants or technicians participate in the medical negligence, that’s the easy answer. Generally, though, the focus is on the physician for the most culpable conduct. So when attorneys are having a potential case reviewed by a medical expert, we should not look at the physician and hospital staff conduct in a vacuum; rather we must consider the hospital’s institutional duties, in which the physicians have instrumental roles, for potential areas of negligence. Did the hospital policy and procedures create a system or set in motion an event that was a contributing cause of the medical negligence? Did the hospital undertake measures to protect its patients and prevent incompetent physicians from practicing in the hospital? Institutional negligence should always be on the checklist of potential claims against a hospital when an injured patient or their family seeks the services of a personal injury lawyer.

This brings me to yet another tool in plaintiff’s toolkit against hospitals: “negligent credentialing.” This is a legal mechanism to establish the hospital’s liability in cases where an independent physician’s conduct is the primary basis for a medical malpractice claim. In fact, in 2007 Illinois was one of the first states to uphold a claim of negligent credentialing against a hospital that nabbed an $8 million verdict for the plaintiff in Frigo v. Silver Cross Hosp. and Medical Center.2016 ushered in a new era for negligent credentialing claims against hospitals. In January, the Illinois Supreme Court eased the plaintiff’s burden in such cases by allowing applications submitted in the hospital’s confidential credentialing process to be disclosed in discovery. This decision prevents credentialing applications, even though they are considered confidential, from being privileged when the hospital’s knowledge regarding the physician’s competence is an issue in the case. While every fact pattern may not be amenable to institutional claims against the hospital, these are stones that cannot go unturned in representing our clients and giving them the best chance at full and fair compensation.

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$27

million

Product Liability - Family man paralyzed in a boating injury when he fell from the upper deck of a yacht. The offer by the insurance company for the defendant was only $3 million before trial and $25 million after three weeks of jury trial, offered after closing arguments.

Trial Attorneys Mark McNabola, Ruth Degnan

$20

million

Construction Site Negligence - A man was demonstrating construction equipment known as a “man lift," and was elevated in the air. The lift collapsed, and the plaintiff suffered permanent injuries to his ankle and lower back. McNabola represented one of two seriously injured plaintiffs. Prior to trial, the offer was only $3 million.

Lead Trial Attorney Mark McNabola

$14

million

Medical Malpractice - Following induced labor, the unborn child suffered fetal distress, C-section delivery was delayed. The baby’s mother died from an amniotic fluid embolism during delivery and the baby suffered severe developmental delays.

Lead Trial Attorney Mark McNabola

$12

million

Medical Malpractice - A 52 year old man suffered an anoxic brain injury following routine bowel surgery when doctors and nurses at a suburban hospital failed to properly monitor and treat post-operative metabolic changes. This case concluded after evidentiary rulings at the time of jury selection. The offer before trial was only $3 million.

Trial Attorneys Mark McNabola, Ruth Degnan

$10

million

Trucking Negligence - A grandmother who was rendered wheelchair dependent in a motor vehicle incident involving car versus truck. The offer for settlement prior to trial was only $2 million.

Trial Attorneys Mark McNabola, Ruth Degnan

$9.2

million

Medical Malpractice - A young woman suffered amputations as a result of complications following surgery at a suburban hospital in a collar county of Chicago. The doctors and nurses failed to develop and implement an appropriate plan to manage blood thinning medications pre and post-operatively leading to severe clotting and tissue death. The case settled after evidentiary rulings at the time of jury selection. Offer before trial was only $2 million.

Trial Attorneys Mark McNabola, Ruth Degnan

$8.8

million

Trucking Negligence - A young girl was killed when she was struck by a vehicle that had previously collided with a bus that was traveling too fast for conditions. After a ten-day jury trial, a Cook County jury returned a verdict in favor of the family. According to the Jury Verdict Reporter, this is a record high verdict for the wrongful death of a minor in a motor vehicle accident. There was no offer for settlement by any defendant.

Lead Trial Attorney Mark McNabola

$7

million

Trucking Negligence - Cook County jury awarded $7 Million to a construction worker who lost his leg working on a City of Chicago site. As a result of the defendant’s failure to safely route traffic in the area the man was pinned against his truck by a driver. The defendant did not offer any money to settle the case.

Lead Trial Attorney Mark McNabola

$6

million

Motorcycle Negligence - A teenager and her father were injured in a motorcycle accident. The 15 y/o suffered a severe fracture of her right ankle and has required multiple surgeries

Lead Trial Attorney Mark McNabola