"There's A Band-Aid In My Pizza!" (And Other Gross Food Stories)

A colleague shared the other day that a pizza chain recently delivered more than a pizza to a resident. Also included (at no charge, apparently) was a bloody band-aid. As a home pizza maker for over 20 years now, I'm pretty sure that a band-aid is not an approved topping.  

This reminded me of the litany of other "foreign objects in food" cases I've seen and/or handled over the years: wires in pancakes, glass in baked beans, bolts in milkshakes, and most everyone in Stark County probably remembers the infamous "fingertip in the salad" incident.

All these "foreign object food claims" have one common thread: they almost always involve a chain type restaurant.  So what do you do when you're trying to enjoy a meal and you get that sickening feeling that whatever is in your food or your mouth shouldn't have been there in the first place?

DOCUMENT IT

Take a photograph of it. If it is large enough, keep it and preserve it. Take the time to not only speak to the manager, but fill out an incident report. If it's a manufactured food product you bought in a store, call the company and ask to fill out an incident report.

DON'T RELINQUISH THE ITEM

This is where most people who are handling matters on their own (without an attorney) mess up. You can be sure that, eventually, an insurance company for the establishment will be calling you. They or the restaurant or manufacturer will want you to send them the object "so we can test it." Well, guess what often happens when you send the item? Don't be surprised to hear back from them weeks or months later that "we tested the item and there was no problem so we destroyed it.per our company policy."

There goes your ability to have the item tested yourself if you desire to do so. Think about it: is it more likely, or less likely, that  you'll hear the following: "Yes we tested the item and it is all our fault and, by the way, you may have a serious disease as a result based on our testing." Yeah, right....

 As an alternative to relinquishing the object to the establishment or the insurance company, keep it yourself. Do not be bullied by anyone who says "we must retain the item for testing." Tell them to forget it, and immediately call the local health department. They will do an inspection and in many cases will send the item out for analysis. Make sure to tell the health department

 that you want the item returned.

Another alternative is for you or your attorney to find an independent lab that will test the item for contaminants, etc. 

GET YOURSELF CHECKED OUT

A good place to start is your family doctor, so he or she can know what kinds of tests to run. The good news is that most of these cases do not result in the victim contracting some sort of disease. But they can have some lasting psychological effects in some people. Finding a band aid or some other gross item in your food is like being violated. We implicitly trust that restaurants and delivery chains have systems in place to keep unwanted and revolting items out of our food. The scars from that can take time to heal. The psychological damages component of foreign object food claims is a recognized element of damages under Ohio law.

Why should you take these precautionary steps if you find a gross item in your food? Simple. The insurance company will immediately suspect that you placed or planted the item in the food until you prove otherwise. Their usual paranoia and mistrust is not without some justification. After all, we can equally remember someone planting some vermin or critter in a food or drink item in an attempt to scam a food manufacturer or restaurant.    

Sounding The Alarms...Of Malpractice

Hospitals employees are suffering from "alarm fatigue," according to a recent study from the Joint Commision on Accredidation of Health Care Organizations (JCAHO), which sets standards for and accredits hospitals.

The problem? Too much beeping and alarming, apparently. Staff is becoming immune or turning off the very device alarms which are supposed to protect patient safety. How big is the scope of the problem? The JCAHO estimates that at least 80 deaths have been attributable to alarm fatigue over the last three years. And this  problem is probably low because hospitals are not even required to report "alarm related" deaths.

This is astonishing. It is a sad commentary on our medical system when people are dying in hospitals not from serious disease or trauma complications, but a patient safety alarm that's ignored or turned off. To be sure, some of the problem stems from staff confusion due to a lack of standardization amongst device manufacturers. As the article cogently points out, some devices alarm or beep when functioning normally, whereas others alarm if the patient's medical status changes.

However, doesn't this sound like a problem that is correctible in this day and age? We hear time and time again that the U.S. has "the best medical system in the world." In many respects, this is true, but it is such an oversimplification, and this data proves that point. When the equivalent of a busload of people have died due to an unanswered or ignored alarm, and hospitals are not even required to report such inexcuseable deaths, that doesn't sound like a medical system that the rest of the world should envy or aspire to.

Reminds me of what Will Rogers once said: "Even if you're on the right track, you'll get run over if you just sit there."

Injured By A Distracted/Texting Driver? One HUGE Reason NOT To Deal With The Insurance Company

If you were injured in a car collision by a distracted or texting driver, the offending driver's cell phone provider should have a record of the driver's texting history.

Problem No 1: many of these cell phone providers keep the user's texting history for only a limited period of time. In a recent case, this was the cell phone provider's response to our subpoena seeking the driver's test messages on the day of the collision:

Text message details are kept for approximately the most recent 18 month period from the date of processing. No text message CONTENT was found. Text message CONTENT is not retrievable for any length of time. The FCC does not mandate the retention of stored content.

Problem No 2: injured drivers often wait until shortly before the two year Ohio statute of limitations is about to expire before contacting an attorney. Many times they wait based on insurance company promises to "work with" them on a fair settlement. Frequently, "working with you" turns into you getting "worked."

If a personal injury lawsuit is eventually filed, the negligent driver's text messages will often be gone and beyond the capacity to subpoena.


Can't you just ask the insurance company to produce their driver's cell phone records early on in your dealings with the insurance company? Well, good luck with that. You'll get one of 3 responses: "We are not allowed to provide that information," "We don't have access to that information" or "We are accepting fault for the crash so there's no need to retreive that information."
Bottom line: we'll discover the existence of Bigfoot AND the Loch Ness Monster before you will EVER get that information from the insurance company. And you can't get it yourself unless you subpoena it. And you cannot subpoena it unless there is an existing lawsuit filed.

Texting and driving is more than simple negligence or inattention. It is reckless in my opinion and is akin to driving while intoxicated or impaired. If you can prove that a driver was texting at the time of the collision, that driver can be held liable for punitive damages, which exist in Ohio to punish the driver. Punitive damages in this situation can be recovered in addition to damages designed to compensate you for your lost wages, medical bills, and physical pain and disfigurement.

Lesson: you deal with the insurance company at your peril. And if you wait too long, important evidence of the driver's misconduct can be lost.

Untangling The Medical Malpractice Web: It's Not All About Lawsuits

In a world where it is becoming easier to be cynical and negative, the continual kindness and grace of people continues to amaze me.

Recently I was consulted on, and declined, two potential malpractice claims. In both cases, the families had LEGITIMATE complaints and concerns over the care their loved ones received. In both cases I had a strong suspicion that medical negligence was a distinct possibility, and contributed to some really serious patient harm.

But sometimes it is nevertheless difficult to PROVE from the state of the medical records that malpractice occurred, for a whole host of reasons. This is a difficult concept to explain to families  who simply want to know what  happened in the operating room or the ICU. It's not something you can generally explain in a 10 minute phone call. It often takes time, and these folks deserve the time it takes to walk them through all the medical and legal issues.


A cynic might think that these folks would be angry and spiteful at hearing the news that their case has been declined. However, in most cases, it's just the opposite. Both families were extremely greatful that somebody took the time to go through the records and provide some insight, and actually explain some of the medical issues and what the current medical literature has to say about proper treatment protocols. Their grace and understanding under difficult circumstances runs counter to the stereotype of "sue happy" people just looking to "cash in" on a lawsuit.

More than anything else, families want the truth--and some piece of mind that they at least inquired about whether a preventable medical mistake occurred.

The shame of it all is that it frequently takes a lawyer to explain what the doctors should have explained to the family months before they picked up the phone and called a lawyer.

How Outsourcing Medical Care In Hospitals Is Needlessly Harming Patients

Imagine having a loved one in the hospital who needs to be transferred to a rehab facility. The hospital sends standard discharge paperwork to the rehab facility, which includes necessary life saving medications the patient will need there after being transferred.

Sounds like simple, standard "stuff," right? Think again. Unbeknownst to you, your hospital has outsourced the transcription of the discharge summary to a company in India, where the discharge summary your doctor has dictated is sent electronically, transcribed into written form, and sent back to the hospital.

You might guess what happens from there. In a recent case in Alabama, a 59 year old woman was discharged to the local rehab facility with a discharge summary chock full of critical errors. The most alarming? An order for 80 units of insulin instead of 8 units--10 times the required dose. The rehab facility gave the 80 units of insulin, which caused the patient sustain a massive brain injury, which eventually took her life.

During the case it was discovered that the hospital outsourced transcription of its medical records to a company in New Dehli, India in order to save 2 cents per page on transcription costs. Even worse, the hospital did not use its own internal reviewers to review for possible errors. Apparently, that was outsourced to India as well.

An Alabama jury who heard this evidence was incensed enough to return a $140 million verdict against the hospital.

An integral part of a hospital's responsibility to its patients is to make sure the discharge instructions are correct, whether the patient is going home or transferred to another facility. Patient safety demands it. It's bad enough when there is a colossal mistake like a discharge order that orders a lethal dose of medication.

It's worse when such an important function is outsourced to save pennies per page on transcription costs. Bottom line: when medical providers are outsourcing critical aspects of patient care and safety to increase profits, that is truly a prescription for disaster.

I hope every hospital administrator at the next "administrator's conference" in some warm, sunny location hears about this case, and what a wake up call it sends to hospitals. Let's just hope the wake up call is not outsourced too. 

Why I Like Being A Lawyer

Recently a former client whom I represented in an auto accident years ago came to me with a problem. She politely asked me if I could help her since this was not a "personal injury" case.

She worked years ago for a local institution and was eligible for a small pension. When she turned the correct age she inquired as to when she could expect to receive her benefits. She was told they had no record of her being eligible, and promised to get back to her.

Weeks went by, and she heard nothing so she inquired again. She was told they were "still looking into it" or words to that effect. Weeks turned into months, so she called me. I told her I would look into it and wrote a nice letter to the institution on her behalf. No response.

So I wrote letter no 2. Finally heard from a representative. After a few weeks, the person acknowledged that she was entitled to her benefits, with interest, and offered an amount, which was accepted.

Almost three months passed and still no payment. Yet another letter was sent and ignored, so I finally initiated the nuclear option: I drafted and sent a copy of a lawsuit and explained that I would be filing it if there was no payment in full within 7 days.

Lo and behold, the check arrived--but not without the threat of a lawsuit, and after the passage of over one year.
I have no earthly idea why it took those efforts to get a large institution do what it was obligated to do. After 25 years in this business, I've stopped trying to figure out why corporations or people do what they do. But it ticks me off that people simply trying to enforce their rights are often labelled as "sue happy" and "greedy" and nonsense like that. This nice person only came to me after getting nowhere by simply inquiring on her own and trusting that people would do the right thing. And it gives me a sense of pride to know that we can accomplish a result with some persistence and simple steps to get people to do the right thing.

But it reminded me yet again of the frequent imbalance of power in situations like this. There is a real movement afoot to chip away at our legal rights brick by brick. Most of this stuff flies under radar, and the public is largely ignorant of all of it...until it affects them. But at the end of the day, when all "nice" or informal efforts at resolving disputes fail, the lawsuit is the great equalizer. It allows the little guy or gal with little to no resources to take on someone or some entity much larger.

To be sure, there are some really stupid and frivolous lawsuits out there, and they deserve all the criticism they get. But just remember: almost every lawsuit "reform" measure proposed by astroturf  "concerned citizens groups" is seeking limits or legal shelter on even legitimate wrongs and disputes.

You know--the old saying about the baby and the bathwater. Something to think about the next time you hear some politician or group clammering for (more) legal "reforms."    

Two Huge Signs Of A Spleen Injury After An Auto Accident

Although injuries to the spleen are not an every day occurance after a car crash, they are not rare either. Trauma to the spleen can occur, and it does not always manifest itself immediately. In fact, sometimes the symptoms of an injury to the spleen do not become apparent until days after an accident.

From a recent case I handled: a woman is rear ended in a high speed crash. She's taken to the ER, has normal vital signs, and is in no apparent distress. She's treated and released for a neck and back sprain and goes home to recuperate from her various sprains.

The next day, she's running errands with her daughter. She starts to feel “very fidgety and uncomfortable.” She then begins to develop a radiating pain from her abdomen up through her left shoulder. She becomes nauseous and sweaty, and is taken back to the ER.

The ER doctor examines her and notes that she has a positive Kerr's Sign: abdominal and distinct left shoulder pain, two of the hallmark signs of a ruptured spleen. Why is it called a "Kerr's Sign?" Because, most likely, some dude named Dr. Kerr discovered this in 1911 or 1935 or whatever and named the test after himself. But I digress...

The ER doc immediately orders a CT Scan, which confirms a Grade III tear of the spleen. According to medical literature, spleen lacerations are graded on a scale of 1-5, and a Grade III laceration, for example, involves more than 50% of the surface area of the spleen, and a laceration of greater than 3 cm in depth.

 What does it mean to have a Grade III laceration? You're going to be hospitalized for a few days to make sure the laceration starts to heal, and if it does not, you're looking at a splenectomy (removal of the spleen). Removal or not, you're in for a lengthy convelescence and not much strenuous activity (like exercise) for months in order to avoid re-injuring it.

The takeaway? If you get a sudden onset of abdominal and shoulder pain a day or two after a motor vehicle collision, get yourself to the ER, and don't assume it's par for the course. It may save you from a serious problem down the road--a slowly bleeding spleen. I'm no doctor, but I do know that bleeding vital organs are generally not a good thing....and I didn't even stay at a Holiday Inn Express last night (as the commercial goes)...

Avoiding "The Race" After Your Ohio Auto Accident

Yesterday a potential client called me about an auto accident she had the day before. She found my name through a Google search. She called me only because (1) she had already been called by the adjuster for the at fault driver, who offered her $500 for her "pain and suffering (in exchange for a full release of any future liability); and (2) she was being bombarded by calls from injury "help centers," "hot lines," and chiropractors telling her she was eligible for a "free medical examination."

And in 1-2 more days, her mailbox will be stuffed with about 16 letters, brochures, and DVD's from attorneys offering their "years of experience" to get her top dollar on her claim.

Not having been through this before, she didn't know what to do, and quite frankly was tired of the whole thing. This scanario is becoming more commonplace, unfortunately.

It dawned on me that auto accident injury victims are nothing more than participants in an involuntary race of sorts. The insurance companies are racing to "cash her out" before she even knows the nature and extent of her injuries, in order to cut their losses. Included in this high speed chase are the chiropractors and attorneys  racing to sign her up for their own obvious financial reasons.

My advice: avoid the whole lot of them. Take a step back. Let some time pass to see if you need any follow up with your medical provider of YOUR choice, or if time and a few Motrin will allow you to determine if you're truly OK and in no further need of any medical treatment. I sent her a book I wrote on what to expect after an Ohio car accident, and how injury victims can get drawn into this black hole. And I told her to call me if she had any further questions.

In other words: avoid the race, or worse yet, the onslaught. She was smart enough to have the sense to take a step back and weigh her options. Others who come to see me, AFTER this "machine" runs its course, many times aren't so lucky... 

Persistence Is The Cure For An Evasive Witness

Taking the deposition of a defendant doctor in a malpractice case can be tricky, no matter how much experience you have in medical malpractice litigation. After all, as a general rule, the doctor has the upper hand. He/she is trained in medicine and most of us are not. Even if the attorney has medical training, the doctor will always know WAY more about what happened than we ever will.

The reason for this is simple: the medical records never tell the whole story. Many times they are incomplete, fudged, sanitized, and in some cases, altered. Like a glacier that's 5% exposed to the naked eye and 95% underwater, virtually every medical malpractice case involves plunging below the surface of the medical records into the deeper abyss of what really happened. .

Because the advantages lie with the defendant doctor, there is ample opportunity to evade, "clarify," or "explain" what truly happened, no matter what the "official" records say.

Case in point: in a recent Ohio medical malpractice lawsuit, we claimed that a physician was negligent or "fell below the standard of care" for not immediately applying an Ambu Bag (a bag that manually forces air into a patient's lung when squeezed) to a patient in severe respiratory depression due to anesthesia drugs that had paralyzed the patient's breathing after an outpatient procedure. The recovery nurse did an excellent job of documenting the patient's extremely how blood pressure, heart rate, and lack of consciousness upon arrival to the recovery room or PACU.

We claimed that the rules of good medical care required the physician to take immediate action and force air into the patient's lungs with the Ambu Bag to take over breathing for the patient. The nurse had documented that four crucial minutes had gone by before the physician finally began to use the Ambu Bag to attempt to breathe for the patient.

It was our experts' opinion that allowing four minutes of not taking over breathing for an unconscious, anesthesisa drug-paralyzed patient was a clear breach of the rules of good medical care, and sadly led to her anoxic brain damage due to a lack of oxygen.

There was a lot more to this story, but the Ambu bag delay was one of the main issues.

When it came time for the doctor's deposition, I anticipated the defense that the Ambu bag was used "immediately" after the patient's ominous vital signs were discovered, despite what the nurse had documented to the contrary. I expected that the physician would claim that the nurse's documentation of a four minute delay was incorrect or wrong. Sure enough, that's what the doctor said at the deposition.

But one of my lines of questioning was to get the doctor to admit that if the nurse's documentation of a four minute delay WAS accurate, the doctor was negligent. Below is a portion of the transcript addressing this issue:

Q. If an Ambu bag were immediately available, okay, and if there was a 4-minute delay between ____'s ominous signs that we went over listed at 9:24 and the time an Ambu bag with positive pressure ventilation was applied, does that fall below the standard of care?

A. I would take issue with the times, and I don't know -- I ventilated the patient when I felt ____ needed it.

Q. Okay. I understand that, but my question was very specific. I'm going to repeat it. If an Ambu bag was immediately available, and if there was a 4-minute delay between ____'s ominous signs that we went over listed at 9:24 and when an Ambu bag with positive pressure ventilation was applied, does that violate the standard of care?

MR. _______: Objection; asked and answered. Go ahead, you may answer it again.

MR. WILSON: It was not answered.

MR._______: It was. Go ahead, you may answer again.

A. I ventilated the patient when my, when I felt that there was a real problem. We immediately -- a lot of things were happening. Resuscitation was started immediately on receiving these vital signs, four vital signs.

Q. With all due respect, Dr.__________, my question wasn't answered. I would like an answer to the question. If there was a 4-minute delay between ______'s signs that we went over and when an Ambu bag with positive pressure ventilation was applied, does that fall below the standard of care?

A. I guess I would have to say yes.

To be honest, extracting this admission involved no secret or "Jedi mind trick" ("These aren't the drones you're looking for"---one of my favorite Star Wars lines but I digress)--at least among Ohio medical malpractice lawyers who've been to this rodeo a time or two. To be sure, no one admission at a deposition will win the day.

But it is proof that listening closely to the question--AND persistence in a firm, respectful way-- can pay off. More importantly, it can serve to simplify or narrow the myriad of issues that a jury will ultimately decide.

        

   

Ohio Wrongful Death Claims And Bankruptcy

What happens if you pursue or have filed an Ohio wrongful death lawsuit on behalf of a deceased loved one, but are considering or have to file for personal bankruptcy before the lawsuit is settled or before you win the wrongful death case?

Answer: it gets complicated. Example: wife dies due to an auto accident or medical malpractice. Husband files a wrongful death lawsuit on behalf of his deceased wife and any dependent children. If husband then files for personal bankruptcy, the husband's share of wrongful death claim and any potential recovery becomes an asset of the bankruptcy estate. Translation: if the husband makes a recovery of money through a wrongful death settlement or verdict, those proceeds can potentially be reached by his bankruptcy creditors. In fact, the bankruptcy trustee ( the person appointed to represent the interests of your creditors during your bankruptcy case) has the right to hire separate counsel to pursue the wrongful death claim on behalf of the bankruptcy estate.

Can the bankruptcy trustee take 100% of the husband's wrongful death proceeds in our example? This is where state law applies. Under Ohio law, there is an exemption  for:

"a payment on account of the wrongful death of an individual of whom the person was a dependent on the date of the individual's death, to the extent reasonably necessary for the support of the person and any of the person's dependents."

This means the husband and any other dependents (children) would be albe to retain some of the wrongful death proceeds for support of himself and any of the children. The amount of this figure would probably be within the bankruptcy judge's discretion.

As to any dependent children, they would have their own separate claim in the wrongful death lawsuit for the loss of love, companionship, and affection/guidance bacause of their mother's death, and in my opinion, any wrongful death proceeds they recover would not be subject to the reach of their father's creditors in bankruptcy court.

There's more to it than this but that's the down and dirty summary. Obviously, to navigate both the wrongful death claim and any potential bankruptcy require attorneys with knowledge of how all these laws intersect.

Medical Care In Hospitals: "Copy And Paste?"

Electronic medical records (EMR's) have been hailed as the greatest thing since the X Ray in medical circles. For those unfamiliar, they are replacing the age old handwritten records with entries entered  and stored on a computer. The theory is that gone are the days of chicken scratch handwriting, and an added benefit is electronic access to a patient's medical chart from remote areas outside the hospital, for example.

The reality is not matching the hype. First, simply reading and dechpihering electronic medical records in Ohio personal injury and malpractice cases we investigate has often become the equivalent of cracking a WW II German Enigma Machine message (used for the encryption and decryption of secret messages for those interested in useless trivia).

It can be a maddening exercise, due to the fact that there is a ton of repetitive "programming" information repeated on many pages of a patient's chart. Looking for anything of substance is like finding a needle in a haystack. It may make sense to the Information Technology guys and gals who developed this software, but for anyone else it's maddening.

And now this: EMR's have begun to foster a widespread practice of medical personnel "copying and pasting" a patient's previous diagnosis or vital signs and may be affecting patient care. According to a recent medical study in Ohio, 82% of residents' notes and 74% of attending physicians' notes included 20% or more copied and pasted material from the patients' records.” The study of 135 patients' records utilized plagerism detection software to pick up on this alarming practice. In one case:

“...a patient left the ICU and was readmitted a couple of days later. The patient's medical record included so much copied and pasted information, the new team of doctors wasn't able to decipher the original diagnosis. In the end, the new team called the physicians who originally diagnosed the patient.”

So--too busy to re-check the patient's vital signs and whether he or she is getting better or worse two or three hours after a physician's order? Just copy and paste the previous vital signs into the patient's record and move on. Don't think this happens? Think again. This study is spot on with what we are seeing with our own eyes as we review electronic records in our own practice.

Simply put, this new technology is subject to being abused in a hospital or other setting where patients are being moved through a system. We need no study to know that the practice of medicine has become a volume business. New technology can be a good thing and EMR's are no different, as they bring many benefits to the table regarding patient care. But like any new technology, it is subject to abuse.

It is admirable that certain medical professionals are beginning to address a problem we already are beginning to see: "copy and paste" medical care and treatment.





  

Questions You'll Be Asked During An Insurance Company Recorded Statement

If you've been in an Ohio car or motorcycle accident, you'll soon meet up with an adjuster who wants to take a "recorded statement" from you. We typically advise our clients (or potential clients who call) not to give a recorded statement to the at fault party's insurance company (as we have discussed here), but for those of you who are contemplating giving one to the adjuster, the following guide may help you prepare for what you may be asked:

EXAMPLE OF A TYPICAL INSURANCE COMPANY RECORDED STATEMENT


NOTE: This was a recorded statement taken by our client’s own insurance company seeking information. The adjuster did not ask the client for a social security number because the client’s insurance company already had it on file.

These interviews are basically “scripted” and the questions are typical ones you’d expect to see in any initial “interview.” How do we know they’re scripted? In this case, for unknown reasons, the insurance company made the client go through two recorded interviews (both were given before the client hired us). Both interviews were essentially identical. The client’s answers have been deleted for obvious reasons.

1. Could you please state your full name?

2. Do you understand that this interview is being recorded?

3. Is it being recorded with your permission?

4. If I need to share the information with another adjuster, may I do so?

5. What is your address and telephone number?

6. What is your date of birth?

7. What is the year, make and model of the vehicle you were driving?

8. Are you the registered owner of that vehicle?

9. Were you using the vehicle for any type of business or government use?

10. Were there any minors or passengers in the vehicle with you?

11. What was the date of your accident?

12. Around what time?

13. How many vehicles were involved?

14. What street did this happen on?

15. Was the weather a factor in the accident?

16. Was the traffic light, moderate or heavy?

17. What happened?

18. What type of damage was done to your vehicle?

19. Do you know what type of damage was done to the other vehicles?

20. Was there any type of evasive action that was able to be taken to avoid the accident?

21. Were you under the influence of drugs or alcohol?

22. Were you using a cell phone or any other electronic devices?

23. Was anything obstructing your vision?

24. Do you know how fast the other party was going?

25. Do you know what the speed limit is on that road?

26. Was your vehicle towed?

27. Were you wearing your seatbelt?

28. Did your airbag deploy?

29. Were the police called to the scene?

30. Was there a report taken?

31. Do you have the report number?

32. Was a ticket or citation issued?

33. Were the vehicles moved before the police arrived?

34. Did the police take statements from the drivers?

35. Were there any witnesses that saw the accident?

36. Do you have the witnesses’ contact information?

37. Was there property damage to street signs, poles or anything else?

38. Were you injured in the accident?

39. What type of injuries did you sustain?

40. At the moment of the impact, were you thrown forward, backward or sideways?

41. Did any part of your body make contact with the vehicle?

42. Was there any ringing in your ears or popping in your jaw?

43. Did you have any deep cuts or lacerations?

44. Was there any emergency treatment performed at the scene?

45. Were you taken to the hospital?

46. What hospital did you go to?

47. Were you transported by ambulance?

48. What treatment have you received since the accident?

49. Do you know the name of your doctor?

50. What type of treatment plan are you currently on?

51. Are you taking any medication?

52. If you can rate the pain that you feel now, 10 being the worst, 1 being the least, how would you rate your pain?

53. Did you have any prior injuries that could have resurfaced because of the accident?

54. Do you know the total amount of your medical bills to date?

55. How much time did you miss from work?

56. Where do you work?

57. What is your position there?

58. Are there any physical requirements for your position?

59. What is the name of your immediate supervisor?

60. Do you know a phone number for your supervisor?

61. Are you paid hourly or salary?

62. How many hours do you work per week?

63. What is your salary?

64. Do you make any type commissions or bonuses?

65. How long have you worked there?

66. What type of medical benefits do you receive?

67. Do you know if any of the other parties in the other vehicle were injured?

68. Is there anything in reference to the accident that you would like to add that we have not discussed that we should know about?

69. Have you understood all these questions?

70. Is this recording true and correct to the best of your knowledge?

71. Has this recording been made with your knowledge and consent?

72. Would you state your name again please?

  

Insurance Company Gets Hacked--Another Good Reason Not To Give Your Social Security Number To The Adjuster/Insurance Company

"We need your client's Social Security number to process the claim." This is a standard request from an adjuster when we notify the responsible party's auto insurance company that we will be handling the claim on behalf of our client.

Our standard response is to refuse for two reasons. First, divulging our auto accident client's SS No allows the at fault party's insurance company access to a number of databases that allow them to snoop around to see if the client had an injury or homeowners' claim 13 years ago, or had a workers compensation claim, for example. It even allows access to our client's credit history and credit scores. What's more, they don't share the results of their fishing expedition, which is a good reason to refuse to give them such personal information.

Second, I have always taken the position that divulging the client's SS No created privacy and information/identity theft concerns due to computer hacking and other cyber crimes. The usual responses to this are either an incredulous "gimme a break,"  "you're just being difficult," or "our computer systems are safe."

And now this news: Nationwide just got hacked by some computer "propeller heads" and exposed over 1 million people to access to personal information and Social Security numbers. Who knows the implications of this major security breach, but it proves our point that identity theft is a real concern, and not one that should be dismissed.

Insurance companies may EVENTUALLY need an Ohio auto accident victim's SS No in order to comply with new Medicare regulations requiring insurers or us to verify that the client is or was not on Medicare or eligible for Medicare at the time of the crash (this is because Medicare has a right or reimbursement for any auto accident bills Medicare pays). But this problem is easily solved by producing our clients' SS No's AFTER the case or claim settles.

  

Patient Safety Tip: Avoid Afternoon Surgeries (And Friday Surgeries Too!)

A recent CNN article from a surgeon makes a good case for avoiding afternoon surgeries if at all possible.
The reason? Your surgical team might be sleepy. He argues:

Our bodies follow natural circadian rhythms, which regulate our sleep/wake cycle, brain wave activity and certain bodily functions. These circadian rhythms dip between 3 and 5 p.m. each day, causing many of us to feel sleepy.

I hear ya, Doc! Everyone hits a lull during the workday, especially after lunch. Combine that with a busy surgical schedule that often starts around 7:00 a.m., and it's easy to see why drowsiness and inattention might set in in the Operating Room.

From our experience in handling Ohio malpractice claims, I would add Friday surgeries to the list to avoid. Although not scientific, I have seen an anecdotal correlation between Friday surgeries and medical negligence. I recall distinctly two cases where physicians were in a hurry to "finish up" at the end of the day, and performed procedures that should have waited until the patients were more stable. Another involved a surgeon who made a mistake during the operation, and assumed the patient's immediate post-operative symptoms were "normal" when a CT scan would have revealed the surgical error. The patient was sent home, only to return the following Monday with life-threatening symptoms.

My best guess is that midweek morning is probably the best time to schedule any procedure. There is something to be said for "hump day" after all...

Does Signing A Consent Form Prohibit You From Bringing An Ohio Medical Malpractice Claim?

"Well, the doctor may have screwed up but the patient did sign the consent form, so....."

This is a common thought amongst jurors or focus groups in evaluating malpractice claims. After all, everyone has to sign the standard medical "consent form" for any procadure whether it's a colonoscopy or bypass surgery. But as ESPN college football analyist Lee Corso says, "not so fast, my friends...."

Medical negligence claims in Ohio can be divided into two basic groups. One is "informed consent." Basically, this means that every physician has the obligation to inform you as a patient of all the material risks and benefits of any procedure, so you can make an intelligent decision as to whether to go through with the procedure. The "risks and benefits" of the procedure are usually covered through a combination of discussions with the physician, and the medical consent form.

I don't care how minor the procedure, the consent form usually has some standard or "boilerplate" acknowledgment that the procedure can potentially cause bleeding, infection, paralysis, or even death. You could probably find that language in a consent form for removal of a hangnail. This is standard "CYA" language that protects a physician from a claim that he/she did not  provide proper "informed consent" before the procedure.

But Ohio law makes it crystal clear that giving proper informed consent does not excuse the physician from performing the procedure in a negligent manner. Some examples illustrate this point. For example, if you sign a consent form for amputation of your right leg, the physician is still negligent if your left leg is inadvertantly cut off. Similarly, if a foreign object is left inside your body after surgery and causes major injury or death, the physician or hospital is negligent, and can't hide behind the consent form that warns the patient of the risk of injury or death.

Likewise, if an anesthesiology consent form advises of the risk of brain damage or death, the anesthetist can still be held liable if he/she allows a patient to lapse into anoxic brain damage due to a failure to properly monitor the patient's breathing or respiratory status during or after the procedure.

Bottom line: a consent form does not give a physician or hospital a license to perform the procedure in a negligent manner. In other words, you as a patient can't "sign off" on the physician's negligence.      

"How Much Should I Ask For In A Settlement?"

Occasionally we get this question from someone "going it alone" without an attorney. First, there are quite a few reasons NOT to represent yourself in your personal injury claim (and 1 reason where it's OK) as I wrote about in our book: "Your Ohio Accident Claim: Sorting Through The Insurance Maze (available for free through our website www.n-wlaw.com).

But if you are inclined to roll the dice with the friendly adjuster and the insurance company, the true answer to this question is: it's really hard to know without knowing a lot of detail about what happened. Was the collision a 5 mph love tap in the mall parking lot, or did someone run a stop sign at 45 mph and obliterate you? Were you hit by a slobbering drunk driver who fled the scene and later blew a .018--double the legal limit--or a nice elderly woman coming home from the church picnic?

These things make a difference.

More importantly, as we like to say, the "devil is in the details." One of the first things I do to evaluate an auto or motorcycle accident claim is to order and then read your medical records. They are liable to say ANYTHING, and they can make a difference in the evaluation of your claim. Take, for example, this entry in a client's physical therapy records from a few years ago:

"Patient reports increased pain after playing 17 games of softball over the weekend."    

Now this client was in a really bad crash and she needed quite a bit of doctor ordered physical therapy. But her auto accident injury claim ended with that PT entry/record. I told her: "If you're well enough to play 17 games of softball, you have recovered from your injuries in the eyes of the insurance company, and any bills you incur after that will not be related to your claim."

You can be sure the insurance company will be reading those records with the blank authorization you gave them to enable them to order the records. And most folks who call me while "going it alone" have not even bothered to read their own records and have no idea what they say (yet another big mistake they make while representing themselves).

This is just one example of why it is very difficult--and frankly quite stupid--for any personal injury attorney to give an opinion of claim value over the phone. I tell my clients the same thing at the initial client consultation: "I will eventually be able to give you a value or a range of values on what your injury claim is worth, and I'll meet with you in person and go over it. But only after I have reviewed  everything--the police report, all of your records, bills, EOB's, lost wages, photographs, and other materials. If you're looking for an instant evaluation on the first visit, you've got the wrong person and need to go elsewhere."

I say this even in situations where I have a good idea as to where the claim may go in terms of settlement value. Sometimes little things crop up that you discover that sway the value of a claim in either direction--both good and bad.

Knowing where to look separates us from the guy or gal who has never negotiated a single auto collision claim against an insurance company, much less their own.

Handling, evaluating, and negotiating auto, motorcycle, or truck accident claims may not be the equivalent of preparing a seven course meal for a table of food critics. But it ain't "instant oatmeal" either. Some attention to detail, and some good old fashioned time, are necessary ingredients as well.

Anesthesia Errors During Outpatient Procedures--Some Questions To Ask Your Team

Many patients have the perception that anesthesia in simple outpatient procedures is "no big deal." After all, day in and day out, colonoscopies, upper airway endoscopies, and other diagnostic tests under anesthesia go without a hitch. For the most part, they're right.

But anesthesia for any procedure is like airflight: it requires a successful takeoff (introducing the drugs that knock you out, known as "sedation") and a landing (reversing those drugs and returning you to consciousness).  As we all know from airflight, occasionally there is a crash. Unlike an FAA investigation of a plane crash, which is public and transparent, anesthesia error--medical mistakes involving serious injury or death are not investigated for public consumption and education. In fact, many times patients' families are left to guess or speculate as to what really happened behind the curtain.

But from having investigated and handled a few of these cases, here's four basic questions you or any loved one should ask if you're having an outpatient scope or procedure of any kind involving anesthesia:

1. Who is doing the sedation—the Doctor performing the procedure, an anesthesiologist, or a Certified Registered Nurse Anesthetist (CRNA) under the direction of the Doctor performing the procedure?

Take colonoscopies, for example. If the Doctor doing the colonoscopy is also perfoming the sedation (and many do) they tend to give you less sedation than an anesthesiologist might.  They will typically induce you into a state of either "moderate" or "deep" sedation. Moderate sedation means you are arousable to verbal stimuli (“hey Sarah, wake up”).  It's a tradeoff of sorts: You're less likely to get into trouble from a respiratory depression standpoint with "moderate" sedation, but you may feel a bit of pain temporarily.

Compare that to deep sedation, which an anesthesiologist might be more inclined to induce during a procedure. Deep sedation means you are only arousable to painful stimuli, like them pinching you or rubbing your sternum. It's better for pain relief  and amnesia during the procedure but here's a potential problem: sedation is a continuum. Often there's a fine line between deep sedation and "general" anesthesia, which means you're unconscious, even to painful stimuli.

Why does all this matter? One of the major risks of anesthesia is respiratory depression due to the effects of the anesthesia drugs. If respiratory depression occurs, it can cause a lack of oxygen and circulation to the brain, which can cause anoxic brain damage, cardiac arrest, and even death.  You don't need to be "overdosed" on anesthesia drugs to lapse into respiratory depression.

So any patient should want to know: what level of sedation are you shooting for? Whatever that answer is, more importantly the next question is…..

2. How will I be monitored during the procedure?

The gold standard and the BEST AND MOST ACCURATE monitoring is “end tidal C02 monitoring.” This measures how much carbon dioxide (CO2) you expel breath by breath. How much or how little CO2 you’re expelling is the most accurate measurement of how well you’re VENTILATING.

Pulse oximetry (that little thing they put on your finger) only tells you if you’re getting enough oxygen (O2). You can be getting lots of O2 but if you’re not taking it in because the anesthesia drugs are preventing you from doing so by depressing your respiration (you’re not ventilating well), the pulse ox monitor won't necessarily show it until the respiratory depression reaches a crisis level. The CO2 monitor will alert the Doctor/anesthesiologist/CRNA of an IMMEDIATE possible respiratory depression problem.

If you have general anesthesia during an operation, for example, it is standard for your monitoring device to include a CO2 monitor (in addition to the basic vital signs monitoring like BP, Heart rate, pulse oximeter). However, some outpatient centers did not bother with CO2 monitoring for outpatient procedures until recently. In 2011, the American Society  Of Anesthesiology (ASA) mandated CO2 monitoring even for moderate sedation:

During deep or moderate sedation the adequacy of ventilation shall be evaluated by continual observation of qualitative clinical signs AND monitoring for the presence of exhaled carbon dioxide unless precluded by the nature of the patient, procedure, or equipment.

 Why did the ASA mandate CO2 monitoring? According to a 2009 study of outpatient procedure anesthesia error claims or lawsuits spanning 19 years, inadequate oxygenation/ventilation was the most common respiratory-related adverse event in outpatient procedure claims, occurring 7 times more frequently than in hospital operating room claims. And the injuries that occurred in outpatient facilities were more often judged as being preventable by better monitoring.

 So ask the facility or the doctor performing the procedure in the office if they'll be using a CO2 monitor. If they aren't, they’re possibly being cheap and cutting corners on safety and don’t want to spend the money for more advanced monitoring. If that's the case I’d pass and go somewhere else.



3. When I’m moved from the room to recovery, are the monitors kept on or removed?

Most places will leave the monitors on as they transport you from the procedure room to the recovery room. If they don't, that doesn't necessarily mean it's unsafe because it's usually a short trip from the procedure room to the recovery room. But it can be an issue if there was a problem during the procedure (say your heart rate dropped and they had to give you drugs to bring it back up again) and you now need to be moved so the room can be cleared for the next procedure.



4. Are all of your nurses ACLS certified?

This stands for "Advanced Cardiac Life Support." This is training and certification for nurses and physicians so they'll know what to do and what drugs to give if a patient has a life threatening condition during or after the procedure for any reason. Most outpatient centers require ACLS certification. But if you're having the procedure done in an office setting, this may be an important question to ask.

Anyone giving you anesthesia for an outpatient procedure, no matter where it is--hospital, outpatient center, or doctor's office--should be willing to answer these simple questions.

Obvious Medical Errors--Don't They Just Settle Those Without A Lawsuit?

We've all heard of some egregious, newsworthy medical errors: sponges, clamps, and towels left in the abdominal cavity after surgery, operating on the wrong body part (known in medical speak as "wrong site surgery"), patients being dropped from beds, surgical flash fires in the operating room--I could go on.

I'm often asked: "In cases of blatent negligence, don't they just settle those right away without a lawsuit?" The answer, suprisingly to the public (but not to me) is: "usually not." But "upon further review," as they say in the NFL, the reasons are fairly clear.

Take any of the above examples of preventable medical errors. Any medical procedure is a team affair, involving surgical nurses, circulating nurses, surgical techs, not to mention the surgeon. Many hands touch the patient. Now take the example of the "foreign object left behind" like the 8 inch metal clamp left tucked behind Mr Jones' small intestine when they were removing his bowel obstruction.

When the radiology tech drops her morning coffee upon first seeing the clamp on film weeks or months later, the bad news spreads quickly and up the chain to the "risk management" department of the hospital. Their job is to get to the bottom of what happened. When the surgical "team" is informed about what happened, many times finger pointing rather than "mea culpa" is the order of the day.

What's more, hospitals often hide behind "peer review" legal protections as a means of not being transparent with a family about what happened.  Peer review is an internal process where hospitals investigate medical errors and incidents, usually through a committee, in order to improve patient safety. Ohio, like many other states, protects this process by making the investigation privileged. This may be well and good for future patient safety, but the family of someone who just had the wrong side of his brain operated on usually wants to know what the heck happened. Many times, they are met with some nice person from the hospital who essentially kicks the can down the road, or speaks in vagaries, or occasionally invokes the "peer review" card by saying "I can't get into that per hospital policy, but I can assure you we have made changes to make sure this doesn't happen again" blah blah blah.

Some hospitals are getting smarter about this and are being more transparent about what happened and explain how, for example, a patient with a wristband that said "allergic to morphine" was given ample doses of it. They're learning that invoking "peer review" after a head shaking medical error goes over like the proverbial meadow muffin in the punch bowl.

But I can't tell you how many times I've seen hospitals dodge and weave instead of fessing up and admitting error. And nobody on behalf of the physician or hospital approaches the family or their attorney to resolve the claim without a lawsuit being filed. Their message many times seems to be: "Yeah, we screwed up, but go ahead and sue us and spend thousands on experts, and we'll get our own experts to say what we need them to say, and we'll see you down the road."

Some of us are old enough to remember the Fram oil filter commercial that ran during almost every football and basketball game I watched as a kid.  A laughing mechanic overhauling an engine said at the end: "Fram oil filters--pay me now, or pay me later."

Paying later seems to be their default position, despite the fact that the price is steeper.

   

"I C Ur Injured--" Law Firms Texting Ohio Auto Accident Victims

Anyone not living on an island knows that texting has become the new craze amongst the younger generation. Even we "older folk" are getting in on the act. Now, certain law firms have taken texting to new lows and are now texting Ohio auto accident victims with a number to call, presumably to them or a "help center" that eventually directs them back to...you guessed it...a law firm.

How do they accomplish this? By hiring "runners" to obtain motor vehicle accident reports, which often contain the victims' phone numbers.  In my opinion, this conduct is unethical and in direct violation of Ohio's Rules Of Professional Conduct. Rule 7.3 directly prohibits any lawyer from soliciting professional employment "by in person, telephone, or real time electronic contact."

Here's a good question for Ohio auto accident victims to ask themselves: why would you consider hiring any attorney or firm that is unethically and illegally soliciting you as a client from the get go? Moreover, what is their motivation for bombarding you days after an accident or a tragedy with countless texts (not to mention illegal phone calls, and legal but tasteless mass mailings, brochures, DVD's, and other junk?)

If you want to sign up with anyone who pursues you like a mad dog in a meat market, that's your choice. But you should know that some of these practices are violating our ethical rules. And that should tell you all you need to know.

I would suggest a response text such as: "thx but no thx." But the best one of all, and the one that will guarantee you won't be harassed any further by them, would be: "I red rule 7.3. C U later."

DiVinci Robotic Surgery Update

Recently I wrote about some of the hazards and risks associated with the next new shiny object in the surgical world: the DiVinci Robot. Hospitals have forked out millions for these robotic surgery machines, and when this happens, you can expect marketing to follow--in the form of newspaper ads, billboards, and fancy commercials touting the wonders of the robot--as I wrote about here.

Recently, lawsuits in Alabama and Michigan were filed alleging that the DiVinci's imroperl/defective design has harmed patients during surgery. The lawsuits allege that allege that "faulty insulation, stray electrosurgical current and insufficient user training led directly to patients' injuries or deaths." In one case, a patient sustained injuries to her ureter and bladder during a hysterectomy. In another hysterectomy case, a woman died after the robot's current injured an artery and her intestine.

What does this mean for patients who are presented with robotic surgery as an option? It means you should have some serious questions and concerns about it.

Another Good Reason To Avoid Attorney And Chiropractor Solicitations After An Auto Accident

It's no secret that we have railed against some attorneys and firms who "solicit" injury victims after an auto accident. These tactics range from offensive to shady (the practice of hiding behind third party "injury help centers" that call victims and steer them to chiropractors and attorneys with questionable sales pitches), and some are downright illegal.

We don't do any of this stuff and we're proud of that, even if it means less business for us.

But now the newest mutation in the solicitation shenanigans: A Florida hospital employee has been arrested in allegedly stealing patient information and records from over 760,000 patient records and selling all of it to attorneys and chiropractors.  My guess is that these records involved various accidents or other calamities.

Every time I think that these practices can't sink any lower, something as astonishing as this comes along. The employee was just recently arrested, so it could get very interesting down the road as federal investigators follow the paper trail and blow the lid off of this powderkeg.

It's gotten to the point that accident victims really can't trust any post-accident phone calls or "inquiries" about their collision, nor should they. Just how can accident victims make an informed and intelligent choice amongst a sea of letters, brochures, DVD's,  numerous phone calls, and now, possibly stolen patient information???

It used to be that picking an attorney or firm out of the phone book was the equivalent of Russian Roulette. Post-accident solicitation is now the new form of this dangerous game.

The good news: over 95% of Ohio personal injury attorneys do not engage in these practices. And word of mouth is still a tried and true method of choosing competent attorneys in this dizzying and sometimes suspect maze.

The Myth Of "Free Markets" When Tragedy Strikes

Yesterday 28 year old Connecticut woman tragically died in a parasailing ride gone awfully wrong in Pompano Beach, Florida. She and her husband plummeted into the ocean from a height of 200 feet when their safety harness broke.

This is the second parasailing fatality in Pompano Beach since 2007. According to the city's mayor, there is little to no regulation or oversight of this recreational activity:

Parasailing companies operate in Florida with little-to-no regulation from the state or the federal government. Mayor Fisher said he has been pushing for legislation to impose stronger safety standards.
“And obviously it fell on deaf ears,” Fisher said. “And so here we are today, losing another life because of no inspections and no opportunities to make sure that this equipment is safe. For someone to have come down on vacation to Pompano Beach, it’s inexcusable to me.”

Imagine how upset her husband and parents would rightly be over what happened here. My guess is that the parasailing outfit touted how "safe" its practices were, and nobody put up a sign on the door of the business that said: "there is no real regulation or oversight of the parasailing industry." In fairness, we don't know how safe or unsafe this outfit was and only time will tell whether this tragedy was just a matter of time, or whether there were extenuating circumstances.

But it sounds to me like this was a classic "free market" industry that certain politicians and people love to promote and yearn for. "Let these businesses regulate themselves" and "government stay out" is often their clarion call. Sounds great on paper until something like this happens. And then many of these same folks then say (with a straight face): "What the hell is going on here? You mean that they're allowed to run a risky business like this with no inspections or oversight?" "Where is the government in all this and why have they not stepped in and stopped these dangerous practices?."

Therein lies the conundrum. Many times, lax or no regulation opens the door to cutting corners and taking shortcuts that often lead to tragedies like this. Would increased oversight have guaranteed this would not have happened? Of course not. Many heavily regulated industries, like the trucking industry, still have a fair number of preventable trucking collisions due to shoddy hiring practices, imposed driver fatigue, and other shortcomings.

But one thing is for sure: when there is no watchdog, deterrant, or minimal oversight, it's only a matter of time until people get hurt. Ironically, the cries for "less regulation" come at a time when the business community is lobbying in frenzy like fashion for "legal reforms" that limit wrongdoers legal responsibility, dole out lawsuit immunity like candy, and limit what injured people can recover in legitimate lawsuits involving truly preventable injuries. It's the perfect lobbying trifecta: less regulation, less lawsuits and less liability. So much for the "personal responsibility" and "accountability" that these same groups and politicians love to preach about when it comes to individuals (and so much for the "corporations are people too" drivel...)

And don't tell me that "doing the right thing" and the self incentive for safety is enough to make companies sell a safe product or service. The Pinto, Firestone tires, Vioxx, bladder suspension vaginal slings, The Massey Mine collapse, Wall Street molesters of our economy and retirement plans, and a whole host of other offending products and incidents come to mind.

Allow me to borrow from the "freedom isn't free" bumper sticker I see all the time. Free markets aren't free either. They come with a price. And sometimes the cost is something you can't add with a calculator: human life. 

Physician Age And Malpractice: Is There A Correlation?

According to a recent article from The American Medical Association (AMA), hospitals are starting to scrutinize the relationship between physicians' age and the quality of care they provide. A study cited in the article summarized the potential scope of the problem:

A Feb. 15, 2005, Annals of Internal Medicine systematic review of 62 studies found that 52% of those studies demonstrated a decline in physicians’ quality linked to advancing age and the passage of years since their medical school and residency training.

As I reflect back on all the medical malpractice cases I have litigated, I have seen a direct relationship between age and substandard medical care on only one occasion. In that case, an elderly surgeon (i think he was approximately 70 years old) obliterated my client's common bile duct during routine laparosopic gall bladder surgery. This is a definite no no during gall bladder surgery, as it is the VERY structure a surgeon is NOT supposed to cut, for it has disasterous consequences for a patient's ability to move bile from her liver to her stomach.

To make matters worse, one month before he cut my client's bile duct in half, he did the exact same thing to another patient's bile duct during another gall bladder surgery. The sad part of it was that, at one time, this surgeon enjoyed a good reputation in his local community. My take on it was that it was not advanced age that became his nemesis. Rather, it was pride and ego and arrogance and not knowing when to throw in the towel.

These fralties seem to be more prevalant and contribute more to medical negligence than advanced age, in my experience. To that list I would add complacency as a major contributor to malpractice. On too many occasions, I have seen otherwise competent physicians that carry an "I've seen this before" or "I have done hundreds of these before" attitude to a procedure or a set of symptoms. This leads to overconfidence or even arrogance and a failure to not do more in the face of symptoms that call for action.

I suppose that it's a good thing that hospitals are probably very quietly looking into this issue. But, in my humble opinion, complacency is immune to age. What every professional--doctor, lawyer, accountant, whover--needs to remember is that a know it all or complacent attitude knows no chronological boundries.   

   

Why Is The Adjuster Making Me A Low Ball Offer?

The reason is simple: because she can. After almost 25 years of representing Ohioans in auto, truck, and motorcycle accident injury claims, there is one thing I'm sure of: the relationship between you and the insurance company you're dealing with is an adversarial one. It is not a business model that's designed to be "fair" to you or transparent.

As proof of this, ask any adjuster any of these questions after they contact you: (1) Will you allow me to take a recorded statement of your insured, the person who smashed into me?  After all, they will require a recorded statement of you. (2) Will you divulge your insured's Social Security number? A standard request they will ask of you to snoop into your financial and credit history. (3) Will your insured sign an authorization allowing me to obtain his medical records both before and after the crash? You can bet they'll ask you to sign these authorizations, which give them a blank ticket to fish around in your medical history YEARS before the crash.

(4) What are your insured's liability limits? They'll ask all about your sources of insurance, such as your auto medical payments and health insurance coverage. (5) Will you pay my medical bills as they come due and reimburse me for mileage and gas for all of my doctors and therapy visits? 

As you'll soon learn, this is a one way street. You will jump through all kinds of hoops, signing all their papers, operating on faith that they'll "do the right thing...and frequently receive nothing in return from the insurance company. And be prepared to hear "company policy does not allow us to divulge that information." See how this works? How do I know this? It's one of the main reasons why people call me after getting nowhere with the insurance company.

This doesn't make the adjuster or the insurance company evil. It's just that their goal, their mission, their reason for existing, is to pay as little as possible. But it doesn't mean you have to accept it, unless you like the equivalent of slamming your head against a concrete wall.

 

Does A Prior Felony Conviction Affect My Ohio Car Accident Claim?

What does a prior felony conviction have to do with your Ohio auto accident injury claim? Plenty, if your felony conviction was a "crime of dishonesty."  Under our rules of evidence, convictions for crimes of dishonesty are admissible to "impeach the credibility" of any witness, and that includes you if you take the stand and testify in your Ohio personal injury claim.

What is a "crime of dishonesty?" Theft, perjury, falsification (filing a false police report), and criminal fraud are just a few of these crimes. Bascially, this rule of evidence allows the party you've filed a lawsuit against to argue that you may be dishonest as to how the accident happened or your injuries testimony because of a history of prior acts of dishonesty--known in legal talk as "impeaching your credibility."


Whether you think that's fair or not, that's the law. I guess it's the law's way of saying that there are certain spillover consequences for dishonesty. But it also applies equally to the defendant in any personal injury lawsuit who has a past history of similar crimes.

In any event, it is a standard question any Ohio personal injury victim can be expected to answer from his or her attorney, and the other party's lawyer as well.

HOW “INSURANCE COMPANY MATH" ALLOWS OHIO AUTO INSURERS TO DILUTE OR WIPE OUT YOUR POLICY

I can prove to you with simple math why your “full coverage” Ohio auto insurance policy is one sided and will leave you scratching your head AND possibly owing thousands in medical bills after a crash. More importantly, after you realize how “insurance company math” works, you can fix your policy with one that will protect your family.


SIMPLE MATH VS. INSURANCE COMPANY MATH


SIMPLE MATH EXAMPLE NO. 1: 50 + 50 = 100 (Any second grader knows this)


INSURANCE COMPANY MATH: 50 + 50 = 50

Huh? Let's see how a real world example of this fuzzy math does a real number on your "full coverage" auto policy after a crash.

A driver turns left in front of you, putting you in the hospital and on the surgeon’s table for numerous fractures. The driver had $50,000 in liability coverage. You purchased a “full coverage” auto policy with uninsured and underinsured motorists (UM/UIM) coverage of $50,000.



Assume your claim is worth $100,000. Simple math would tell you that you can collect $50,000 from the negligent driver’s insurance company AND $50,000 from your own insurance company under your UM/UIM coverage, right? (After all, this is why you bought UM/UIM coverage – to make a claim under your own policy/UM/UIM coverage if the driver had no insurance or not enough to cover your injuries).



Wrong. Your “full coverage policy” has fine print language prohibiting you from collecting a penny of your $50,000 UM/UIM coverage unless you had more UM/UIM coverage than the driver who hit you had in liability coverage. Perfectly legal in Ohio.



Result: You collect only $50,000 total – half of what you’re entitled to. And you collect NOTHING from your own insurance company even though you paid a separate premium for $50,000 in UM/UIM coverage.



SIMPLE MATH EXAMPLE NO. 2: 50 + 100 = 150


INSURANCE COMPANY MATH: 50 + 100 = 100



Explanation:  Again, the negligent driver had $50,000 in liability coverage. Let's assume that you bought $100,000 in UM/UIM coverage and that your injury claim is worth $150,000.



Result: You can only collect $100,000 – $50,000 from the negligent driver’s policy and $50,000 from your own policy, even though you paid a separate premium for $100,000 in coverage. Your insurance company gets to subtract the negligent driver’s $50,000 from your $100,000 policy. You’re now shorted by $50,000 on what you deserve on your Ohio personal injury claim. Again, perfectly legal in Ohio.

 

SIMPLE MATH EXAMPLE NO. 3: 100 + 100 = 200


INSURANCE COMPANY MATH: 100 + 100 = 100



Explanation:  Assume the negligent driver also had $100,000 in liability coverage, you bought $100,000 in UM/UIM coverage, and your injury claim is worth $200,000.



Result: You can only collect $100,000 from the negligent driver. You cannot collect one penny from your “full coverage” $100,000 UM/UIM benefits because your fine print Ohio auto insurance policy says that you have to have more in UM/UIM coverage than the negligent driver had in liability coverage.



Again, you only get half of what you’re entitled to, and your own insurance company avoids paying anything, despite the fact that you paid a separate premium for $100,000 worth of UM/UIM coverage!



Only an insurance company can get away with this “rip-off math,” legal in Ohio since 1994. Is there any way around all the subtractions in your policy? Not by switching insurance companies. Every insurance company in Ohio has provisions permitting “rip-off math.”



CONCLUSION



There is only one way to protect yourself and your family and bettering your odds or defeating this fine print math altogether. Buy at least:



(1) $250,000 OR $500,000 worth of UM/UIM coverage, OR (2) a $1 million “umbrella” policy that includes $1 million in UM/UIM coverage.



Your first reaction might be: “I can’t afford $250,000 or $500,000 in UM/UIM!” My guess is that you would be wrong. For less than $150 PER YEAR, you can probably increase your UM/UIM to $250,000 or even $500,000.



That’s less than $13.00 per month. You probably have almost that much in your spare change piggybank.
So let’s see how “insurance company math” works when you buy higher levels of UM/UIM coverage.



SIMPLE MATH 50 + 250 = 300


INSURANCE COMPANY MATH: 50 + 250 = 200



Explanation: Assume you bought $250,000 in UM/UIM and the negligent driver had $50,000. Assume your claim is worth $200,000.



Result: You can collect $50,000 from the negligent driver’s policy and $150,000 from your own policy, for a total of $200,000. By buying higher amounts of UM/UIM coverage, you’ve now been made whole for all of your losses. And if your claim was worth $250,000, you could collect $50,000 from the negligent driver, and $200,000 from your UM/UIM coverage, for a total of $250,000.



So there IS a way to defeat “insurance company math.” By spending $150, you’ve bought $150,000-$200,000 additional protection in our last examples. If you can’t afford the additional $150 per year, that’s understandable. But now you know how the auto insurance game, and your policy, is rigged. And as you can see, THEIR MATH doesn’t add up to protecting you!

"Why Don't You Care About What Happened?"

Our friend and neighbor was involved in an auto accident in Canton recently. This morning I spoke to her husband while walking my awesome "Heinz 57" mixed mutt Shepard. Sarcastically, he asked me why I didn't seem to care what happened to his wife. "We're getting all kinds of letters and DVD's from accident attorneys all over Ohio who are really concerned and want justice for us and we got nothing from you, so I suppose you don't really care about us!"

After we laughed about that, it confirms what I've known to be true for a long time after over twenty years of representing personal injury clients in Ohio: most people are offended by the barrage of solicitation letters they receive after an auto accident. Whether it's a fender bender or a tragedy involving serious injury or death, within days of a crash their mailbox is stuffed like a sausage casing about ready to split. This observation is usually followed by the usual remarks about us being "ambulance chasers" or "parasites" (I could go on with other perjorative phrases but I'll stop there).

Why do firms do this? Because it works well enough to sustain them continuing to do it. And it's cheaper than TV or radio I guess.

So put me in the category of one of those accident attorneys who "don't care" enough to send that stuff. But that's OK. Our phone still rings. And I sleep well at night (except when the dog decides to lap about a half a gallon of water from his special "night" bowl in the bathroom...)

SPECIAL REPORT: AUTO INSURANCE POLICIES TO AVOID IN OHIO

To quote musical icon Neil Young, “You pay for this, but they give you that.” This adage seems to be the recent trend with auto insurance companies who sell policies in Ohio. Lurking in the fine print (that you never see until AFTER you write your premium check) are numerous traps, exclusions and limitations that render your “full coverage” policy worthless after a crash.

Here are a few examples of some recent policies we’ve seen that are infecting the marketplace and leaving injured Ohio auto accident victims on the side of the road.

1. 21st Century Insurance and Its “Opt Out” Underinsured (UIM) Coverage.

Almost all insurance companies sell uninsured motorists’ coverage (known as “UM”) and underinsured motorists’ coverage (“UIM”) together as a package deal. Consider UM and UIM coverage like a set of twins. The “UM” twin will provide coverage for your injuries and losses caused by an “uninsured” motorist. The “UIM” twin will cover your injuries and losses caused by “underinsured” motorists who carry minimal liability insurance. Almost all insurance companies sell UM/UIM coverage together (again, think “twins”). So will 21st Century. But it will also allow you to “opt out” of purchasing underinsured motorists’ coverage in Ohio. A simple example will explain why this is an incredibly stupid option for any insurance company to offer, and why you should avoid it like a hornet’s nest at a picnic.

Let’s say you’ve been hit by an uninsured drunk driver, shattered your ankle, needed surgery with plates and screws, missed five months of work, and racked up $40,000 in medical bills and $10,000 in lost wages.

If you purchased $100,000 in uninsured motorists’ (UM) coverage with your own insurance company, you can make a claim with them for up to $100,000. If your injury claim is worth $100,000, your company has to pay it. That’s why you purchased this coverage.

But what if the drunk driver had state minimum limits of $12,500? This means that the driver was underinsured, meaning he had some insurance but not enough to compensate you for all of your losses. If you purchased 21st Century’s policy and were sold only “uninsured motorists’ coverage,” you’re out of luck. All you can collect is $12,500 from the drunk driver because you “opted out” of UIM coverage. If you had both UM and UIM coverage, you could collect $12,500 from the drunk driver’s insurance company and $87,500 from your own company, for a total of $100,000.

A recent Ohio law change allows insurance companies to separate out UM from UIM coverage. But almost all insurance companies (except 21st Century) still sell it as a package deal, and it makes absolutely no sense to “split the twins” and sell UM but not UIM coverage.

Lesson: Your UIM coverage is just as valuable as your UM coverage. In fact, there are probably more underinsured drivers (with very little liability insurance) than those who are driving uninsured! For not spending $50.00 per year or less on UIM coverage, you are now out $87,500. Do the math – this is a no brainer. Avoid ANY company that tries to sell you UM and not UIM and vice versa!

2. First Acceptance Insurance.

All insurance companies will offer “med pay” coverage which will pay your auto accident medical bills up to the limits of your coverage, whether its $1,000 or $5,000 or whatever amount you purchase. Here’s how it normally works with almost every company but First Acceptance: you simply turn in the bill to your insurance company and they will pay it as long as it’s related to the crash.

Not First Acceptance. Their med pay coverage is a “reimbursement only” policy. Definition: you, as the injured person, have to pay for the bill out of your own pocket first and then First Acceptance will reimburse you!

Here’s the fallacy of this “coverage”: many folks who purchase First Acceptance policies are financially strapped to begin with. Most can’t afford to shell out $1,000 or $5,000 to pay medical bills out of their pocket.

Therefore, despite paying a separate premium for this coverage, you can’t access it unless you first pay your bills out of your own pocket. So what good is this coverage? Not much at all.

And there’s one other item of fine print in First Acceptance’s med pay “coverage”: there’s NO coverage for chiropractic care. Almost all other insurance companies’ medical payments coverage will pay for chiropractic care.

3. Conclusion.

Here’s the common denominator of these policies: purchasers of insurance do not know what questions to ask, and many are sold over the phone. As you can see, how these policies really work in reality can be complicated stuff. Unfortunately, insurance is sold on one guiding principle: price. Just turn on your TV and you’ll hear all about “saving you 15%,” “keeping you legal for less,” and other “discounts.”

The old saying that “you get what you pay for” really does not fit here. The real problem with buying car insurance is that you really don’t know what you’re buying (or better yet what you’ve been sold) until after you’ve been put in the ditch by an irresponsible driver.

Can A Text Messager Be Liable For Sending Texts To Driver?

Nobody would argue that people who text and drive and cause a collision are negligent and should be held accountable for the injuries they cause. In fact, I have argued that to text and drive may well be reckless conduct that could warrant punitive damages against the offending driver.

But should the person who is texting the driver also be held legally liable if the "texter" knows the "textee" is operating the vehicle? A New Jersey lawsuit will examine this issue.  My guess is that this lawsuit will be thrown out and it should be, in my opinion, despite my sympathy for the motorcyclist and passenger who both lost a leg as a result of the crash.

Every driver under Ohio law and the law of every other state is obligated to use "reasonable care" under the circumstances. If you don't use reasonable care while driving, you are negligent. But you are legally liable for harm only if that negligence directly causes injury. Certainly, it is foreseeable that texting while driving will increase the liklihood of a crash because of the distracting nature of texting.

I'm sure the victims' attorney will argue that it was equally foreseeable to the texter that to continue to send messages to a driver also increases the same liklihood of a crash. But here's where the parallel ends.  What distinguishes the texter from the driver in this case is the element of control, or better yet the lack of control over the vehicle or the driver. Nothing prohibits the driver from turning off the damn phone, ignoring the text, or pulling over to respond. By consciously choosing to ignore safety and continuing to respond to messages while driving, it is the driver's actions that have directly caused the injuries, rather than the texter's.

At least that is how I see it. Sometimes you gotta "call em as you see em," even if it means the insurance companies will prevail on this one.  

The Vexing Problem Of Retained Instruments After Surgery

A medical technology company is developing radio frequency identification technology to assist surgical teams in detecting surgical sponges. At first blush this is not breaking news, but it illustrates a much bigger reality about our medical system.

For years, surgical items like sponges, towels, clamps, foreceps, gauze, and countless other items have been left in patients. Although estimates of this occuring varies, the larger point is obvious: despite all the best hospital protocols, rules, and policies requiring accurate counting of surgical instruments, "stuff" left inside patients' bodies continues to happen, as evidenced by continuing efforts to develop technology to overcome human error. But as safety technology is evolving, the obvious question is: WHY does this continue to happen?

After all, aren't hospitals accredited by organizations who scrutinze their patient safety? Of course. And don't they grant privileges to only the best surgeons who are vetted by the hospital credentialing committees? Presumeably. So how do retained surgical objects continue to happen in "Groundhog Day" fashion and fuel the ongoing need for new technological breakthroughs?

Simple. The practice of medicine is a volume business. Time is money, and patients are frequently a cog in a wheel of a continuing production schedule where medical decisions are often influenced by issues extraneous to what is best for the patient---like having the time to count objects. This is no great revelation to patients. As an analogy, just ask anyone who experienced a loved one discharged too early because of "reimbursement issues," despite what they were told by the medical team.  When something as simple as counting what goes in and what leaves the body is subject to repeated error, it is symptomatic of a larger problem.

We hear over and over that we have the best medical delivery system in the world and this is largely true. But leaving anything behind is 100% preventable and should never happen--no exceptions. In a time where politicians and the medical profession decries medical malpractice lawsuits, it is time to recognize that cases involving retained surgical objects prove an unassailable truth: a major cause of malpractice lawsuits is malpractice. And the easiest way to prevent these lawsuits is to decrease malpractice.

Negotiating With The Adjuster On Your Personal Injury Claim--Don't Do This

     It's one of many traps you can fall into when dealing with an insurance company on your own after an auto acccident. But this one is particularly easy to set and spring on you.

EXAMPLE

Potential client calls. Her statute of limitations is about to expire in 4 days. She's been dealing with the at fault driver's insurance company for almost two years now. After considerable delay, she finally speaks with the adjuster. The adjuster asks the magic question, the one learned at adjuster training 101: "What is it going to take to settle your case?"

A LOSE-LOSE QUESTION FOR YOU

In fact, it is more than magic--it is the PERFECT question to ask an unsuspecting auto accident victim because it is a win-win for the adjuster for two reasons. First, the adjuster is getting a commitment from you without ever revealing the insurance company's hand. Second, no matter what your response is, 99.99% of the time their response will be: "We can't pay that kind of money, so what are you REALLY looking at to resolve your auto claim?" At which point, most folks will reveal exactly what that figure is...

Bottom line: in the course of a few minutes, you've bid against yourself and revealed your bottom line and the adjuster hasn't given you anything in return. It's the equivalent of taking a hammer and whacking yourself with it a couple times. After going round and round with the adjuster, the potential client finally blurted out a money demand that was artificially high but at least gave her enough room to negotiate. Thankfully, she did not reveal her bottom line. But she got nowhere near what she should have been offered, and now I'll be handling her claim through a lawsuit.

But others fare less well. Sometimes the injured person makes so many negotiating mistakes that I can't unspring the trap.

Who Is Responsible For A Sponge Or Towel Left In A Patient After Surgery--The Surgeon Or The Hospital?

Answer: it depends, and sometimes both are legally liable. Every hospital has written procedures and protocols for the correct counting and inventory of any products utilized during surgery like sponges, gauze, towels, forceps, clamps, needles--you name it. In fact, one or more members of the surgical team usually documents at the end of the procedure that "all sponge/needle counts are correct."

Despite this "documentation," hundreds if not thousands of "foreign objects" are left in patients every year in this country. In a case I co-counseled a few years ago, a surgeon left a large towel inside a patient's chest cavity and, sure enough, the count of objects used during surgery was "correct" in the surgery record.

If the surgeon is an employee of the hospital, the hospital is liable anyway and it really doesn't matter if the surgeon or surgical team was responsible for dropping the ball (or perhaps dropping the sponge is a more accurate phrase).

But what if the surgeon is not employed by the hospital? As pointed out here, some states impose on the surgeon an independent legal duty to verify a correct count at the end of the procedure. If this is the case, both the surgeon and the hospital can be jointly liable for negligence.

In other states, the surgeon is considered the "captain of the ship" and can under certain circumstances be held solely liable. In Ohio, one or both can be held liable, and this makes sense given the fact that hospitals can and should have procedures in place for their surgical team-employees to mandate an accurate count.

But one thing is clear: when something like this happens, you can expect some finger pointing between the surgical team and the surgeon, with each claiming the other messed up the count. It reminds me of an old Bill Cosby comedy album (yes, an album and not a CD, so I'm dating myself) I used to own where he joked that he had re-named his kids "I don't know" and "not me" because that was their standard response when grilled by him after something got broken....