Wednesday, August 12, 2015

Insurance Companies And Motorcycle Accidents: Looking For Blame In All The Wrong Places

Insurance companies will stop at nothing to find ways to blame motorcyclists in car-motorcycle crashes. A recent case I settled on behalf of an injured motorcyclist illustrates this point.

Scenario: my client-motorcyclist entered the intersection with the right of way traveling the speed limit (25 mph). The negligent driver rolled through the stop sign and entered the intersection. Realizing that a crash was imminent, and with nowhere else to go, the motorcyclist laid the bike down to avoid being smashed by the car, and was injured in the process. 

The driver of the car was cited in the crash.

The insurance company for the at fault driver took his recorded statement, and he confirmed that he was going the speed limit. There was little to no damage to the motorcycle, and there were no skid marks. In other words, there was no physical evidence whatsoever that the motorcyclist was speeding.

Months later, the adjuster sent my client a letter (before he hired me) claiming that he was 30% at fault, because (1) he "panicked"; (2) he had ample time to stop; and (3) the driver of the car thought he may have been going 30 mph and was therefore speeding.

Thinking this was b.s., he hired me. How did the adjuster come up with his "you were 30% negligent" figure? He pulled it out of thin air. Why did he take this position? Because he could, and because of the usual tactic taken by insurance companies in many motorcycle-car collision cases: blame the motorcyclist because of the bias and prejudice against motorcycle riders.

After I reviewed the case, I concluded that the motorcyclist did nothing wrong, and reacted in split second fashion to an oncoming 3,000 pound bullet the only way he could have: avoid a T-bone crash by laying the bike down, the only real option he had.

Ohio law is clear that if a motorist has the right of way and is not speeding, he cannot be charged with being at fault in a crash. This, however, did not stop the adjuster from taking a "you were 30% at fault" position. Why did he take this position? In this example, under Ohio law, if you are 30% responsible for your crash, you can recover only 70% of your medical bills, lost wages, and pain and suffering.

Because the adjuster would not back off of this position, we filed a lawsuit. A new adjuster was assigned to the case, and they backed off and finally made an offer that was reflective of the fact that my client did nothing wrong.

The takeway here is that motorcycle accidents are scrutinized much more than crashes involving two cars. The reason is simple: motorcycle-car crashes usually involve more serious injuries, usually to the motorcyclist. Because they have more to lose in a settlement payout or jury verdict, they often resort to nitpicking the motorcyclist's actions in an attempt to save money. Unfair? Yes. But it happens all the time. That's why our phone rings...    

Monday, April 27, 2015

A Neil Young Inspired Mediation Tactic In Personal Injury Cases

By Brian R. Wilson, Esq.

Only the most hard core Neil Young fans (that would include me) have heard of his obscure tune "Walk On" (from his mid 70's album "On The Beach"--a commercial flop but an album that more recent critics have hailed as genius). Unbeknownst to Neil, it offers a great strategy at certain mediation conferences.

For those unfamiliar, mediation is the process where parties  meet informally with a mediator to try to settle a lawsuit or dispute short of a trial. 

Most sane people would rather forego going through a trial and "settle it out of court" if at all possible. In cases of private mediation (where both sides agree voluntarily to mediation and agree upon a mediator), almost all mediators are highly skilled and like the bullpen closer, they successfully close the overwhelming majority of the cases they mediate. 

What is the recipe for a successful mediation? From the plaintiff's standpoint, her attorney's stock in trade is twofold: (1) placing a realistic settlement value on the client's case after the due diligence of fact gathering, depositions, hiring experts, etc. is complete; and (2) managing the client's expectations. There's a LOT more to this, but suffice it to say the client and her attorney need to be on the same page at mediation as to what the settlement demand will be, and what is a realistic, acceptable final offer.

The defendant/insurance company's mediation metrics consist of "risk evaluation." Definition: what is our risk of getting tagged with a verdict we won't like at trial, what are the limits of our worst case scenario verdict, and what are the remaining litigation costs and expenses going forward? In theory, the combination of all these considerations should translate into some sort of realistic mediation settlement.

This is how it's supposed to work. But not all personal injury cases settle at mediation, for many reasons, even when the plaintiff and her attorney have made a realistic settlement demand. Sometimes, insurance companies come to the mediation table with no real desire to resolve the case.

In my experience there are a few tactics that increase the chance that a case won't settle at mediation.

MARCHING ORDERS

Many insurance companies have invested billions in fancy software programs that input all of a personal injury plaintiff's accident data (injuries, medical bills, lost wages, pain and suffering, future care needs and future pain and suffering). The program spits out a settlement figure, and that's about it.

No deviation from the algorithm. The claims representative shows up at mediation with the insurance company attorney and, marching orders in hand, convey "take it or leave it" offer with little to no deviation from that number. 

Certain insurance companies (Allstate and American Family, to name a few), are famous for this. Their message: take the case to trial and beat our offer. Makes for a short and time wasted mediation. You can't negotiate with a robot.

TAKE THE BAIT

This tactic often surfaces in catastrophic injury cases, where the potential for a huge jury verdict is substantial. Occasionally, the insurance company will suggest "early mediation" before the lawsuit gets bogged down with too many depositions and experts.

This olive branch approach sounds good in theory, and there are times when the insurance company is sincere in the mediation offer. But it is often offered with another purpose in mind.

Take for example a young, married wage earner with children, who is killed due to a truck driver's negligence. The effects of the loss of a spouse and parent can be devastating, both emotionally and financially. The grieving family is vulnerable and must withstand this tsunami for years to come, and insurance companies realize this.

Let's assume that, internally, the insurance company has evaluated its risk of an adverse jury verdict in this scenario at $3-5 million. Early mediation may offer it the opportunity to make an offer of $1-1.3 million at the end of a long mediation, well below its own evaluation of risk. There is one purpose for doing so: to dangle enough money on the table to make the family think long and hard about turning down the money out of economic necessity and vulnerability.  

THE FOUR CORNERS STALL GAME

Dean Smith, the late great North Carolina basketball coach, was the architect of the "four corners stall." The idea is to hold the ball for as long as possible while ahead on the scoreboard in order to run out the clock, or force the opponent to gamble on defense and make a mistake. Insurance companies and certain institutional defendants, like nursing homes, will occasionally employ this tactic, with mediation acting as camouflage.

Recently, I litigated a case against a long term care facility. Numerous depositions had been taken, and the trial was close at hand. The timing of the mediation was perfect in that enough information (known as "discovery") had been exchanged that the parties had a good idea of the probable jury verdict outcome.

Yet, at mediation, the facility showed up with a realistically low settlement offer, claiming it needed "more time" to evaluate the case. Truthfully, it needed no more time, and the offer was designed to weaken my clients and make us spend more money on trial preparation. It had the opposite effect of hardening my clients' resolve to see the case through to the end.

Less than one week before the trial, the facility made an offer it should have made three months prior, and the case settled.

When any of these scenarios rear their ugly heads, often the best tactic is to invoke Neil's advice and "walk on." In the right case, it can send a powerful message to the other side that you are prepared to take the case to trial and a verdict.

But it is important to walk on in a professional, emotionless manner without burning any bridges with the other side, for one reason: good mediators will not consider the case closed when one side leaves the mediation table. Many mediators will not view walking on as a failure, but an opportunity to keep the lines of communication and negotiation open, and this will often result in a settlement days or weeks after the "face to face" mediation has concluded.

Hopefully now my parents understand why I blasted all of those Neil Young albums in the house or the car. Educational purposes only.... 

   

          





 



     

Monday, March 30, 2015

When Nursing Homes Fumble The Transfer Process...And What You Need To Know

By Brian R Wilson, Esq.

In the fairy tale movie classic " The Princess Bride," Miracle Max (played by Billy Crystal) is the medieval "pharmacist" responsible for concocting a magic potion to bring hero Wesley back to life from a "mostly dead" state. When asked to hurry the job, he snarkily replies: "You rush a miracle man, you get rotten miracles."

Such is often the case when hospital patients are transferred and become nursing home residents. The rush of the transfer process can sometimes expose nursing home residents to serious harm.


WHAT'S THE HURRY?


From The Hospital's Standpoint: 


When a Medicare patient is admitted to a hospital, the hospital's payment is based on the diagnosis or DRG ("diagnosis related group"), and NOT the number of days spent in the hospital. But there are special "transfer DRG's" that determine a hospital's payment for patients transferred to skilled nursing facilities like nursing homes.

It's complicated. But at the root of it is the possibility that a patient  transferred from a hospital may be due in part to payment and reimbursement rules as opposed to what is in the patient's  best medical interests.    


From The Nursing Home's Standpoint:

Any seasoned nursing home malpractice attorney is familiar with the term "census" or "census development." It refers to a nursing home's efforts to fill as many empty beds as possible. Simple math is the reason: more resident bodies in beds, more $$$. Nursing homes have departments and personnel dedicated to the recruitment and referral of patients from both hospitals and directly from the community. Their Marketing departments work directly with hospitals to stay top of mind for hospital referrals, and their Admissions departments are charged with screening admissions to make sure the nursing home can meet the residents' care needs upon admission.


That's all well and good, but in the rush to keep the census of admissions high, it can be a breeding ground for mistakes, shortcuts, and cutting corners. 


The Rushed Admission...  


The turnaround on a transfer from a hospital to a nursing home can be less than 24 hours. In a recent case I litigated, the nursing home was sent medical information regarding the patient's condition and medical needs, and accepted the patient for a future transfer within hours. So far, so good, but the patient was not transferred to the nursing home until late afternoon on a Friday--some 48 hours later.  Upon arrival, there was no oxygen in the room and no special breathing equipment per the hospital physicians' orders. It was a rushed transfer and admission, and things only got worse because of a series of choices by the nursing home about when to order necessary equipment.


The nursing home had a policy of not ordering certain respiratory equipment until after the patient arrived, for fear of being charged for delivery and use of the equipment in the event the patient did not arrive at the home for whatever reason. Unfortunately in this case, the equipment did not arrive until after the patient died, approximately 12 hours after admission.

 By the time a hospital patient is transferred to a nursing home, the nursing home is supposed to be familiar with the patient's specific care needs. Federal regulations require it: 


Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychological well-being, in accordance with the comprehensive assessment and the plan of care. 


In virtually every case, the hospital sends the physician's orders to the nursing home so that the nursing home can make sure the patient's specific care needs can be met. What's more, the patient typically shows up at the nursing home with a copy of the hospital physician's orders, in case they weren't transmitted before his or her arrival. Yet, despite clear orders and regulations, necessary equipment is sometimes not present when the patient arrives.


The Takeaway...

If your loved one is about to be transferred from a hospital to a nursing home, ask as many questions of the nursing home as you possibly can. Make sure you have a copy of the physicians' orders that will accompany your loved one to the nursing home, and have the hospital explain it to you and go over any abbreviations in the orders.

Make sure those orders make sense to you. And when you arrive at the nursing home, you'll have a good idea what their marching orders are, and what they should be doing to follow them. 










      







Monday, January 26, 2015

Large Truck Wheel Separation Accidents: What Are The Common Threads?

By Brian R. Wilson, Esq.

Imagine a rolling, 200 pound tractor trailer wheel careening toward you at 50-60 MPH when you're traveling at 65-70 MPH and have nowhere to go to swerve or avoid it. This is what can happen:

  (Actual photo of truck trailer wheel after impacting a pickup truck going in the opposite direction on a  four lane, major Interstate)

 Large truck tractor or trailer wheel separation is like a detonated dirty bomb: you never know the true path of destruction or how devastating the damage will be. And the damage is often done in a split second. But a wheel separating and the resulting injuries to motorists is rarely ever the product of a sudden, unexpected, split second event. To understand the reasons for a commercial truck wheel separation, one must first appreciate that a large truck is not a car and a large truck crash is not like a car crash.

Large trucks (defined as vehicles with a gross vehicle or gross combination wright rating as 10,001 pounds) are regulated by federal and state law. Specifically, The Federal Motor Carrier Safety Act (FMCSA) contains very specific regulations involving a myriad of situations affecting large trucks, from hiring of drivers to the operation and maintenance of trucks.

These regulations include obligations on drivers to inspect their rigs both before and after every trip and document that fact. Thus, by reconstructing the driver's activities via log book entries, fuel and other receipts, maintenance and repair records, and other documents, it can yield evidence and clues as to why a wheel separated.

A CASE IN POINT....

A truck driver pulling a trailer on the Interstate suddenly notices that his rear dual trailer wheels have separated from his trailer. They smash into a car traveling the opposite direction, injuring occupants in the car. The truck driver tells the investigating officer that he had no notice of any problems. However...

Nine days before the incident, the truck driver undergoes a routine inspection by Department Of Transportation in a nearby state, and the inspection reveals the trailer's brakes are shoddy and leaking brake fluid, among other violations. The trailer is deemed "out of service" until the brakes can be replaced. A repair facility performs the brake repairs, and to do so has to remove and re-attach the wheels to the trailer.

So why did the dual trailer wheels suddenly disengage nine days later?

Because a lawsuit was filed, both the driver's paper trail, and the wheels themselves, were examined. The wheel holes (through which the bolts slide to accept the lug nuts) revealed a wear pattern that was consistent with a gradual loosening of the lug nuts. We claimed the physical evidence was such that a driver would have noticed a problem either through feeling a problem while driving. or through mandatory pre or post trip inspections, which include wheels and lug nuts.

The other problem was that the lug nuts were either under or over torqued when repairs were made (which was denied by the repair facility). The combination of these two factors led to the wheel separation, in our opinion, and took this incident out of the realm of a sudden, unexpected, "freak" occurrence.

The lawsuit was settled shortly before trial. By stepping back and re-constructing the driver's and the trailer's history before the incident, we were able to show plausible reasons for why a set of wheels could separate just nine days after they were re-attached.

One final note: many of the "retention" periods for certain aspects of a driver's paper trail under the FMCSA are as short as six months. All the more reason to contact an attorney or firm familiar with handling large truck accident cases sooner rather than later.







Sunday, January 11, 2015

Why The Lack Of A Citation Against A Nursing Home Is No Bar To A Negligence Lawsuit

By Brian R. Wilson, Esq.

Nursing homes are regulated by state and federal agencies. As part of their license, nursing homes are required to undergo an annual license certification survey. In addition, they are subject to unannounced annual inspections/surveys.

More importantly, they can be investigated after an individual complaint is filed against them. This sounds all well and good, but what is the likelihood that a preventable mistake in a nursing home will ever see the light of day in the form of a citation against the nursing home? And what effect does a citation or lack of one have on any negligence lawsuit filed against a nursing home?


DO NURSING HOMES HAVE A DUTY TO SELF-REPORT CERTAIN INCIDENTS?

Under Ohio law, nursing homes have an obligation to report incidents of abuse, neglect, and theft of residents' property to regulatory authorities. Abuse and theft appear to be obvious, but what is meant by "neglect?" Federal regulations define it as a "failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness."

In a recent nursing home case I litigated, we claimed a nursing home did not timely secure physician ordered respiratory equipment, which we claimed resulted in harm to the resident. According to them, there was no legal obligation to self-report the incident as an instance of "neglect." Assuming this to be true, what does that say about the relative weakness of the obligation to self-report adverse incidents resulting in harm to residents?

Answer: it's as weak as a cup of tea brewed with an old, used tea bag. Bottom line: if they don't report it, you have to make a formal complaint about the care your loved one received to The Ohio Department Of Health.... or hope the surveyors just happen to find it on their own in the annual survey process
.

SURVEYORS AND UNCOVERING SUBSTANDARD CARE/DEFICIENCIES: A NEEDLE IN A HAYSTACK?

What is the likelihood that a random survey will catch a nursing home error or substandard care that results in harm to a resident? To start with, there are 945 nursing homes in Ohio. Assuming a conservative number of 100 residents per home, that's almost 100,000 residents per year.

State surveyors simply don't have the time and resources to go over the medical charts of every resident to scrutinize whether their care was adequate. As a result, the surveyors will examine a random, representative sample of residents' charts. According to testimony in a recent nursing home case, it was estimated that surveyors randomly sampled approximately 20% of current residents' charts, which included past residents from that same year.

Bottom line: it's hit or miss, and perhaps largely miss, that a survey will ever discover an instance of substandard care, and that assumes the surveyors have access to all charts.
.

FINDING THE "NEEDLE" DOESN'T MEAN THE NURSING HOME WILL BE CITED OR FINED 

Suppose you do file a complaint against a nursing home. If the appropriate agencies investigate and do not cite or fine the nursing home, does it prohibit you from pursuing a negligence lawsuit against the nursing home? Not at all. Whether or not the nursing home was cited/fined HAS ABSOLUTELY NO BEARING on your ability to sue the nursing home. Under Ohio law, the results of any survey process are inadmissible in any lawsuit. If the nursing home was not cited, it cannot stand up in court and tout that fact. Conversely, if it was cited, the patient's family cannot introduce that fact into evidence.

Why? I've seen countless cases where the nursing home was not cited, yet it knew it handled the resident's care in a substandard manner, and chose to settle the case, or a jury decided that the nursing home was negligent. And in fairness to nursing homes, juries have concluded that a nursing home was not negligent even in cases where the nursing home was cited by a state or federal agency.

All of this proves one thing: the survey and citation process has its limitations, and any jury that decides a nursing home negligence case does so independently of any survey process.  And that's a good thing.

So D.I.Y. Report the nursing home if you suspect your loved one received inadequate care, come what may of the process. Don't be the needle.....

Monday, October 27, 2014

Follow The Money Trail....And You May Find Malpractice....

Recently a woman sued a Chicago area hospital for using improperly sterilized, dirty endoscopes that allegedly inflicted her and as many as 42 other patients with a nasty bacterial infection known as CRE (carbapenem-resistant Enterobacteriaceae).

This "superbug" is usually contracted in medical facilities, and can be fatal if it enters the bloodstream.

How did this happen? According to a recent article, "manual cleaning and high level disinfection" (whatever that is) failed to remove E-Coli and other bacteria.

Ewwww. Disgusting at a minimum that a used, unsterilized endoscope can find its way into numerous patients AND cause potentially fatal harm.

Despite the presence of the CRE bug in perhaps dozens of patients, the hospital claims there were no lapses of protocols. And despite there being no lapses of protocols, the hospital is now including gas sterilization of its endoscopes.

Now, I'm no expert in how to sterilize all the scopes that are used in volume fashion at a hospital or outpatient facility. But why is the hospital now including more elaborate (and presumably more effective) gas sterilization of its scopes? This is just a guess on my part, but I would suspect that gas sterilization is probably more expensive than manual cleaning, which was considered "good enough"....until this happened.

Bottom line: some "protocols" are more expensive than others. Whether the setting is a hospital or a nursing home, many times the ultimate decision on which policies and procedures to implement comes down to the almighty dollar.

Never forget:  most hospitals and nursing homes are just another form of a big business. Budgets and financials are just as important as other considerations. Although this is not a bad thing per se, when they cause safety shortcuts and cause patient harm, they shouldn't get a free pass from our civil justice system.





Friday, October 10, 2014

What If The Death Certificate Is Wrong?


The cause of death on the "official" death certificate read: "Intoxication." One small problem. The "intoxication" that led to the patient's hospitalization for a broken jaw in a one car accident occurred about 10 days earlier. After successful jaw surgery, which included wiring the jaw, the patient was resting comfortably and was soon to be weaned from the tracheostomy tube and ventilator, in preparation  for discharge.

Unfortunately, on post op day 10, a nurse dislodged the patient's trach tube while suctioning it. A cascade of medical errors followed, including the inability to re-insert the trach tube in the patient's trachea or "windpipe." Consequently, the patient suffocated and died.

A medical malpractice case followed. The issue was whether the hospital staff was negligent in dislodging the trach tube and/or failing to timely re-insert it in the patient's airway. All the medical experts in the case--even the doctors' and hospital's--agreed that the immediate cause of death was cardiopulmonary arrest due to oxygen deprivation.

Yet, we had this "official" death certificate that listed "intoxication"--10 days prior-- as the cause of death, which was dead wrong (pardon the pun). The question is: in a medical negligence or any other civil lawsuit, can the cause of death be tossed out or set aside under certain circumstances? Great question--glad you asked! The answer is YES.

In Ohio, the coroner’s factual determinations concerning the manner, mode, and cause of death as expressed in the coroner’s report and death certificate create a non- binding, rebuttable presumption of the actual cause of death, unless there is competent, credible evidence to the contrary. In other words, the coroner's findings are not set in stone, and can be rebutted if there is good evidence to the contrary.

The reason? Coroners, like any other profession, aren't infallible and don't always get it right. The law recognizes this. In our case, the coroner had apparently confused the immediate cause of death (the dislodged trach tube) and the remote cause of death (the car crash.) for reasons I'll never truly understand... 


The case above settled shortly before trial so the Court never ruled on our motion to toss the coroner's "intoxication" cause of death. But given the overwhelming expert testimony that the dislodged tube cut off the patient's oxygen supply, most likely the death certificate would have been inadmissible at trial.



Tuesday, September 23, 2014

"Are You A Bulldog Lawyer?"

This is a common question that people ask me at the initial client meeting. After all, what client does not want their lawyer to "fight" for their case? The primary source for this expectation has its roots in the vast wasteland known as television. Between law shows showing aggressive and over the top courtroom lawyer betrayals, and countless lawyer TV ads vowing to "fight for you" or to "make them pay," it is little wonder that people may expect that of the lawyer they hire.

But that question is the equivalent of eating a meal of cotton candy for dinner. Little caloric value, not fulfilling, and leaves you wanting for more, for lots of reasons.

After having been a personal injury attorney for 25 plus years, with the battle scars to prove it, you learn a few things. Being a "bulldog," without more, is like that cotton candy meal. I've seen and have gone up against so called "bulldog" lawyers who are long on bombast and hot air and short on common courtesy, civility, common sense, and legal acumen. They run roughshod through everyone--opposing counsel, witnesses, sometimes even the judge. Sometimes the trail of destruction they leave makes it difficult if not impossible to bring a case to an amicable resolution.

When your stock in trade as an attorney is fear, intimidation, yelling and screaming, and pushing and injecting personal emotions into any given situation, well good luck with that. It eventually implodes in terms of the big picture, even if it gives the client a sugar high or a caffeine buzz.

So what is a good set of criteria for choosing an attorney to help you solve any legal problem? In no particular order, competence should be high on your list. How do you measure a lawyer's competence?

First and foremost, ask around. You'll get more from simply asking trusted friends and colleagues than any useless lawyer ad or slick, self-laudatory materials left on your doorstep or mailbox two days after your crash.

Second, what kind of information can you acquire from your attorney or firm for your particular problem? Generally speaking, any written information the lawyer offers in the form of books or reports can be helpful in measuring competence, but you have to be careful here. I've seen law firms that have great looking websites and list their "significant cases,"when in reality they farmed the case out to another lawyer or firm, and are merely taking credit for the results of a case they did no heavy lifting on.

Third, you must ask about the attorney's actual experience in the courtroom if you have a personal injury or criminal case, for example. Here are a few simple questions to ask of any personal injury lawyer: when is the last time you tried an auto or medical negligence case to a jury? How many of these cases have you tried to a jury verdict in the last few years? You need to know this as your worst case scenario, and if your attorney has not seen the courtroom in years, think: paper tiger.

Finally, you need to gauge the attorney's passion for what he or she does and your case. Did the attorney take the time to talk to you in detail, or did you feel like a number or that your time was not really respected or valuable? More than anything else, what kind of vibe are you getting from the attorney? Realistic yet positive? Personable? Disinterested?  Personality of a piece of wet cardboard?

And back to that bulldog thing. There is a time and a place for everything. Generally speaking, in the world of litigation, my prescription is simple: treat everyone like you would like to be treated. Simple decency, kindness, and common courtesy will get you more information than acting like a mad dog tearing through a meathouse. On rare occasions, a witness or a defendant or an expert will be so caustic or rude that they give you permission to take a more firm handed approach.

After all, any dog backed into a corner will know when and how to bite back.





Friday, August 22, 2014

Hospital Tube-Connection Mishaps...More Than a Mere "Oops..."

"The tube just came out. These things happen."

I'm sure thousands of families have been told this in hospitals when any sort of tube, catheter, or other medical device lost its connection with a patient.

A recent report, however, shows that this is frequently not something that "just happens." Rather, it appears to be a problem that is both underreported and largely preventable. According to The Joint Commission, which sets standards for accrediting hospitals, tube misconnections can have devastating consequences:

The New York Times reported on the death of a fetus and expectant mother after
a feeding tube was accidentally connected into the mother’s bloodstream. 6  In 34
various publications, 116 other case studies were found involving misconnections
directing enteral feeding solutions into IV lines. 7  These adverse events resulted in
21 deaths. It is believed that tubing misconnections are underreported; adverse
events related to tubing misconnections are sometimes not reported, especially
when the mistake does not result in harm to the patient, 1  and they are sometimes
reported under another category, such as a medication error. The risk for tubing
misconnection is high, considering that almost all patients admitted to the hospital
are likely to receive an IV. 8  This risk is also seen in other settings.   



Types of misconnections that have been reported to cause serious injury or death or the potential for both include:


  • Feeding tubes connected to IV's;  
  • Limb cuff inflation devices connected to IV's;
  • Epidural solutions connected to  Peripheral or central IV catheters;   
  • Epidural line connected to IV infusions;  
  • Bladder irrigation solution using primary IV tubing connected to  peripheral or central IV catheters;  
  • IV infusions connected to indwelling bladder or "foley"catheters;   
  • IV infusions connected to nasogastric (NG) tubes;   
  • Primary IV tube connected to blood products;  
  • Feeding tubes connected to a tracheostomy tube; or  
  • IV solutions administered via blood administration 

Why do so many tube misadventures occur in hospitals? Two major reasons include (1) health care providers going into "automatic" mode (I prefer to call it "auto pilot" syndrome) due to stress or fatigue, and (2) "spaghetti syndrome"---too many tubes and wires strewn in haphazard fashion. Both are the proverbial "accident waiting to happen."

As you can see, many of these causes are entirely preventable, which is why The ISO (International  Standardization Organization) is formulating new standards that will hopefully spurn hospitals to take measures to prevent tube misconnections from occurring.

Having litigated two misconnection cases, both resulting in death, I can attest to how easily they can be prevented, and how awful they were for a family to accept. Although from the list above some of these tubes and wires have fancy names, most all have one thing in common: they are frequently a loved one's lifeline. You don't need to be an Ivy League trained doctor to know that if you knock out a patient's lifeline, some really bad things can happen... 

 

Thursday, July 24, 2014

This Was Not A Seven Figure Settlement....But Satisfying Nevertheless...

Law firms and lawyers love to brag on websites about a lot of things.

Much of it is useless fluff ("experienced" or "aggressive"attorneys, whatever the hell that means) and some of it can even be quite misleading. Many of those "seven figure settlements" or verdicts a firm lists are not even the product of their own work or expertise. Many firms refer those cases out to another attorney or firm.

All that aside, today was not one of those "seven figure" days for me. In fact, today was a freebie for an elderly couple. Weeks ago their car got hit by a real gem of a nice guy who fled the scene. They weren't hurt but their car was totaled.

The driver was driving someone else's car, so there was a delay of a few weeks in getting the owner's insurance company to appraise the car and investigate the claim. In the meantime, the storage fees on the car exceeded $1,000, through no fault of the elderly couple.

This particular insurance company, who I have had consistently HORRIBLE dealings with, tells these nice folks: "we're only paying half of the storage bill since it's too much." They offered him $1200 on his car, and told him he could pay the rest of the storage bill out of the $1,200 offer.

They did this for one reason: they could. They figured they could strong arm these folks into caving in, because no lawyer would take their case over a $500 storage bill dispute.

They called me after an Internet search, and I told them to come in after hearing their story. I had an idea. I told them that if I call the adjuster on their behalf, it would probably go nowhere because the first thing out of his mouth would be "it's company policy," followed by "go ahead and sue if you want," figuring that no lawyer would do that over such a small amount.

So here's what I told them: "Go down to the local municipal court, take out a small claims petition, and bring it back. I'll help you fill it out and then take it back and file it. THEN I'll call the adjuster and my guess is that it will get worked out, since now they'll have to send a lawyer and an insurance rep to the hearing."

Almost a week later, I finally get a return call from a new adjuster. After haggling over a few facts, I told him that my clients sued their insured and if they did not want to pay the storage they could tell the magistrate at the hearing why a nice elderly couple should have to incur any storage fees for a hit and run driver and a delayed insurance investigation that led to the high storage bill.

And I told them I would be at the hearing representing these folks for free.

Next day, it's the adjuster on the phone: "we'll pay the storage bill."

Happy ending. Clients got what they wanted, and weren't out anything in the process.

I made no fee but made new friends. I guess it's a good sign that after 25 years, what happened to some nice folks still ticks me off enough to help with a practical solution to the problem. No burnout yet. Still like what I do.

It's certainly not headline grabbing. And it won't pay any overhead. But it sure is satisfying as hell. Call it a "zero figure settlement." Now there's some real bragging.....



Wednesday, July 9, 2014

Bulges, Herniations, and Extrusions, Oh My! Injured Spinal Discs After A Car Crash (And What It All Means)

  By Brian R Wilson, Esq.

 Car collisions can frequently cause injuries to the lumbar and cervical spine. When the spinal discs or "shock absorbers" of the spine are injured, it can mean pain, immobility, numbness down a limb, and even require therapy and surgery. Anyone who's ever had some sort of spinal disc injury can attest to the pain they can cause.

But what's the difference between a bulging, herniated, extruded, or torn spinal disc? In a recent trial I had in an auto collision case, a local chiropractor did an excellent job of explaining the difference between the various forms of injuries to spinal discs, which you can read below:                                                                


16   Okay.  Thank you.  So have we covered all  

17         the fractures then?                                

18   A.    I believe so.                                      

19   Q.    All right.  Let's move to other injuries or        

20         conditions that you discovered in  ______'s  

21         spine.                                            

22   A.    Okay.  The --                                      

23   Q.    Go ahead.                                          

24   A.    We did a standard orthopaedic neurological        

25         examination when she first entered our office.    


                                                                    16
 1         This examination is designed to allow me to provide

 2         a working diagnosis, which is what the problem is,

 3         what's generating the pain, what's the pain        

 4         generator.  And on this examination we saw greatly

 5         decreased range of motion in the lumbar spine and  

 6         in the cervical spine, pain on motion, orthopaedic

 7         tests, which were designed to let me know, again,  

 8         how severe the injury is, is it just a pulled      

 9         muscle, a strain/sprain, a pinched nerve.  Some of

10         them were -- she was in too much pain to perform  

11         them.  There were two orthopaedic tests that led me

12         to believe that she may have a herniated disc in  

13         her lumbar spine.  Specifically Kemp's test and    

14         Valsalva's test.                                  

15                 Along with that, she was experiencing      

16         radiating leg pain.  Because of those findings, I  

17         ordered immediately the MRI, and the MRI did show,

18         along with the pelvis fracture, it showed herniated

19         discs in the lumbar spine level.  The herniated    

20         discs were classified as extruded in nature and    

21         they were at L3/L4, L4/L5 and L5/S1.              

22   Q.    Okay.  Could you show us on the model.            

23   A.    Yes.                                              

24   Q.    And then explain to us what an extruded herniated  

25         disc is.                                          


                                                                    17
 1   A.    Okay.  Your discs are the shock absorbers in      

 2         between each vertebrae.  They're designed for low  

 3         transfer and for support.  They're made of mostly  

 4         water.  They're soft tissue.  A herniated disc is  

 5         when enough pressure is on that, that it will want

 6         to come out.  In layman's term, a slipped disc.  A

 7         bulging disc is the beginnings of a herniated disc.

 8         The red on this picture is a herniated disc, on    

 9         this model, if you can see that.                  

10   Q.    Okay.                                              

11   A.    On this model here, this might be a better model,  

12         the red bulging out here is a herniated disc.      

13   Q.    All right.                                        

14   A.    Okay.  The danger is, it will come out really close

15         to this nerve and it will pinch.                  

16   Q.    And it will break off?                            

17   A.    It will break off.  A nerve's like overcooked      

18         spaghetti in real life.  It only takes the weight  

19         of a quarter to cause 60% nerve malfunction.  It  

20         doesn't take much weight.  So an extruded disc is a

21         disc that is bulging even further than most, and --

22         can I use my board now?                            

23   Q.    Absolutely.                                        

24   A.    This would be a good time to explain this.        

25                 MR. WILSON:  Let's go off the video.      


                                                                    18
 1              (Off the record discussion was held)          

 2   A.    Okay.  On disc, if we have a normal disc, looking  

 3         at it from top to bottom, and that would be like  

 4         this, (Indicating).  If I'm looking at this        

 5         vertebra like this, there's the disc, this is the  

 6         disc.  A normal disc would have no type of bulge or

 7         deviation around there.  It would be nice and it  

 8         would be smooth and round.  If we have a bulge,    

 9         then we're going to start to see this right --    

10         right there, and a radiologist will measure this to

11         determine if it's a bulge or if it's actually a    

12         true herniation.  So this is a bulging disc.      

13                 Then as we get worse, we have what's called

14         a protruded disc.  Now the bulge has grown more,  

15         and there's a measurement from here to here.      

16         (Indicating).  They measure how long it is here and

17         how deep it is here, and then that measurement    

18         tells them if it's a protruded disc or not.  That's

19         the first stage of a herniated disc, okay.  You    

20         would have a nucleus in the middle, and it's      

21         wanting to come out, it's like a jelly-filled      

22         doughnut, and it's pushing, it's pushing, it's    

23         pushing out.  There's our nucleus.                

24                 Then the next disc you would have would be

25         the extruded disc, and on the extruded disc, the  


                                                                    19
 1         nuclear material pushes out, and it actually breaks

 2         the annular fibers that holds that nucleus in      

 3         there.  There's a tear in the fibers, which her MRI

 4         report also said annular tear, so it fits right    

 5         along with an extruded disc.  So this is a        

 6         protruded disc, this is an extruded disc.  Then as

 7         it gets worse, you get a migrating disc.  That    

 8         extrusion will want to float or want to migrate up

 9         and down the spinal column, okay.  And that's      

10         nuclear material.  The nucleus, like that.        

11         (Indicating).  Then the next one, which is the    

12         worst of the worst, is you have a migrating disc  

13         that becomes a fragment.  It broke off in there.  

14         Okay.  This is almost always surgery right here,  

15         okay.                                              

16                 So out of all these discs right in here, we

17         know through studies that this extruded disc is    

18         kind of special because it takes a trauma to cause

19         it.  Studies show that a majority of patients might

20         have a herniated disc and not know it and live    

21         asymptomatically.  That's true for a protruded    

22         disc, but for an extruded disc, when there's a    

23         annular tear, there's almost always over 90%, 95%  

24         chance that there was a trauma that happened that  

25         caused it, meaning a person will know if something


                                                                    20
 1         happened for that to occur.  They weren't just    

 2         living with it and then all of a sudden it creeps  

 3         up and comes on when they bend or twist the wrong  

 4         way.  So these are the different types of herniated

 5         discs.  And our patient  had three of these, at

 6         L3/L4, L4/L5 and L5/S1 on the MRI.                

 7   Q.    Thank you.                                        

 8   A.    Thank you.                                        

 9   Q.    Let's return you to your seat so you don't have to

10         stand there.                                      

11              (Off the record discussion was held)          

12   Q.    Generally speaking, what kind of problems can an  

13         extruded disc create in patients?                  

14   A.    Well, it depends on how much pressure's on the    

15         nerve root.  If there's a lot of pressure on the  

16         nerve root, it could be anything from just slight  

17         numbness or tingling down a leg or down an arm, to

18         loss of bowels control, a loss of bladder control,

19         loss of leg function, loss of muscle function.  It

20         all depends on how much pressure is on that nerve.

21         It only takes the weight of a quarter of pressure  

22         to cause 60% nerve malfunction.  So it's important

23         to try to get that disc off as soon and as fast as

24         possible and to start the healing process as fast  

25         as possible to make the strongest repair, strongest


                                                                    21
 1         scar formation, so that it won't do that.  That's  

 2         why we ordered the MRI as soon as we did.
 

Tuesday, July 8, 2014

Does A Misdiagnosis Mean That You Have A Viable Ohio Medical Malpractice Case?


Not necessarily.  First, let’s start with some basics.  A misdiagnosis MAY mean that a doctor was negligent.

Example:  You are involved in a single car crash.  You’re transported to the local ER, where an ER doctor performs a physical examination, and notes severe tenderness of your cervical spine.  An x-ray of your cervical spine is ordered and read by a radiologist, who reports that there are no fractures.  Her diagnosis is a “cervical sprain.”

You are released from the ER, but your pain is getting worse.  In fact, it’s to the point that you can barely move your neck.  You see a local orthopaedic surgeon two weeks later, who takes another x-ray, and, minutes later bursts into the room and says:

“You need to go to the hospital immediately.  You have a broken neck!”

The orthopaedic surgeon eventually reviews the original ER x-rays and confirms that the fracture was indeed present on the original x-ray.  It was there all along.  The radiologist misread the x-ray. 

A MEDICAL MALPRACTICE CASE IS LIKE A THREE LEGGED STOOL

Just as a stool has three legs, you need to prove 3 things in any medical negligence claim: (1) negligence that (2) directly caused (3) losses and harms, known as "damages." Unless you have all three, no winnable case. 

 Was the radiologist negligent in misreading the x-ray?  Yes. The 1st leg of the stool is secure. Does this mean you have a viable medical malpractice case for the misdiagnosis of your broken neck? It depends.  Let’s add to the fact pattern.  Assume that in the two week period between your discharge from the ER and the discovery of your broken neck, the fracture has become “displaced.”  Definition:  the fracture has shifted or moved from its original position, which is now potentially life-threatening because it may occlude or pinch the spinal cord.

Why did your neck fracture move or become displaced?  Because of the lack of a hard neck collar that should have been secured to your neck in the ER, which, at a minimum, is required to immobilize a broken neck.

Because your fracture is now slipped/moved/ displaced, there is only 1 option:  surgery to repair the fracture, followed by one of the most dreaded post-operative devices known to patients:  the “halo brace.”  This medieval  torture device is screwed into your head for weeks after surgery to make sure the fracture maintains proper alignment, which promotes proper healing.

The negligence and delay in properly diagnosing the neck fracture directly caused your broken neck  to deteriorate. The 2nd leg of the stool---direct causation or cause and effect--is met. The harms and losses directly caused by the negligence and delay--the surgery, halo brace, and other assorted miseries---secure the 3rd leg of the stool--damages.

Now, let’s change things a bit.and assume the same misdiagnosis and two week delay in diagnosing your neck fracture, but with a critical difference.  Instead of ordering you to the hospital, your orthopaedic doctor tells you:

“I have bad news and good news.  The bad news is that your neck is broken. The good news is that the fracture is still intact, and you can be fixed with wearing a hard neck collar.  We don’t have to operate.”

Is the first leg of the stool still present?  Of course – you were negligently discharged from the ER with a broken neck!

However, the two week delay in diagnosing your broken neck did not make a difference in your outcome, nor did it make matters worse.  Had they diagnosed your neck fracture in the ER and placed a hard neck collar on your neck, you’d still be in the same boat from a healing standpoint because the nature of the fracture did not change.

This is a classic case of negligence without the 2nd leg of the stool:  direct causation between the misdiagnosis/two week delay and your ultimate outcome.

Does it mean the radiologist gets a free pass for misreading your x-ray in the ER? Probably.  Fair?  Not really, but that’s Ohio law.

These two alternating scenarios prove the point that each medical malpractice claim is unique, and does not usually lend itself to easy, black and white answers.


Here's the takeaway: with  few notable exceptions (like cutting off the wrong leg or leaving a large towel inside a body cavity after surgery), any “medical malpractice attorney” who can tell you after a 10 minute phone conversation that you have “a good case” is probably smoking something. Think about that if you're scouring the Yellow Pages or The Internet for "aggressive" or "experienced" medical malpractice attorneys... 

Monday, July 7, 2014

Will You Get Full Compensation In Your Ohio Personal Injury Case For Your Permanent Injury?

Before 2005, yes. After 2005, maybe not. Why was 2005 a watershed year on this issue?

Two words: "tort reform." What's that, you say? In 2005, The Ohio Legislature passed laws or "caps on damages" to limit what you can recover in personal injury lawsuits, commonly known as "tort reform." How do these limits work? An example hopefully brings this to light.

Let's say an impaired or fatigued truck driver is in violation of the federal motor carrier hours of service rules (the 14-hour driving window limit, 11-hour driving limit, or the 60-hour/7-day and 70-hour/8-day duty limits), and he falls asleep at the wheel, crashing his 82,000 rig into the back of your car.

The good news is that you survived. The bad news is that you broke 11 ribs and your leg, in the form of a tibia-fibula fracture. You also sustained a closed head injury. You spent a month in the hospital, including placement of a metal rod in your leg in an effort to reconstruct what's left of your tibia and fibula.

You missed a year of work, lost $50,000 in wages, and incurred $200,000 in medical bills. After a year of therapy, you no longer walk with a profound limp, but you have severe pain in your leg daily with activity. Your doctor has told you that arthritis has set in and your leg function and pain is never going to improve. Your leg is so bad that you can't even exercise with it or walk on it for any lengthy period of time. All your hobbies--golf, hiking, bicycling--gone. Finished.

And you're only 40, so you have at least 30-40 more years left on a leg that is permanently injured and will never be the same.

Now let's hit the re-wind button to before 2005. Before tort reform caps were passed, you would have been entitled to recover for the permanent injuries and limitations to your leg as part of your pain and suffering with no limitations. If, for example, a jury valued your past and future pain and suffering for the rest of your life at $500,000, that is what you would have received.

After 2005, The Ohio Legislature arbitrarily capped your compensation for pain and suffering to a sliding scale of $250,000 not to exceed $350,000 maximum for ANY permanent injury unless you meet one of 3 exceptions to the cap:


  • loss of a "bodily organ system";
  • a permanent and substantial physical deformity; or
  • inability to independently care for one's self in every day activities of daily living.



In the example above, the only possible exception to the cap that MIGHT apply to your bum leg is the "permanent and substantial physical deformity." But here's what insurance companies in personal injury cases are at  mediation and before judges: that injuries like these do not rise to the level of "permanent and substantial physical deformities," and therefore the caps/limits apply.

Ultimately, a jury would have to decide whether any permanent injury meets any of the exceptions to the $250-350,000 caps on pain and suffering. But insurance companies are using the caps/limits as leverage for making lesser offers than they would otherwise be making if the Legislature in 2005 didn't hand them this uncalled for club to beat over the heads of legitimately injured Ohioans.

Why did The Ohio Legislature pass these caps? Simple. The business community, spearheaded by The Chamber of Commerce, asked for them. A simple case of ask and ye shall receive. The caps were "sold" to the public as bringing "predictability" to the legal system to keep business costs down AND create jobs, like a magic elixir. That's right--limiting what you can recover for a bum leg at the hands of an impaired or fatigued driver was supposed to create Ohio jobs...

Somebody queue in the cartoon laugh track on that one......

Thursday, June 5, 2014

Will My Personal Injury Case Settle Out Of Court?

This is one of the more frequently asked questions I hear during the initial client interview. It's a major concern for my clients, because most folks want to go through a trial like they want a root canal.

Settlements "out of court" are always preferred, but it only makes sense if the offer truly reflects a fair trade value for all the hardships an auto or motorcycle accident victim endures. The good news is that in these type cases, the overwhelming majority will settle without having to go to trial.

But what about the remaining 10%? How does a personal injury attorney know which cases will require filing a lawsuit and possibly going the distance, in the form of a jury trial? An example may shed some light on this.

My client was involved in a bad broadside crash. She had numerous fractures and a few herniated discs. She spent 6 months in rigorous rehab trying to recover from her injuries. The at fault party's insurance company was notorious for making lousy offers in these type cases. Knowing this, I informed her at the initial meeting that the odds were fairly good that we'd have to file a lawsuit because I anticipated a less than optimal offer.

True to form, the insurance company made a lousy offer. In fact, it was insulting. So we immediately filed a lawsuit. We took some depositions and then attended a court ordered mediation. A mediation is an informal process where the parties meet with a mediator, who tries to see if the parties can agree on a fair compromise and settle the case. The adjuster for the at fault party's insurance company was there, which is typical.

The mediation lasted 28 minutes. The insurance company increased it's offer by a whopping $750 from its previous incredibly stupid and lousy offer. We were headed for trial.

We went to trial, and the jury returned a verdict that SUBSTANTIALLY beat the insurance company's last offer. Why is this important? Because when you are choosing an attorney to represent you, you need to know there are many personal injury firms that will NEVER go to trial, and probably couldn't even find the courtroom with Google Maps. Many are what I call "settlement mills," meaning they extract the highest offer from the insurance company, and convince or even strong arm the client to accept it, even if the offer stinks.

These firms either don't want to be bothered with the increased work associated with going to trial, or are afraid to try a case. And the dirty secret is that many "personal injury" firms boast that they are "aggressive" or will "fight" for their clients. That's why the majority of attorney advertising is about as useless as eating a meal consisting of cotton candy with a side of circus peanuts. Little to no caloric value or substance, and no ability for the client to decipher whether the firm they've hired are paper tigers, or can or will actually go the distance if necessary.

There's a saying that applies to this business: "You gotta know when to hold em and when to fold em." What you don't want is an attorney that always folds them, no matter what, and does a real disservice to the client.  

 

Friday, May 23, 2014

Do You NEED A Personal Injury Attorney To Settle Your Claim? Maybe Not (But You May WANT One...)

Recently I decided to take on the task of fixing a running toilet. In the interest of full disclosure, being handy man around the house is not one of my strong suits.

General grunt labor--mowing, trimming, mulching, gardening? I'm all in and I'll outwork anyone. Home repair--electrical, plumbing, fiddling with small engines and appliances--not so much. My two general rules of home repair are (1) force and jam everything; and (2) if it breaks it needed to be replaced anyway.

And so it was with my feeble attempt at fixing the toilet. After watching a few YouTube videos, I thought I was up to the task. Long story short, after about 2 hours, I said to my wife--"to hell with it" and called the plumber, and $158 later, all was well with the toilet. I'd like to think that, eventually, I could have cracked the toilet code without cracking the toilet, but I also realized that I would have spent way too much time fiddling with a toilet on a weekend (and, after all, the walleye are starting to bite), with no guarantee that I could have fixed it.

Lesson: I probably NEEDED a plumber to complete the task. Personal injury cases are no different. Frequently, you'll NEED one to help you, particularly if you've had any kind of follow up treatment after your collision, such as continued visits to your doctor or chiropractor, physical therapy, diagnostic tests, etc. This is where it can get complicated when you go it alone with the at fault insurance company's adjuster.

There's a TON of mistakes you can make without even knowing it, as I have written about in our free book: "Your Ohio Accident: Sorting Through The Insurance Maze." But what if your auto accident injury claim is relatively straightforward? What if the adjuster promised to "work with you" and you're inclined to give it a shot on your own?

Recently I met with a man whose 18 year old son was in a collision. He went to the ER, had a few follow up office visits with the family doctor, and a brief stint of physical therapy. He was inclined to try to resolve his son's claim on his own. I explained some of the issues he faced, and answered some practical questions he had about who was going to pay the medical bills, the release, etc.

There were a few things I pointed out that he hadn't thought through. At the end of the meeting, I told him that a good number of my clients realize they don't have a significant injury claim, but they're tired of dealing with all the paperwork, the phone calls, and worry about not tying up loose ends that may come back to bite them after they settle the case. They are happy to turn the whole file over to me with the trust and knowledge that the claim will be competently negotiated and that all straggler issues, like accounting for, negotiating, and paying all outstanding bills and reimbursement and subrogation claims, will be finalized.

I left the decision to him. Two hours later he called and said: "I want you to handle it and get it off my back."
For him, hiring an attorney for his son was more a case of WANT rather than a matter of NEED. It was more about washing his hands of the aggravation than worrying about the value of his son's injury claim.

I told him I can relate to that, just like my call to the plumber.....

     

Monday, May 5, 2014

Why We Do What We Do....

Over the weekend I received the nicest thank you from the son of an elderly couple I represented. His Mom and Dad were involved in an auto accident, and the son contacted me after doing an Internet search.

 Long story short, Mom was injured, had a fair amount of treatment, and the family had been dealing on their own with the insurance company for months. After getting mixed messages as to the adjuster's intention to settle the claim on fair terms, they called me.

It was a straightforward case and after gathering all the medical records and evaluating the claim with the clients, we were able to successfully resolve the claim with the at fault driver's insurance company.  It wasn't a "big case" as that term goes.

But no matter the case, the real problem accident victims face when dealing with the insurance company on their own is the lack of a frame of reference as to whether what they're being told or offered is fairly accurate of a load of nonsense. They have no measuring stick with which to gauge what they're being told. Most folks who are injured after a crash  are concerned that their bills and other out of pocket losses will be taken care of, and  they are treated fairly by the insurance company with a decent offer. And they don't want any loose ends to crop up after the case is resolved.

These goals are well within reach even in cases not involving serious or catastrophic injury. The son's heartfelt thank you for helping his elderly parents meant much more to me than the fee that was generated.
Thank you's like that make Monday mornings a lot more easy to take.....!




Wednesday, April 16, 2014

Don't Just Stand There--Take A Picture!

If a picture is worth a thousand words, a good picture in a personal injury claim might be worth thousands of dollars in certain situations. A recent call from someone injured due to a collapsed  residential structure reminded  me of the importance of taking good pictures after an injury.

A few years back I resolved a case on behalf of a tradesman who fell through a set of poorly built temporary stairs at a residential building site. The treads collapsed as he was walking down the stairs. They were nailed to the stringer (the sides of the step assembly) without support blocks underneath the treads, so that the treads were supported only by nails driven through the side of the stringers and into the treads.

Not a good design and not safe. Consequently, he fell 20 feet down the stairwell and onto the basement floor, shattering his leg. Now here's the interesting part. He was working alone (it was a weekend), and was discovered by other tradesmen who arrived at the scene. They quickly arranged for him to be taken to the hospital.

Thankfully, he had called his wife and told her to send someone to pick up his tools. That person took pictures of the collapsed steps and the sheared treads. These pictures proved to be invaluable because the contractor replaced the stair assembly, took no pictures, and got rid of the evidence.

The pictures of the stair remnants allowed an architect to reconstruct what caused the stairs to collapse and give an opinion at trial that they were negligently constructed, which resulted in a successful resolution of the case. But for those pictures, the case would have been more difficult if not impossible to win.

Particularly in cases involving injury at a premises or work site, documenting the scene with pictures can preserve it for later analysis. And it's naive to presume that the owner or contractor will preserve any incriminating evidence. What's more, in auto accident cases, all too often local law enforcement will fail to take pictures of vital evidence of the vehicles or the scene.

In this age of even the cheapest phones with a camera function, don't be afraid to use it! It may end up being the breakthrough evidence in your injury claim.

 

Wednesday, March 26, 2014

Client's Hard Work And Honesty Brings Good Jury Verdict

Last week I tried a personal injury/auto accident case to a Stark County jury. There's an important lesson from that trial that anyone injured in an accident case should know.

Long story short, my client was broadsided in a bad crash. She sustained 4 broken ribs, a fracture to her sacrum (which is actually part of the pelvis), and three herniated discs in her lumbar spine. Bad injuries, many of which no therapy could help--only time and immobility.

Despite being really banged up, she did not "milk" her claim and try to pad her losses and run up tons of medical bills. She made the choice to return to her supervisor's job 6 days after the crash, reasoning that since she was in a lot of pain no matter what she did, she might as well return to work.

Her next 6 months were chock full of incredible pain with breathing, sitting, standing, sleeping--essentially everything was affected by all of her fractures.

She gutted it out with 40 grueling visits to her chiropractor, family and orthopaedic doctor, and lots of physical therapy and massotherapy to heal her herniated discs. She never missed an appointment, and scheduled all of her medical visits around her work schedule, taking some 75 hours of personal time from work.

She got her life back in about 6 months, when her chiropractor testified that he anticipated initially it would take 8-10 months of rehab for her to get better. Basically, she did everything she could to MINIMIZE her losses. Her healthy lifestyle before the crash was important to her and she was determined to get back to it as soon as possible.

The insurance company for the negligent driver made an incredibly lousy offer before trial, making the decision to go to trial easy. They no doubt were relying on the fact that she healed rather quickly, so the case was no big deal.

The jury did not see it that way. They returned a verdict that substantially beat the insurance company's last offer. They did this not even knowing any information about the insurance company's last offer, since negotiations between the parties are inadmissible in Ohio and almost all other states.

Bottom line: the jury admired her fortitude and laser like focus to get better and get on with her life despite all of her injuries. They did not penalize her for healing in less time than the average person.

The reason for their fair verdict was simple in my opinion. Juries often come into a case skeptical of the person bringing a lawsuit and his or her attorney, and not without some surface level justification for their skepticism. After all, they hear stories of people trying to "cash in" from a personal injury lawsuit, read about the occasional goofball frivolous lawsuit, and get bombarded by offensive solicitations in their mailboxes after a minor fender bender.

The best antibiotic for this skepticism is an honest, hard working, determined client who is simply doing everything she can do to get better.

She made my job a lot easier, and it's proof that juries will often do the right thing when they recognize human decency and effort.

Monday, March 10, 2014

My State Passed Damage "Caps"--How Do They Apply To My Injury Claim?

I got this question from an audience member at a recent speaking engagement. It was a good question, simply because most people don't realize that Ohio, like 32 other states, passed limits or "caps" on what Ohioans can recover in a wide variety of injury lawsuits.

Let's set aside the damage caps The Ohio legislature passed for medical negligence or malpractice cases. Believe it or not, they are different than the damage caps passed in OTHER personal injury lawsuits, like auto accidents, defective products, and injuries to patrons in stores, for example. I'll leave the medical malpractice damage caps for another post, so stay tuned...

GENERAL INJURY DAMAGE CAPS OTHER THAN MEDICAL MALPRACTICE CASES

If you're injured by a negligent motorist, for example, you can collect your lost wages, medical bills, and other "tangible" items of damage (the things we can add with a calculator) at 100%--no limits there. But for your "intangible" losses--the things we all hold dear and what I refer to as "human losses," Ohio law limits what you can recover.

These intangibles would include the physical pain and disability associated with fractures, surgeries, loads of therapy, loss of hobbies, and the countless other things you love, like volunteering, babysitting your grand kids, etc. You know--the things that bring you joy and pleasure in this world.

The cap consists of your medical bills and other calculator damages plus $250,000 or 3 times your "calculator" damages not to exceed $350, 000--whichever is LESS. This cap applies even if you have a permanent, chronic injury because of someone else's carelessness.

The only exceptions to this cap are (1) a permanent and substantial physical deformity; (2) loss of a limb; (3) loss of a "bodily organ system;" or (4) a permanent physical injury that prevents a person from independently taking care of one's self in every day activities of life.

Bottom line: if a drunk or texting driver smashes you, causing numerous fractures, and you don't meet one of those 4 exceptions, you're limited to either $250,000 or $350,000 plus your calculator damages.

Who pushed to pass these laws? Insurance companies. Why did they want them? To limit what they have to pay in personal injury cases. They argued that limiting payouts on cases like this was good for the economy and good for business, which would create a "good business climate" and therefore increased jobs.

These laws were passed in 2005. They traded your misery and limping around on a bum leg due to a careless drunk driver for a "good business climate."

So it's fair to ask almost a decade later: Where are all these jobs that were promised? What did we Ohioans get in exchange for limiting what insurance companies pay for texting drivers who maim motorists?

It's really hard to explain this to clients faced with these caps in their cases when they were simply minding their own business and got plowed by an irresponsible driver. It's even harder for them to accept these arbitrary limits when I explain to them that their state representative (whom they voted for) happily endorsed and voted for this law....